Kuczynski v The Queen

[1991] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P8 of 1990

B e t w e e e n -

RICHARD JOHN KUCZYNSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J MCHUGH J

Kuczynski 22/10/91

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 9.45 AM

(Continued from 21/10/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Mccusker.

MR McCUSKER:  Thank you, Your Honours. I referred Your

Honours yesterday to page 65 and said there were two problems in the reasons there given by

His Honour Justice Pidgeon. Your Honour

Justice Toohey raised with me the question of

whether, before we get to the correct test to apply as the test of quality in this area, is there not a threshold problem and, with respect, there clearly

is, but the threshold problem itself illustrates

the dangers in applying so-called likely tests

rather than the test of significant possibility.

In Gallagher's case, which is number 3 on our list

of authorities, at page 399, the then Chief Justice

Gibbs said, at approximately point 4 on that page:

On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it

concludes that the fresh evidence was likely

to have produced a different result, in the

sense that it would probably have done so.

And, to the same effect, dealing in a different way

with the question of a speculative test, His Honour

Justice Dawson, at page 420 of that report, the

fourth last line from the bottom of page 420, said: the ultimate question of guilt or innocence

must remain a question for a jury. The

function of a court of criminal appeal does
not extend beyond determining whether the

evidence is reasonably capable of sustaining a particular verdict. For this reason, I do not

think that it can now be accepted that a

miscarriage of justice can only be shown to

arise from the discovery of fresh evidence if

it can be established to the satisfaction of

an appeal court that the fresh evidence is

likely to produce a different verdict.

Put perhaps more in the vernacular, to some extent

there is an element of second-guessing a jury

decision when one looks at the question of whether the fresh evidence was likely to have affected the

verdict, and in this case that is really what

occurred. His Honour Justice Pidgeon, at page 65,

referred to the fact, as I mentioned yesterday to

Your Honours, that there was evidence given at the trial that the girl, some three weeks after the

alleged rape, had signed a statement admitting that

she had made a false complaint of rape to the

police and His Honour Justice Pidgeon, having

referred to that evidence, said:

Kuczynski 9 22/10/91

That did not cause the jury to reach a

different verdict. It would seem unlikely

that if the jury did accept that there was a

further statement to McMaster that this would

take the matter further.

In our submission, that approach highlights the danger of the likely test because it does usurp the

function of the jury. There is, in this Court's

decision in Mickelberg in the joint reasons of

Justices Toohey and Gaudron, the two different

tests were formulated and the question that was

left open as to whether there was difference

between those two tests, for the purpose of the

Mickelberg appeal it was said it did not matter

whether there was a difference. But in this case,

in our submission, the difference is highlighted

because the difference has led here to the

application of the likely test which, in turn, has

usurped a jury function, the appellate court

function being confined to determining whether

there is a significant possibility. And the

evidence of Miss Kee, given at trial, an

explanation of her having said at three weeks, and

signed a statement three weeks after the alleged rape, that she had made a false statement to the police appears at page 45 point 5 in the reasons,

where His Honour Justice Pidgeon said:

She said that he told her that if she dropped

the charges he would give her a ticket to

Adelaide. She said that she would agree to

this and later signed a statement that the

charges were false. She rewrote the statement

in the presence of Mr. Prior the solicitor for

the applicant -

and the statement is then set out in full, in which

she says that she made a false complaint of rape to

the police, and concludes -

This Statement has been written from my own

free will without any Bind of Threats or

promises -

and so on.

Now, the Court of Criminal Appeal, His Honour

Justice Pidgeon seems to have inferred from the guilty verdict that the jury would have been unlikely to have reached a different verdict if

evidence had been before it of an earlier admission

made by Miss Kee, just a week after the alleged

rape, and made by her to McMaster, a man whom she
had some acquaintance with over the previous three

months, that she had not been raped. And, with

respect, that does clearly illustrate the

Kuczynski 10 22/10/91

usurpation of the jury's function, where the Court

of Appeal endeavours to determine whether or not it

is likely that a different result would have been

reached by the jury. The inference that was drawn

by the Court of Appeal from the guilty verdict, was

also an inference which, in this case, could not

fairly be drawn. Had the jury had before it

evidence of the earlier statement to McMaster, made

by Miss Kee who was on friendly terms with

McMaster, an admission made in quite different

circumstances from the late admission made some

three weeks later, I would submit that there is at

least a significant possibility that the jury would

have entertained a reasonable doubt as to whether

Miss Kee's explanation of why she made the later

statement was true. In other words, evidence of
that earlier statement to McMaster could well have

caused the jury to take a different view of

Miss Kee's explanation as to why she made the later

signed statement.

