Kuczynski v The Queen

[1991] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No PS 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 1 21/10/91

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 21 OCTOBER 1991, AT 4.18 PM

Copyright in the High Court of Australia

MR M.J. McCUSKER, OC:  May it please the Court, I appear

with my learned friend, MR M.T. RITTER, for the

applicant. (instructed by Dwyer Durack)

MR J.R. McKECHNIE, OC: If Your Honours please, with my

learned friend, MS E.A. WOODS, I represent the

respondent. (instructed by the Crown Solicitor for

Western Australia)

MASON CJ: Mr Mccusker, we have only got 10 minutes, but I suppose you will be able to present your argument

within that time frame.

MR McCUSKER:	I will try to be fairly fast.
MASON CJ:	I was only indicating that the Court will not be

able to sit beyond 4.30.

MR McCUSKER:  I understand that, Your Honour. Your Honours,

this appli~ation is for leave to appeal against a

decision giv€n by the Court of Criminal Appeal and

it concerned a question of fresh evidence. The

appeal in the Court of Criminal Appeal was heard on

15 March 1990 and judgment was delivered on

16 March with reasons being published on

12 April 1990. Those reasons appear at page 40 and

following in the application book.

The applicant was convicted of four counts of sexual penetration without consent of a

Miss Alison Kee and also convicted of two further

counts of assault occasioning bodily harm on

Mr Veenstra. The events of unlawful sexual

penetration or rape and the assault were closely

intertwined because the rape, as I will call it,

allegedly occurred at the flat of Mr Veenstra.

There was evidence given by Veenstra that he

witnessed the rape and received considerable bodily

harm in the process of attempting to prevent the

rape from continuing. That was the background to

it.

Your Honours, after the trial and after

conviction, evidence came to light - and I am here

dealing with one part only of the evidence, and

perhaps the most important part - evidence of a

Mr McMaster, whose evidence appears in an affidavit

contained in the application book at page 81

through to 85. Relevantly for the present purpose,

at page 82 he refers in paragraph 10 of the

affidavit to the events of the evening which

preceded the alleged rape. He says:

Another person who joined our group of people

was Alison Kee. Ms Kee was a young Asian

woman who I had known for about 3 months prior

to that evening.

Kuczynski 21/10/91

I had seen her quite a few times in pubs and

clubs and had spoken to her on a number of

occasions.

Later in his affidavit he deals with the fact that

he accompanied this group of people, including

Alison Kee and the applicant, Kuczynski, to

Veenstra's flat. He gives evidence as to what

occurred there, acts of familiarity between

Miss Kee and the applicant. Then at page 84 he

deals with an important piece of evidence about a

week after Saturday, 22 August - that is the night

of the alleged rape. He says at paragraph 32:

About 1 week after Saturday 22nd August 1987 I

saw Ms Kee at the Eagle One Night Club.	She
came running up to talk to me.

She asked me whether I had heard about what

had happened concerning the Appellant.	I said
yes because I knew about the charges -

they were the charges of rape.

Ms Kee told me that she had got herself into

trouble.	I asked her whether the Appellant
had raped her.	She said "not really".

I asked her what she meant when she said not

really as either he had raped her or he had

not.

Ms Kee then told me that she had not been

raped but when the Police came to the flat on

the night in question she was scared as she

was under 18 and because of this she decided

to tell the police that she had been raped.

She told me that she did not know what to do.

At paragraph 38 he says:

I said to her that from what she had told me

it was possible that someone could go to gaol

for something they did not do. She then said

to me that she would drop the charges the

following week.	We then discussed other
things.

On the appeal to the Court of Criminal Appeal,

reference was made to that as being fresh evidence,

which it indeed was, and there is no issue as to

that. The appeal was conducted in perhaps an

unusual way in that initially at least, counsel for

the Crown, the respondent to the appeal, was

asserting that neither this nor other evidence

sought to be adduced as fresh evidence for the

Kuczynski	21/10/91 purpose of the appeal would in any event have been
relevant and admissible at the trial.

The appeal before the Court of Criminal Appeal

was intended to be, and indeed was agreed to be,

limited to that point, but as matters progressed,

it appeared that the scope of the argument was
somewhat enlarged by counsel for the Crown and

arguments as to fresh evidence and as to whether

the evidence had or lacked the requisite quality in

order to base an order for a retrial were also

advanced by counsel for the Crown and replied to by
counsel for the appellant.

MASON CJ:  You say you are not complaining about that

enlargement?

MR McCUSKER:  No, Your Honour. I do not think anything

turns on it. I just explain how the matter did

occur. Dealing with McMaster's evidence,

His Honour Mr Justice Pidgeon said in his reasons

that he did not consider that that evidence was

evidence which was sufficient, either alone or

taken together with the other evidence that was

referred to, was such as to base an order for a
retrial. At page 65 at the conclusion of his

reasons, the whole of that short page, he says:

The other matter to which I shall refer is

McMaster's proposed evidence that the

complainant said to him that the acts did not

occur.

