Geelong chef Michael Kawana has rape convictions set aside, new trial ordered

A former Geelong chef found guilty of rape has had his convictions thrown out and a new trial ordered, after the Court of Appeal found there was a “substantial” miscarriage of justice.

Michael Kawana will face a new trial after having his rape convictions set aside on appeal

A former waterfront chef who was found guilty of rape will get a second trial after a Court of Appeal judgement found there had been a “substantial” miscarriage of justice.

Michael Kawana, 53, was found guilty of seven charges – two counts of rape, four counts of sexual assault and one count of sexual assault by compelling sexual touching at trial in Geelong in April last year.

The alleged offences occurred between November 2018 and February 2020 and were allegedly committed against a single complainant.

The alleged rapes involved Mr Kawana allegedly penetrating the woman with his fingers and on each occasion, the touching and penetration was alleged to have occurred without the woman’s consent and against her active resistance.

The jury that found Mr Kawana guilty had just ten members – two were discharged during deliberation.

Mr Kawana appealed the convictions at a hearing in Geelong last month, and on Thursday Court of Appeal Justices Richard Niall, Kristen Walker and Cameron Macaulay handed down their unanimous judgement.

The justices ordered Mr Kawana’s convictions be set aside and a new trial held, finding a “substantial miscarriage of justice” had occurred.

The appeal was based on two grounds, arguing that the trial judge’s failure to consider whether there was a positive or good reason to continue the trial with the 10 jurors and, alternatively, that the jury should have been discharged as one of the jurors had engaged in bullying.

At trial, Kawana did not deny the sexual acts, but denied they were non-consensual.

Four hours into deliberation, the jury sent a note to the judge stating they were at an impasse and asking for direction.

The judge told the jury to persevere, and several days later the judge received another note, detailing how a juror was attempting to “intimidate, bribe and coerce (the jury) into a decision”.

“It was like he was holding us to ransom,” the note read, according to the Court of Appeal judgement.

That juror was discharged, and the remaining 11 jurors were brought into the courtroom and asked if they could still uphold their oath and obligations.

One juror decided she could not, and she was also discharged but the rest continued to deliberate.

Mr Kawana’s counsel argued at the time that the jury had been “tainted” by the conduct of the bullying juror.

In their judgement, Justices Niall, Walker and Macaulay said the judge had made an error in merely considering whether there was a high degree of need to continue the trial, and not also if there was a good reason to continue.

“We do not accept that the judge considered whether, still less found that, there was a positive or good reason to continue the trial with only 10 jurors,” they wrote.

The justices found they could not be satisfied this error wouldn’t have affected the verdict, as “this is not a case in which a finding of guilt was inevitable”.

Originally published as Geelong chef Michael Kawana has rape convictions set aside, new trial ordered