MASON CJ: When was that said to have been made? A week

after the incident -

MR McCUSKER:	A week after, Your Honour, yes.
MASON CJ:	- - - at a nightclub?
MR McCUSKER:	At a nightclub, the Eagle One Nightclub, where McMaster, who had known her for some three months
before the alleged rape, and who had not met the
accused, Kuczynski, until the night of the alleged
rape and had had no contact with him thereafter, spoke to her about a number of things, including this allegation of rape which she admitted was not
true, and which she agreed she would withdraw.
And, in turn, it is submitted, it would follow that
there is at least a significant possibility that
the jury might have entertained a reasonable doubt,
having that evidence before it, as to whether she
had indeed been raped at all.  So that the evidence
of the McMaster admission is significant not only in itself as to what it might have caused the jury to consider in relation solely to her admission to
McMaster, but could well have caused the jury to be
left in doubt as to whether her explanation of the
making of the later statement to the solicitor was
one which was proven.
MASON CJ:	If you focus on your new evidence it may have

some attraction, but when you look at the evidence
at the trial it ceases to have that quality

because, when you bear in mind that the Crown case

at the trial was that Veenstra was assaulted and

severely injured by the applicant; that there was

police evidence from the officer who witnessed what

occurred, the last of the incidents between the

Kuczynski 11 22/10/91

applicant and the complainant; and the torn denim

skirt; then, against that sort of background, this

evidence does not seem to have particularly highly

persuasive quality.

MR McCUSKER: Well, Your Honours, to take you to that

evidence which is referred to in the reason of

His Honour, would take more time than is allotted for a special leave application, but dealing briefly with each of those items, the evidence of Veenstra was not that he witnessed a rape, he witnessed the accused on top of the girl; the

fighting that occurred between Veenstra and the

accused is equally explicable as having been due to

the fact that Veenstra wanted to intervene between

the accused and the girl. The evidence of the

police officer was not that he saw rape, but he

saw, when he arrived, the accused on top of the

girl in the bedroom in a position which was equally

consistent, I would submit, on his evidence, with

consensual intercourse, as with rape. The fact is

that he saw the accused on top of the girl and

therefore had her overpowered, I think it was put

that way, but that does not necessarily indicate

rape. As I say, it is consistent with consensual

intercourse.

And again, the tearing of the girl's denims do

not necessarily conclusively show that there was

any rape involved. There was an incident outside

in relation to a taxi, where there was some

suggestion that the girl had fallen over and had at

that time torn her denims. So these matters,

Your Honours, whilst undoubtedly there was some

evidence that was consistent with rape, those

matters would tend to, at least, be minimized if

the jury had before it the strong evidence that the

girl had volunteered to McMaster, whom she knew and

had no reason to make a voluntary statement of this

nature to, that she had not been raped. Now

McMaster was not a friend of the accused, did not

know the accused before that night, had no contact

with him thereafter. That, in my submission is

very significant in terms of the potency of such
evidence if it went before a jury.

We say no more at this stage than that there is a significant possibility that if the jury had

that evidence before it, it may have been left in a

reasonable doubt as to whether the girl was telling

the truth, and it does bear again on the

explanation that she gave as to why she signed the

statement in the terms that appear at page 45 that

she had made a false complaint to the police. Now,

the matter does not end there, but we say that

candidly is the highest point in this application.