That is simply a shorthand reference to McMaster's

evidence that I have already taken Your Honours to.

The two statements to this effect were before

the jury as were the circumstances in which
the complainant claimed she made those
statements. That did not cause the jury to

reach a different verdict.

Pausing there, the two statements His Honour is

referring to there are statements which Miss Kee

admitted she had made to a solicitor, a Mr Prior,

those statements having been made about three weeks

after the alleged rape and in circumstances where

she said, in explanation of having made these

statements, that she was in effect persuaded to do

so by a promise of a bus ticket to Adelaide, that

promise being made by the applicant.

So she admitted having made the statements and

the statements were to the effect that she had lied

to the police and had falsely complained that she

had been raped. At the trial she said that that

written statement that she signed, made in front of

Kuczynski 4 21/10/91

the solicitor, Mr Prior, was untrue, that she had

indeed been raped and that she had made the

statement by reason of the inducement that I have

mentioned.

His Honour Mr Justice Pidgeon, in whose

judgment the other two justices concurred, said at

page 65 that the two statements - meaning those two
statements that were written out for her and that
she wrote out again apparently - were before the

jury and the circumstances in which the complainant

claimed she made the statements are the
circumstances I have just mentioned, Your Honours,

namely that she said she made the statements in

return for a promise of a bus ticket.

That did not cause the jury to reach a

different verdict -

that is, the making of those statements.

His Honour said:

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.	The same can be said in respect of
Cookson.

I will come back to that a little later if

necessary. It is with that observation, or those
reasons, that the applicant was - there are two

matters wrapped up in those reasons which we say

give rise to a special leave point, Your Honours.

The first is His Honour's statement:

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.

His Honour, in making that observation, was not

dealing with the question of the cogency or

credibility of the evidence of McMaster, because

that had not been tested at this point in the

appeal. It must therefore be approached, in our

respectful submission, on the basis that ~cMaster's

evidence is to be presumed to be cogent and
credible evidence, and certainly it is relevant and
admissible evidence.

TOOHEY J:  It is relevant and admissible to the issue of

consent presumably, there being no argument that

sexual intercourse had taken place.

MR McCUSKER:  That is so. The whole issue was consent.

Kuczynski 21/10/91

TOOHEY J: And that issue had been before the jury and

evidence had been led both against consent and for

consent.

MR McCUSKER:  Yes, but I should mention the applicant

himself gave no evidence, but there was evidence
nevertheless called - witnesses were called on his

behalf. She was cross-examined on the question of

whether she had consented. It was put to her that

she had, that it was consensual intercourse. In

putting the test in this way, "It would seem

unlikely that if the jury did accept" et cetera, in

our submission His Honour has erred and applied the

inappropriate test according to the weight of

authority in this Court.

There is, however, a difference of opinion

that can be discerned, at least between some

members of this Court, and perhaps there is also a

question of there being the issue left open by two

members of this Court. I refer to the decision in

Gallagher in which the then Chief Justice Gibbs and

Your Honour Justice Mason formulated the test in

terms of whether there was a significant

possibility that the fresh evidence, if it went

before the jury, would have caused the jury to be

left in doubt.

TOOHEY J:  Mr Mccusker, before you get to the question of

the appropriate test, is Justice Pidgeon

formulating a test there, because this was not a

case in which the fresh evidence went to an issue that had not been raised at the trial, but I take

him to be saying, rightly or wrongly, that the

matter of consent having been canvassed and two
statements bearing upon the falsity of the

complaint having been before the jury, it was

unlikely that this further evidence would take the

matter any further, which is a different - - -

MR McCUSKER:  I think that is right, Your Honour.

TOOHEY J:  I am not sure how relevant it is really to look

at those tests against that in that context.	It
may be;	I am just not sure.

MR MCCUSKER:  Your Honour, I said there were two matters on

this page that concern us in our special leave

points. The first perhaps is the one that

Your Honour has just mentioned. There was an issue

of consent before the jury. Going to that was the question of the signed statement. When His Honour refers to "those statements", it was really the one

statement, although it was in two parts. That statement was made about three weeks after the alleged rape and the complainant, Miss Kee, gave

evidence explaining why she had made that statement

Kuczynski 6 21/10/91

and said that that statement was untrue. There was

no evidence of course before the jury concerning

the statement she had made to McMaster

approximately one week after the alleged rapes.

MASON CJ:  Mr Mccusker, if that is a convenient time, we

will adjourn and we will resume at 9.45 tomorrow

morning.

MR MCCUSKER:  May it please the Court.

AT 4.31 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 22 OCTOBER 1991

Kuczynski 7 21/10/91