R v Ogunseye

Case [2024] QCA 152

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ogunseye [2024] QCA 152

PARTIES:

R
v
OGUNSEYE, Olajide Olusessan
(appellant)

FILE NO/S:

CA No 274 of 2022
DC No 2708 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 18 November 2022 (Moynihan KC DCJ)

DELIVERED ON:

23 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2024

JUDGES:

Dalton JA and Hindman and Crowley JJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of a single count of rape at trial – where the appellant was a medical doctor – where the appellant performed a pap smear on the complainant – where the appellant digitally penetrated the complainant’s vagina under the pretence of checking a rash on her vagina – where the appellant claimed it was a misunderstanding and he had not made a false or fraudulent representation and the act was therapeutic in nature and done for a proper medical purpose – where the complainant gave evidence that the appellant looked like he was leaning in to kiss her after the incident and then said “I’m sorry” – where the appellant made subsequent statements expressing regret and asking for forgiveness – where the appellant requested the complainant delete a recording of their conversation after the incident – where the appellant called evidence of the cultural concept of Omoluwabi and the use of the word “sorry” to express empathy by the Yoruba people – where the issue in dispute at trial was whether by making the statements after the incident the appellant was making out of court admissions – where the jury was directed by the trial judge on the appellant’s out of court admissions – where the appellant was represented by experienced counsel at trial – where the Crown did not contend any of the statements made by the appellant amounted to evidence demonstrating consciousness of guilt – whether there was a real risk that the jury might conclude that the appellant’s conduct demonstrated consciousness of guilt on his part and the trial judge should have given the jury an Edwards-type direction or directed that consciousness of guilt reasoning was not open – whether a miscarriage of justice was occasioned by the trial judge’s failure to give such an Edwards-type direction

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied
GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40, cited
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
R v Canuto[2017] QCA 281, cited
R v Chang (2003) 7 VR 236; [2003] VSCA 149, cited

COUNSEL:

M J McCarthy for the appellant
D Kovac for the respondent

SOLICITORS:

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Details
AGLC
R v Ogunseye [2024] QCA 152
Case
[2024] QCA 152
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Dr Ogunseye, appealed against his conviction for the single count of rape of the complainant, a woman in her early twenties. The case was heard and determined in the Court of Appeal in Queensland. The central issue before the court was whether the trial judge's failure to provide an Edwards-type direction to the jury regarding the appellant's post-incident statements and requests amounted to a miscarriage of justice. Specifically, the court had to consider if the trial judge should have directed the jury that reasoning based on consciousness of guilt was not open to them or should have warned the jury not to misuse the evidence in accordance with the principles established in Edwards v The Queen.

The court considered the nature of the appellant's statements and actions following the incident, including his expression of regret and request for forgiveness, and whether these could be viewed as admissions by conduct. The appellant argued that the trial judge's omission to give an Edwards-type direction or a similar warning meant that there was a real risk the jury might conclude that his conduct demonstrated consciousness of guilt, thereby affecting the verdict. The court examined the evidence, the trial judge's directions, and the potential impact on the jury's deliberations.

The Court of Appeal found that the trial judge's failure to give an Edwards-type direction did not cause a miscarriage of justice. The court concluded that it could not be said that the omission had any real chance of affecting the verdict. The court reasoned that the trial judge had sufficiently directed the jury on the relevant issues, and there was no real risk that the jury might have misused the evidence in question. Consequently, the court determined that the appeal should be dismissed and that no miscarriage of justice had occurred.

ORDERS:
1. The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

The sole ground of appeal contained in the original notice of appeal was that the verdict of the jury should be set aside as it was unreasonable and could not be supported having regard to the evidence. At the hearing of the appeal the appellant formally abandoned that ground and was given leave to instead substitute a ground in these terms:“evidence capable of being viewed by the jury as admissions by conduct was led by the Crown but the jury was not given a warning not to misuse that evidence either in terms of Edwards v The Queen (1993) 178 CLR 193 or in a more abbreviated form, and as a result there was a miscarriage of justice.”Facts, issues and contentions at trial The appellant was a medical doctor working as a general practitioner in Hervey Bay. The complainant was a woman in her early 20’s, working as a receptionist for the appellant and also working as a beautician at a beauty salon operated by the appellant’s wife. The complainant had worked for the appellant and his wife for about four years at the time of the offence. On the evening of Thursday, 4 October 2018, the appellant attended the salon to perform injections on some of his Botox clients. After he finished, the complainant performed a facial treatment for him. That was a regular procedure that he undertook at the salon every fortnight or so. After the treatment, the appellant offered to perform a pap smear procedure upon the complainant. The complainant told him that she did not want to do the procedure at that time. Although earlier in the week she had made a tentative arrangement with the appellant to have it done at the salon one day, she had since booked an appointment to see the appellant at his surgery the following Monday. The appellant then referred to his medical bag and asked, “What did I bring all this for?”. The complainant then agreed to have the pap smear done. She went to the toilet and then returned to the treatment room, removed her pants and underwear, and using a towel, hopped onto the bed in the salon. The complainant had previously had a pap smear done by the appellant and knew what was involved. The appellant performed the procedure. There was no suggestion that he did anything improper while doing so. After the pap smear was done, the appellant told the complainant, “I think I’ve seen some rashes around your vagina. Can I have another look?”. The complainant had not noticed any such rash but agreed to the further examination. The complainant gave evidence that during this second examination she felt the appellant use his fingers to poke around her vagina, push or poke her clitoris about four or five times, and stroke down her vaginal walls inside her vaginal lips. She said that she felt him insert what she thought was two fingers into her vagina. The Crown case at trial was that during the second examination the appellant digitally penetrated the complainant’s vagina under the pretence of checking a rash on her vagina. Whilst the complainant had agreed to the second examination, the Crown case was that she had not freely and voluntarily consented to the act of penetration as her consent had been obtained by the appellant’s fraudulent or false representation that he needed to examine a rash.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view it cannot be said that there was a real chance that the trial judge’s failure to give an Edwards-type direction in respect of either the evidence of the statements made by the appellant, or his request that the complainant delete the recording she made on 9 October, affected the verdict.Conclusion and Order In my view, it cannot be said that the failure to give a direction of the kind now complained of caused a miscarriage of justice. I would order that:1. The appeal be dismissed.

Ratio Decidendi

Legal Principle Established

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