There was also evidence, which is sought to be

Kuczynski 12 22/10/91

adduced as fresh evidence, of Mr Cookson. Cookson

was, I suppose, a friend, but he was the employer

of the accused, Kuczynski, and the evidence which

was sought to be adduced from him appears at the

appeal book at page 88, and this deals with the

events of 16 September 1987, which was the date on

which, later that day, the girl signed the

statement in front of Prior the solicitor, that she

had not been raped and made a false complaint of
rape. At page 88, having dealt with the

circumstances in which he found the accused and

Miss Kee some three weeks after the alleged assault
on her by Kuczynski, that is they were in
circumstances which clearly showed that they were

on close sexually familiar terms, he says, at

paragraph 14:

Due to the fact the Ms Kee had made a

complaint of sexual assault against the seeing. I was then abusive towards Ms Kee regarding the sexual assault complaint and
asked her why she made the complaint.

She told me that the Police pressured her

into pressing charges against the Appellant.

She said that it was all a mistake and the

Appellant had not sexually assaulted her.

I then told the Appellant that he should

take the day off work and take Ms Kee to

either the Police or a solicitor to make a

statement.	Ms Kee then said "no, not the
Police".

I then advised the Appellant to get in

touch with an independent solicitor and to

have Ms Kee make a statement saying that she

was not sexually assaulted and had made a

false allegation of sexual assault to the

Police.	I then left the premises to go to
work.

And that, we submit, is also evidence which, if

placed before a jury, was likely - we will go this

far - to have caused the jury to have entertained a

reasonable doubt. But there is certainly, we would

say, in that evidence coupled with the evidence of

McMaster, sufficient to cause there to be a significant possibility that the jury would be left in reasonable doubt.

Now, in dealing with the Cookson evidence, as

to what the girl said to him - apparently

voluntarily, there was no reason for her to make a

statement to him - the Court of Criminal Appeal

considered that that evidence could not be

Kuczynski 13 22/10/91

categorized as fresh evidence because it was

evidence which His Honour Mr Justice Pidgeon

thought, with reasonable diligence, could have been

obtained for the purpose of the trial. Now that,

in our submission, in all the circumstances, places

too heavy a burden on an accused person in the

applicant's position at that time. The applicant

saw Cookson when Cookson was a remand prisoner at

Canning Vale Prison in December 1987, and he was

then told by Cookson, with whom he had lost contact

up until then, that he, Cookson, thought he would

be released on bail. And that appears at page 99

of the application book, paragraphs 63 and 64:

I did not see Mr Cookson again until

about December 1987 when he became a remand

prisoner at Canning Vale Prison. I was a
prisoner at Canning Vale Prison at that time.

Whilst I was at Canning Vale Prison, I

was advised by Mr Cookson that he thought he
would be released on bail.

A few weeks later the applicant was moved to

Fremantle Prison, and had no further contact with

Cookson before his trial, which was in April 1988.

That appears from paragraph 66:

I next saw Mr Cookson when he came to

Fremantle Prison in July 1988.

So between December 1987 and July 1988 he did not

see Cookson. He had seen him in December 1987 at

prison as a remand prisoner, saying that he thought

he would be released on bail.

The applicant informed his solicitor at the

time that Cookson was a witness who could give

evidence at the trial and his affidavit - that is,

the applicant's affidavit - is that efforts were

made by Prior, his solicitor, to get in touch with

Cookson, but was unable to do so.

Now, contact with Cookson at this time, and

indeed with any prisoner in the prison system, was

greatly hindered so far as the Fremantle prison

system was concerned by the difficulty in

communication in the wake of the Fremantle Prison

riots which caused extremely severe limitations to

be placed on the communication with prisoners, and

that appears at page 99, paragraphs 68 and 69:

I am advised by Mr Prior and believe that

although efforts were made to get into contact

with Mr Cookson he was unable to get into

contact with Mr Cookson prior to my trial.

Kuczynski 14 22/10/91

The ability of myself and my solicitors

to get into contact with Mr Cookson and other

witnesses was greatly hindered by the

difficulty of communications after the

Fremantle Prison riot and the fact that I was

given very short notice of the date of my

trial.

And Kuczynski's affidavit at page 93, paragraph 7

says:

Although I was not involved in the riot,

after the riot it was very difficult to

communicate with people outside the prison

including your solicitor.

