R v Kanaveilomani

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.