R v Kanaveilomani

[2012] QCA 257

[2012] QCA 257

COURT OF APPEAL

MARGARET McMURDO P
HOLMES JA
HENRY J

CA No 70 of 2012
DC No 96 of 2012

THE QUEEN

v

KANAVEILOMANI, Juta Kanaenabogi  Appellant

BRISBANE

DATE 24/09/2012

JUDGMENT

HOLMES JA:  The appellant appeals his conviction of stealing a driver's licence and house key from the complainant, to whom I will refer as Ms L.  The appellant went to trial in respect of six counts in all, one of which was the stealing and the others four counts of rape and one of sexual assault committed against Ms L.  Her evidence was that she met the appellant in a bar on a night when she had been out drinking with friends.  They walked together towards the hotel where Ms L was staying.  Passing through the garden area of a local library, they had a playful encounter in which the appellant tackled Ms L and the two were briefly on the ground in a garden bed.  When she got up Ms L was unable to find her handbag, a clutch purse, in which were her house key and driver's licence.  Later that night they walked through another park where, on Ms L's account, the appellant sexually assaulted and raped her.  The appellant gave evidence of a consensual sexual encounter and the jury evidently was not satisfied beyond a reasonable doubt of his guilt, because they acquitted on the counts of rape and sexual assault.

Ms L made a complaint of rape to the police in consequence of which the following morning she went with an officer, Senior Constable Hogan, to the garden where her initial physical encounter with the appellant had taken place.  Police found her clutch purse in the garden bed underneath some plants which had been flattened.  On checking the purse Mr L found that her licence and house key were missing.  Subsequently, the police went to the appellant's unit and told him the nature of the allegations against him.  He informed Senior Constable Hogan that he had Ms L's licence in his wallet and showed them her key which was on a shelf in his bedroom.

Ms L agreed in cross-examination that when she was walking towards her hotel with the appellant she had some discussion with him about his first name, and he showed her his driver's licence, which she examined.  She agreed also that when the tackling incident occurred in the park, the appellant was actually holding her bag.  Although she knew where it must have fallen, she did not consider going back to look for it later on, for example, when she was turned away from the hotel.

The appellant's account was that he met Ms L at the bar where she indicated fairly promptly that she wanted to have sex with him and would take him to her hotel.  On the way there she was having some difficulty pronouncing his first name so he showed her his driver's licence which she looked at and returned to him.  He put it back in his pocket.  On his account, they had oral sex in the library garden.  The following morning when he awoke he realised that he had her driver's licence and key in his pocket, but he had picked them up in the garden thinking they were his.  His key was similar.  In cross-examination the appellant agreed Ms L had told him she had lost her purse and they had looked for it.  He had picked up the licence where the plants were pushed down, and the key was on the ground; he had not mentioned them to Ms L.  It was suggested to him that he had gone back to the park, found the purse and taken the key and licence; he rejected all those propositions.

The appellant argues that the conviction for stealing is unreasonable in light of his evidence.  The respondent Crown says that the verdict of guilt was not inconsistent with the acquittals on the sexual offences.  That submission, in my view, must be accepted, because whether the jury was prepared to make findings to the necessary standard on Ms L's evidence had no bearing on the circumstantial case of stealing against the appellant.  So far as that case is concerned, the respondent says that the appellant's evidence that he picked the items up while Ms L was looking for her bag and did not inform her that he had found them, together with his evidence about where he found the items, were such as to render his account implausible.

That submission would be stronger had Ms L mentioned her keys or licence to the appellant when looking for her bag; then one might expect the appellant, had he innocently picked up items of that kind, would mention them.  But Ms L's evidence was that she said only that she could not find the bag, without telling the appellant what it contained.  As to the respective positions of the bag and licence, the appellant's evidence, as demonstrated by reference to a photograph which was part of exhibit 7, was that he picked up the licence in the vicinity of the crushed plants, which was where the bag was eventually found.

The other difficulty for the Crown argument is that Senior Constable Hogan was not asked about the condition in which the purse was found: whether it was open or shut.  In the circumstances, it seems to me that there was open a reasonable inference consistent with the appellant's explanation: that the bag was open before or when it hit the ground, spilling out the key and licence, and that the appellant did, as he said, pick them up when he and Ms L got up from the ground, on the assumption that they were his.

In those circumstances, I do not think it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.  I am left with the feeling that “there is a significant possibility that an innocent person has been convicted”:  M v The Queen (1994) 181 CLR 487 at 494. I would allow the appeal, quash the conviction and enter a verdict of acquittal.

THE PRESIDENT:  I agree.

HENRY J:  I also agree.

THE PRESIDENT:  The order is: the appeal is allowed, the conviction quashed and a verdict of acquittal entered.