They are circumstances which, in our submission,

are relevant to the question of whether the

evidence of Cookson could be categorized as fresh
and, indeed, the test of whether the evidence

should be admitted has been said by this Court not

to be a test which is inflexible. It depends upon
the circumstances.

Now, Your Honours, the evidence of Mr McMaster and the evidence of Mr Cookson, independently of

each other and independently of the statement that

the girl made to Mr Prior that she had made a false

complaint of rape, was in each case to the effect

that she had admitted having made a false complaint

of rape and that she had not been raped. And, in
our submission, what the Court of Criminal Appeal

did, as it reads at page 65, was to err in two

ways.

First, it erred by applying the likely test,

when it is clear that the appropriate test is

significant possibility and the likely test usurps

the jury's function; and second, even applying the

likely test, with great respect, there is no logic

in the proposition that because the jury had

evidence before it that the girl had admitted on

one occasion that she had lied, and she gave an

explanation to the jury as to why she had made that

statement, therefore it follows that further

evidence that she had on other occasions,

unexplained, made admissions that she had lied to

the police about having been raped, is evidence

that was not likely to affect the jury verdict.

TOOHEY J: Mr Mccusker, when you put the argument in the way

that you do, are we to assume that no complaint is

made of the way in which the matter was dealt with

by the Court of Criminal Appeal having regard to

the limited arguments addressed to it?

Kuczynski 15 22/10/91

MR McCUSKER:	I have thought about that, Your Honours, and I do not think that we can make complaint of that,
although the basis, the framework of the appeal to the Court of Criminal Appeal was, at that point, to
have been only whether the evidence was admissible
and relevant if it had been sought to be led at the
trial, and although Mr Ritter, who appeared for the
appellant, confined his submissions to that
particular issue, when counsel for the Crown opened
up the broader issue of whether the evidence was, in any event, fresh evidence, Mr Ritter did reply
and dealt as well as he could with that issue. So
our complaint is focused on the way in which the Court of Criminal Appeal has dealt with the issues
which ultimately went before it. But it must be
approached, quite clearly, on the basis that - on
the hypothesis that the evidence of McMaster and the evidence of Cookson would be cogent and
credible evidence, because that is the step that
the Court of Criminal Appeal did not take.

TOOHEY J: Yes, I suppose in a sense that almost operates

against you, because you start with the assumption

that the court must have regarded the evidence as

cogent and credible?

MR McCUSKER:  Yes, or certainly that is the hypothesis upon which they had to approach the matter.

TOOHEY J: Yes.

MR McCUSKER:	But we say, given that that evidence is to be assumed to have been cogent and credible evidence,
it is then the proposition of the Court of Appeal
that cogent and credible evidence that the girl, on
one occasion a week after the alleged rape, and
another occasion three weeks after the alleged rape, said to two different people that she had not
been raped and had made a false complaint to the
police, that that evidence was unlikely to affect
the jury verdict - which was the wrong test - but
unlikely because there was evidence before the jury
that she had made a written confession that she had not been raped and the jury appeared to have
accepted her explanation as to why she had made
that statement. And it is not a case of: because
that kind of evidence has been put forward and the
girl has given an explanation, therefore that
explanation might well have been accepted in relation to the other admissions. And the reason I say that is, of course, that those admissions by the girl, those other two admissions to McMaster
and Cookson, were not before the jury. At the
moment this is unexplained evidence that the girl
confessed on two occasions that she had not been
raped, and had lied to the police.

Kuczynski 16 22/10/91

Your Honours, there are other matters in the

applicant's case but, as I say, our salient points are the confessions of the girl in relation to the

alleged rape to McMaster and to Cookson. There is further evidence which was sought to be adduced as

fresh evidence, and that was evidence of close

familiarity between the girl and the accused on the

night, and the fact that she did not seek to leave

when the others left, but was on familiar terms
with him in the flat and stayed with him, but there was some evidence of that nature already before the

court. It is a question of whether a further drop

of the same medicine might have caused the jury to

entertain a reasonable doubt.	May it please the
Court, they are our submissions.

MASON CJ: Thank you, Mr Mccusker. Yes, Mr McKechnie.

