Former chef Michael Kawana appeals rape, sexual assault convictions

An award-winning chef who was last year found guilty of rape and sexual assault wants his conviction overturned, a court has heard. Here is why.

Michael Kawana was found guilty of digitally raping a woman, and also groping a woman on several occasions between November 2018 and July 2020.

A former Geelong waterfront chef has appealed his convictions of rape and sexual assault, arguing the jury who found him guilty should have been discharged.

Michael Kawana, 53, appeared in the Victorian Court of Appeals in Geelong via videolink on Thursday.

The appeal was heard by Justices Richard Niall, Kristen Walker and Cameron Macaulay.

The Newcomb man was found guilty of rape and five counts of sexual assault on April 5, last year.

In June 2023 he was sentenced to a maximum of seven years and seven months’ behind bars, with a non-parole period of five years.

The jury that ultimately found Kawana guilty had 10 members, after two jurors were discharged.

One of the jurors was discharged as he was “bullying” and “standing over” other members, the court heard.

Following the juror’s removal, another juror was also discharged, leaving the jury two down four days into deliberating their verdict.

The jury that found him guilty was the second jury to be empanelled in the case, but the first trial was abandoned.

Kawana’s lawyer, barrister Paul Smallwood, argued Judge Frances Hogan applied the “wrong (legal) test” and should have discharged the entire jury, rather than continue with “two less voices in the jury room”.

The fact this did not happen constituted a “substantial miscarriage of justice”, Mr Smallwood argued, which removed Kawana’s right to a jury of 12.

“It’s a significant step for a juror to be discharged from a criminal trial, it’s a significant step for two jurors to be discharged,” Mr Smallwood said.

The court heard Kawana’s defence made several unsuccessful applications to have the entire jury discharged at the time.

Mr Smallwood argued Judge Hogan should have applied a different section of the Juries Act, and if she had done so, a discharge of the entire jury was “almost inevitable”.

Barrister Raymond Gibson, representing the Crown, argued that the two sections were not mutually exclusive.

“If one were to draw a Venn diagram, there is considerable overlap,” Mr Gibson said.

Mr Gibson argued Judge Hogan’s actions were “appropriate and she did it in an exemplary way”.

Further, Mr Gibson argued a conviction was inevitable, an argument Mr Smallwood rejected.

“There’s nothing to say that the judge’s decision to continue with the jury affected the verdict,” Mr Gibson said.

Kawana worked at Geelong waterfront restaurant Fisherman’s Pier and as volunteer at Feed Me Bellarine during his award-winning career.

Following his sentence, Kawana may be deported to New Zealand.

Justices Niall, Justice Walker and Justice Macaulay will hand down their decision at a later date. 

Originally published as Former chef Michael Kawana appeals rape, sexual assault convictions