R v Koranteng

Case [2016] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION:

R v Koranteng [2016] QCA 299

PARTIES:

R
v
KORANTENG, Kwaku
(appellant)

FILE NO/S:

CA No 187 of 2015
DC No 643 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – Date of Conviction: 6 August 2016

DELIVERED ON:

18 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2016

JUDGES:

Morrison and Philippides JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellant was convicted of one count of rape, one count of sexual assault and one count of depravation of liberty, all of which occurred on 3 August 2014 – where the jury failed to reach a verdict in respect of one count of rape and one count of sexual assault, both of which allegedly occurred on 27 July 2014 – where the appellant and the complainant worked together at an aged care facility – where the acts were alleged to have occurred on the evening of 3 August 2014, after the appellant and complainant finished a shift at the aged care facility – where the appellant offered the complainant a lift home – where the complainant initially declined the appellant’s offer because she was concerned the appellant liked her and because of the incident on 27 July 2014 – where the complainant subsequently accepted the appellant’s offer on the basis the appellant said he understood they could only be friends – where, upon the appellant and complainant entering the car, the appellant proceeded to kiss the complainant – where the appellant then sucked, kissed and bit the complainant’s breasts (the sexual assault count) – where the appellant then put his finger into the complainant’s vagina and licked her vagina (the rape count) – where the complainant attempted to exit the vehicle but it was locked (the depravation of liberty count) – where there were inconsistencies in the complainant’s evidence about the events of the evening and the accounts she gave to other people – where the appellant argues aspects of the complainant’s evidence were implausible – whether the verdict is unreasonable or insupportable having regard to all of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO A MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – NON-DIRECTION – where the trial judge did not direct the jury on mistake of fact – where the appellant’s trial Counsel conceded mistake of fact did not arise on the evidence – where the complainant’s evidence was that she repeatedly indicated her lack of consent to contact with her breast and vagina – where the defence case was conducted on the basis there was consensual sexual conduct which immediately ceased upon the complainant saying no to the appellant – whether there was…

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AGLC
R v Koranteng [2016] QCA 299
Case
[2016] QCA 299
Decision Date

CaseChat Overview and Summary

The case of R v Koranteng involved an appellant convicted of one count of rape, one count of sexual assault, and one count of deprivation of liberty, all occurring on 3 August 2014. The appellant and the complainant had worked together at an aged care facility. The events in question took place after their shift, when the appellant offered the complainant a lift home, which she initially declined due to concerns about his intentions and a prior incident on 27 July 2014. However, she later accepted, and upon entering the car, the appellant engaged in non-consensual sexual acts. The jury failed to reach a verdict on two earlier counts related to an incident on 27 July 2014.

The primary legal issues revolved around whether the verdict was unreasonable or insupportable, considering the entirety of the evidence. The appellant argued that certain aspects of the complainant's evidence were implausible, and that the trial judge’s failure to direct the jury on the defence of mistake of fact amounted to a miscarriage of justice. Additionally, the appellant contended that his legal representatives’ failure to advise him of the option to call character evidence, which could have portrayed him as a loving and spiritual husband, also amounted to a miscarriage of justice. Lastly, the appellant claimed that the trial judge’s specific direction on motive to lie, without a more general direction, resulted in a miscarriage of justice.

The court found that the jury's verdicts on counts 3, 4, and 5 were not unreasonable or contrary to the evidence. The inconsistencies in the complainant’s accounts were considered reconcilable given the nature of the offences and the stress they caused. The court held that there was no obligation on the trial judge to direct the jury on mistake of fact as no evidential basis existed for such a direction. Furthermore, the court found no miscarriage of justice in the failure to advise the appellant of the option to call character evidence or in the specific direction on motive to lie, as the jury must have rejected the complainant's potential motive to lie regarding her employment.

