R v Kanaveilomani - [1994] QCA 193

THE COURT OF APPEAL	[1994] QCA 193
SUPREME COURT OF QUEENSLAND

C.A. No. 130 of 1993

Brisbane

[R v. Kanaveilomani]

T H E Q U E E N

SISA KANAENABOGI KANAVEILOMANI

(Appellant)

The Chief Justice Mr Justice Davies Mr Justice Lee

Judgment delivered: 15/06/94

E	ach member of the Court delivering separate reasons agreeing as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED. Application for leave to appeal against sentence granted, appeal allowed, set aside the term of five years imprisonment imposed in the case of the attempted rape and substitute a term of three years. The sentence imposed for the indecent assualt to remain.

CATCHWORDS: CRIMINAL LAW - accused's failure to testify at trial - whether trial judge misdirected jury - circumstances in which judge can direct jury on failure to testify - whether direction permissible in non- circumstantial cases - permissible substance of direction - whether inferences can be drawn from failure - Weissensteiner v. The Queen (1993) 68 A.L.J.R. 23 discussed.

Counsel:Mr Nase for the Appellant

Mr Clark for the Crown

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutiions for the Crown

Hearing Date:15/07/93

JUDGMENT - THE CHIEF JUSTICE

Judgment delivered: 15/06/94

The court is concerned here with appeals against conviction and sentence. The appellant was charged that on 28 November 1992 at Mount Isa he attempted to commit rape upon the complainant and also that on the same day and place he indecently assaulted the same complainant. In the case of the second charge it was specified that he brought his mouth into contact with the complainant's genitals.

The appellant pleaded not guilty but after trial was found guilty on both counts and was

sentenced to respective terms of imprisonment of 5 years and 2 years to be served concurrently. At
his trial he did not give evidence and no evidence was called for the defence.

The Crown case was dependent upon the jury's substantial acceptance of the version of events given by the complainant even though the trial judge instructed the jury that there were certain matters capable of constituting corroboration. There were some injuries to the complainant but they were not extensive and in view of the version which she gave, they could have been regarded as unexpectedly slight. A further matter which the jury were instructed could amount to corroboration was a certain conversation which the appellant had with a person, Mr Leon on the evening of the following day which was Sunday, when the appellant said that he had got himself "into a bit of trouble" with the complainant. A third item of evidence which the judge instructed the jury could constitute corroboration was an apology by the appellant which another person, a Mr Nutter, said was proffered in his presence when he was sitting with the complainant. Nutter said the accused approached and said that he wished to apologise to the complainant and placed an earring on the table. The earring was identified as belonging to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kanaveilomani

Details

AGLC: R v Kanaveilomani [1994] QCA 193
Case: [1994] QCA 193
Decision Date: 15/06/1994

CaseChat Overview and Summary

In the case of R v Kanaveilomani, the Supreme Court of Queensland addressed an appeal against conviction and sentence. The appellant, Sisak Kanaenabogi Kanaveilomani, was convicted of attempted rape and indecent assault and sentenced to five and two years of imprisonment respectively, to be served concurrently. The appellant argued that the trial judge's direction to the jury that they could consider the defence's failure to contradict the complainant's testimony as a matter tending to support her credibility was erroneous, and that the verdict was unsafe. Additionally, the appellant sought leave to appeal against the sentence imposed.

The court found that the trial judge's direction, although problematic when considered in isolation, was not erroneous when viewed in the context of the summing up as a whole. The trial judge had given clear and correct directions on the burden of proof and the absence of adverse inference resulting from the accused's failure to give evidence. As such, the court dismissed the appeal against conviction.

Regarding the sentence, the court found that the five-year imprisonment term for the attempted rape was excessive. The court granted the application for leave to appeal against sentence and allowed the appeal, setting aside the term of five years imprisonment imposed in the case of the attempted rape and substituting a term of three years. The sentence of two years imposed for the indecent assault remained unchanged.

The court's decision highlights the importance of the trial judge's directions to the jury, particularly when considering an accused's failure to give evidence. While it is permissible in certain circumstances for the trial judge to comment on an accused's silence, such directions must be given with caution to avoid any risk of the jury drawing impermissible inferences from the accused's failure to testify.

Orders