The Queen v Laman[1998] QCA 28

COURT OF APPEAL

FITZGERALD P

DAVIES JA

MOYNIHAN J

CA No 142 of 1997

THE QUEEN

v.

CLIFFORD EDWARD LAMAN Applicant/Appellant

BRISBANE

DATE 05/02/98

JUDGMENT

THE PRESIDENT:  This application for an extension of time within which to appeal against conviction is based on the proposition that there is fresh evidence available which only came to the notice of the applicant after his conviction.  He was convicted in the District Court at Brisbane on 4 April 1997 on one count of rape, three counts of aggravated indecent assault, one count of indecent assault and one count of assault.  He was sentenced to imprisonment for seven years to be served cumulatively upon another sentence which he was then serving.

A previous appeal against conviction and application for leave to appeal against sentence was dismissed by this Court on 12 August 1997. On that occasion the Court noted an undertaking on behalf of the Prosecution not to object to the lateness of an appeal instituted on the basis of fresh evidence which was then foreshadowed. 

Shortly stated the proposition of the applicant is that after the trial one of the defence witnesses at the trial Anita Kuschmirz asserted for the first time that between the offences of which the applicant has been convicted and his convictions the complainant spoke to Ms Kuschmirz about what had happened in terms which might possibly have affected the credibility of the complainant. 

Given the history of the matter it is appropriate for the Court to consider whether there is evidence now available for the applicant which was not available at the trial which raises a significant possibility that the jury acting reasonably would have acquitted him if the evidence had been given at his trial. The credibility and strength of the evidence alleged to be fresh evidence falls for consideration.  Ms Kuschmirz has sworn an affidavit which in substance asserts that she did not have an opportunity to provide Ms Jeannette Ann Scott, a barrister in the employ of the Legal Aid Office Queensland which represented the applicant, with details of statements made to Ms Kuschmirz by the complainant after the alleged offences and before the trial of the applicant.  Statements allegedly made by the complainant to Ms Kuschmirz are said to raise the possibility of rough sex rather than rape and concern by the complainant for her relationship with the applicant.  It is a reasonable assumption that counsel who represented the applicant at his trial would have cross-examined the complainant by reference to the allegations of Ms Kuschmirz and would have led evidence from Ms Kuschmirz of the statements which she says the complainant made to her had the evidence described as "fresh evidence" been available.

However, it is conceded for the applicant that there is a threshold question concerning what Ms Kuschmirz now asserts is "fresh".  It is also conceded that a new trial will not usually be granted on the basis of evidence which was readily available at the time of trial. As stated this part of the case of the applicant is based upon the premise that Ms Kuschmirz did not have an opportunity to tell Ms Scott of the statements which Ms Kuschmirz now attributes to the complainant.  In my opinion that is plainly incorrect.

The applicant was not convicted at his first trial but at a second trial.  Ms Kuschmirz gave evidence at both trials.  She says that prior to the first trial she only provided a statement over the telephone and only signed that statement a couple of minutes before giving evidence at the first trial.  It is convenient to read paragraph 14 of the affidavit of Ms Kuschmirz.  That paragraph states:

"I told Jeannette Scott from the Legal Aid Office Queensland that I had had a conversation with the complainant after the appellant's arrest but not the specifics of the conversation as Jeannette said that all they were interested in was the number of telephone calls made by the complainant to the appellant and that what I had to say was hearsay.  Jeannette told me that they were really focussing on the letter from the complainant to the appellant and I did not press the matter as I thought I had an opportunity to speak to the appellant's barrister before I gave evidence."

These unconvincing assertions are inconsistent with the affidavit of Ms Scott.  According to Ms Scott the content of conversations between Ms Kuschmirz and the complainant was one of the matters of central importance in the preparation of the defence of the applicant and "When I spoke to Kuschmirz to take her statement I took particular care to canvass the nature of discussions that she had had with the complainant."  Ms Scott has also sworn that on the date upon which the first trial of the applicant commenced Ms Kuschmirz spoke with both Ms Scott and Mr Milton Griffin, counsel for the applicant at his first trial, and that prior to Ms Kuschmirz giving evidence she was asked to read the copy of her statement and given the opportunity to make any amendments, additions or deletions prior to signing the statement.  Ms Kuschmirz made no alterations, additions or deletions.

The credibility of the assertions by Ms Kuschmirz concerning her alleged conversations with the complainant between the offences and the conviction of the applicant is substantially diminished by what occurred in relation to the second trial.  Paragraph 17 of the affidavit of Ms Kuschmirz is as follows:

"After the first trial I told Shelley Laman, the appellant's wife, that I had more to say but I did not know that the trial would be so quick."

The evidence of Ms Kuschmirz at the second trial contains brief reference to the subject which is now said to be fresh evidence without any attempt by the applicant or his legal advisers to obtain elaboration.  Paragraph 22 of the affidavit of Ms Kuschmirz is as follows:

"I again gave evidence at the appellant's second trial and I was told by his representatives that the same process would be followed as to the first and I did not argue.  It was only after the second trial that I told Shelley Laman about the article" - a matter that need not be further referred to - "and the conversation with the complainant about her being raped."

Once again the affidavit of Ms Scott contradicts what has been asserted by Ms Kuschmirz.  Paragraph 5 of the affidavit of Ms Scott says:

"During the preparation and conduct of the appellant's two trials I had cause to speak with Anita Kuschmirz about the matter on a number of occasions."

Ms Scott goes on to detail those occasions including a number of conversations in the period between the first and second trials.  Paragraph 20 of the affidavit of Ms Scott is in the following terms:

"Prior to giving evidence the next day at the second trial Kuschmirz had a conference with myself and David Kent, who is defence counsel for the second trial. The conference discussed the contents of the statement made by Kuschmirz as well as the evidence given by her at the first trial.  Kuschmirz confirmed that she had re-read her statement and the transcript of her evidence and was given the opportunity to comment on additions or corrections to her evidence.  None were made."

Ms Scott has also sworn that she first heard of the suggestion that the complainant did not know she had been raped in a conversation with the present solicitor for the applicant after the applicant was convicted at his second trial. 

There is also an affidavit before the Court by the complainant who denies that she had the conversations which Ms Kuschmirz alleges and says that she "did not know her well enough to even contemplate talking to her about such a sensitive matter".  Paragraph 3 of the affidavit of the complainant is as follows:

"I have always maintained that I was raped on the night of the offence.  I have never told anyone that I only had rough sex that night. The first time that I had heard about the term `rough sex' in relation to that night was when the barrister at the first trial suggested it to me in cross-examination. I emphatically denied this ludicrous suggestion then and I deny it now."

In my opinion there is no basis for any concern that there might have been a miscarriage of justice.  While the application for an extension of time ought to be granted in view of the undertaking given by the Prosecution when the matter was previously before this Court, the appeal should be dismissed.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

THE PRESIDENT:  The appeal is dismissed.