The appeal was dismissed, and the convictions were upheld. The court emphasized the need for special respect and legitimacy to be accorded to jury verdicts, as reiterated by the High Court in R v Baden-Clay.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

At the hearing, leave was also sought and given for both the appellant and respondent to rely on affidavit material in respect of ground 3.Background The appellant was born in Ghana on 26 January 1986. His native language is Akan. English is his second language. He attended school in Ghana to Grade 12. He obtained a Higher Education Diploma in accountancy in 2007. In 2012, the appellant travelled to Australia with the intention of studying and working in nursing. He undertook further education and gained employment. In about July 2013, the appellant commenced employment with an aged care facility. He remained in that employment until he was spoken to by police about the events the subject of the counts on the indictment. The complainant was born on 3 August 1994. At the time of the offences she was a university student. She also worked with the appellant at the aged care facility. She turned 20 on the day of the offences.Offences Counts 1 and 2 on the indictment were the counts of sexual assault and rape in respect of which the jury were unable to reach a verdict. Both were alleged to have occurred on the evening of 27 July 2014 in a room at the aged care facility. Count 1 concerned an allegation the appellant touched, licked, sucked and/or bit the complainant’s breast without her consent. Count 2 concerned an allegation he inserted his finger into her vagina without her consent. Counts 3, 4 and 5 on the indictment were all alleged to have occurred on the evening of 3 August 2014 after the appellant and complainant had finished their shift at the aged care facility. Count 3, deprivation of liberty, concerned an allegation the appellant locked the door of his motor vehicle, preventing the complainant from leaving that vehicle. Count 4, sexual assault, concerned an allegation the appellant touched and/or licked and/or sucked and/or bit the complainant’s breast without her consent. Count 5, rape, concerned an allegation the appellant licked the complainant’s vagina and inserted his finger into her vagina without her consent.Trial At trial, the Crown called the complainant and 10 other witnesses. The appellant elected not to give or call evidence at trial. The defence case was that the complainant was not a credible witness and that, to the extent there had been touching and kissing of the complainant by the appellant, that conduct was consensual. Having regard to the conduct of the case, it is relevant to detail the complainant’s evidence as a whole, including in respect of counts 1 and 2. Even though the jury was unable to reach a verdict on those counts, that evidence is relevant to an assessment of whether it was reasonable for the jury to accept the complainant’s evidence on Counts 3, 4 and 5 as reliable and credible.Complainant’s Evidence The complainant said on 27 July 2014, a Sunday, she was working at the facility as a personal carer. Her shift started at 1.45 pm and ended at 9.30 pm. The appellant was also working as a personal carer that day on the same shift. The complainant knew the appellant was a fellow personal carer, but did not know his name. She had not previously spoken to the appellant. At the time, there were a lot of personal carers working at the facility. The complainant often worked with different people every shift.

