R v Laman [1998] QCA 28

Court of Appeal (Qld)|1998-02-05|Before: Fitzgerald P, Davies JA, Moynihan J

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."

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.

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