MR McKECHNIE:  If Your Honours please, the Court of Criminal

Appeal did not misapprehend the task before it. It

is clear from the judgment of Justice Pidgeon,

particularly at pages 59 and 69, that he approached

it, the others agreeing, on the basis that the

ultimate question was whether there had been a

miscarriage of justice in relation to the new or

fresh evidence. Approaching it on that basis and

weighing up the evidence at trial and the proposed

new and fresh evidence, Their Honours concluded

that there was not a miscarriage of justice.

With respect to my friend, his summary of the

evidence of Veenstra is not quite as extensive as

that which appears on page 49 of the judgment in

relation to what happened in the room, particularly

in the bottom half of the page. Commencing halfway

down:

He said he later saw the applicant make a pass

at the complainant and when asked to describe

this in more detail he said that he was

kissing and molesting her and that the

complainant was resisting and trying to push

him away. He said that she was struggling and

she did not want anything to do with him.

Thereafter came the fight and, over the page, at

page 50, Your Honours will see, about a third of

the way down in the first paragraph:

He said he just played dead and stayed down at

the time. He said that while he was down on

the floor he heard the applicant dragging the

complainant off her feet into the bedroom and

the bedroom door closed.	He heard scuffling
and the complainant saying "No".	He said that

he then got up, went to the caretaker's flat

and rang the police.

Kuczynski 17 22/10/91

It is somewhat more extensive than the summary of

my friend.

Their Honours had before them the transcript

of the trial, had before them the affidavits,and it

was essentially a matter for them to weigh up, as a

matter of fact, whether in the circumstances the
trial miscarried by the absence of that evidence.

They came to the view that it did not. In our respectful submission, that was a view which was

open on a consideration of the facts. Apart from

that, Your Honours have our submissions at pages 30

to 34 of the application book. In essence,they

simply expand those few words and there are no

other matters I would wish to put before

Your Honours.

MASON CJ: Yes. Thank you, Mr McKechnie. Yes, Mr Mccusker.

MR McCUSKER:  Your Honour, I asked my learned junior to get

me a note of the relevant pages in the transcript.

Of course, those pages are not before Your Honours.

MASON CJ:  No.

MR McCUSKER:  Could I say this. Just looking at pages 49

to 50. What His Honour Justice Pidgeon has

attempted to do there is to encapsulate that the

evidence of Veenstra was not that at any point he

saw a rape being committed. He gave evidence which

is consistent, perhaps, with a rape, but it is not evidence of the rape. He said, in essence, he was

witness to a kissing, and that was consistent with

the witnesses who gave evidence at the trial that
the accused and the girl were on very friendly
terms at the time that they departed from the flat,

asking her if she would like to leave, and she said

"No", and she was left there with Veenstra and the

accused, Kuczynski, who he saw kissing and,

so-called, molesting the girl. He said that the

girl was struggling and did not want anything to do

with him.	Now, bear in mind that Veenstra and
Kuczynski were involved in a fight,and the whole

question of whether the girl was struggling and

protesting is bound up with Veenstra's claim that

he was assaulted ~y the accused, Kuczynski. If the
jury was not satisfied that the girl was raped,

then their view of Mr Veenstra's evidence may also

have taken on a different complexion. So the

central issue in the trial was whether the girl was raped, as she claimed to the police, or whether she

was not raped, as she admitted to Mr Prior, and as

she, as it now turns out, admitted to two other

people on two different occasions.

The Court of Appeal's decision did not turn on

the weight or the effect of the evidence of

Kuczynski 18 22/10/91

Veenstra furthermore, it turned upon the view of
the Court of Appeal as expressed at page 65 that,
because there was a statement before the jury, made
before Mr Prior, admitting that she had not been

raped, therefore two further statements were

unlikely to have affected the jury's verdict.	May
it please Your Honours.

MASON CJ: Yes, thank you, Mr Mccusker. The Court will take

a short adjournment in order to consider the course

it will take in this matter.

AT 10.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.17 AM:

MASON CJ:  The Court is not persuaded that in all the

circumstances of this case the actual decision of

the Court of Criminal Appeal is attended with

sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

AT 10.18 AM THE MATTER WAS ADJOURNED SINE DIE

Kuczynski 19 22/10/91