Evidence

Evidence Before The Court

Having regard to the conduct of the case, it is relevant to detail the complainant’s evidence as a whole, including in respect of counts 1 and 2. Even though the jury was unable to reach a verdict on those counts, that evidence is relevant to an assessment of whether it was reasonable for the jury to accept the complainant’s evidence on Counts 3, 4 and 5 as reliable and credible.Complainant’s Evidence The complainant said on 27 July 2014, a Sunday, she was working at the facility as a personal carer. Her shift started at 1.45 pm and ended at 9.30 pm. The appellant was also working as a personal carer that day on the same shift. The complainant knew the appellant was a fellow personal carer, but did not know his name. She had not previously spoken to the appellant. At the time, there were a lot of personal carers working at the facility. The complainant often worked with different people every shift. The complainant said at around 2.30 pm that day, she and the appellant were involved in caring for a female resident who commented they looked like they were a couple. The resident said they looked “really good together”.[1] The complainant thought it was funny at the time, noting the female resident had a bit of dementia. The complainant said she laughed at the comment and said, “Oh, he wishes”. The appellant replied, “Oh, yes I do.”[1]AB 19/1. The complainant said she thought it was a joke and throughout the shift she and the appellant were saying to residents they were together and that they were getting married and joking along those terms. The complainant accepted it was “a little bit of flirting”.[2] At one point, the appellant was trying to hold the complainant’s hand. The appellant also put his arms around her and kind of hugged her on the side. The complainant said it was not a big deal.[3][2]AB 19/8.[3]AB 74/3. The complainant said after some time, she realised this behaviour was unprofessional and inappropriate and backed off. She estimated this was at the middle of the shift. When the shift finished, the appellant came in to where the complainant was helping a resident requiring very palliative care. The appellant told the complainant he was leaving and had his arms out ready for a hug. The complainant felt it was okay to give him a hug and hugged him back. The complainant said she hugs lots of people generally. As soon as the appellant hugged her, the complainant realised it was quite intense. It went on for longer than she expected, causing the complainant to back away a little bit. The complainant said the appellant put his hands to her face, holding it. The complainant knew he was going to kiss her. The complainant said, “We shouldn’t be doing this”. The appellant then kissed her “open mouth, tongue and very aggressive”. The complainant did not stop him or say no. She did not pull away. The complainant let him tongue kiss her and she tongue kissed him back. She said it was purely a reaction.[4] The complainant said, “I’d actually never kissed with tongue before that, so it was my first experience, and that’s when I started to say stop”.[5] The kiss lasted a long time. The appellant had his hands on her face the whole time and had control of that situation.[4]AB 67/7.[5]AB 22/38 – 40.

Decision

Reasons for decision

There is no basis to conclude that the failure to give a more general direction as to motive to lie has deprived the appellant of a fair chance of acquittal or has resulted in there being a substantial risk that an innocent person has been wrongly convicted of the offences. There has been no miscarriage of justice. The appellant fails on this ground.Conclusions The verdict of the jury in respect of counts 3, 4 and 5 on the indictment were not unreasonable or contrary to the evidence. They were amply supported by a consideration of the evidence as a whole. It was open to the jury, having considered that evidence as a whole, to find the complainant’s evidence in respect of these counts reliable and credible. There was no obligation on the trial judge to direct the jury in respect of mistake of fact. No miscarriage of justice has resulted as a consequence of the failure to give such a direction. Similarly, no miscarriage of justice has arisen from the legal representatives’ failure to advise the appellant of the option of calling character evidence and in the trial judge’s failure to give a more general direction in respect of motive to lie.Orders I would order that the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submits the trial judge did not err in the directions concerning the complainant’s motive to lie. The trial judge gave an orthodox direction in accordance with the Bench Book. That direction referred to the specific motive to lie. There was no obligation to give a further direction to the effect that people might lie for unknown reasons. Such a direction would have been of no utility in circumstances where the jury, having assessed the complainant’s evidence, must have rejected the suggestion she was telling lies for the specific reason of the potential impact on her employment. No miscarriage of justice resulted from the trial judge’s direction on motive to lie.ConsiderationGround 1 In determining whether the jury’s verdicts were unreasonable, it is necessary for this Court to undertake an independent review of the Appeal Record to determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on each of the counts he was convicted on. Such a review should accord special respect and legitimacy for the jury’s verdicts.[54] The primacy of a jury verdict in criminal trials was reiterated recently by the High Court in R v Baden-Clay.[55][54]MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 624 [59]. [55](2016) 334 ALR 234; [2016] HCA 35 at 246 [65]-[66]. The relevant principles in respect of a ground of appeal based on unreasonable verdicts were summarised in R v SCH:[56]“In such a case, the question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred. However, if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” (Citations omitted)[56][2015] QCA 38 at [7]. A consideration of the complainant’s evidence, including her responses to a prolonged and detailed cross-examination, reveal the complainant gave evidence supportive of the findings of guilty for each of the offences that took place on 3 August 2014. Whilst there were inconsistencies in the complainant’s accounts of the events of 3 August 2014, those differences were reconcilable having regard to the nature of the offences, the stress they had caused to the complainant and the difficulties experienced by witnesses in giving evidence at trial.