Kuczynski v The Queen

Richard John Kuczynski sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal. The dispute concerned fresh evidence that emerged after Kuczynski's conviction on four counts of sexual penetration without consent and two counts of assault occasioning bodily harm. The alleged offences were closely connected, with the sexual penetration occurring at the flat of Mr Veenstra, who also sustained bodily harm while attempting to intervene.

The primary legal issue before the High Court was whether the fresh evidence, specifically the affidavit of Mr McMaster, constituted grounds for granting leave to appeal. McMaster's affidavit contained statements allegedly made by the complainant, Alison Kee, approximately one week after the incident. In these statements, Ms Kee reportedly indicated that she had not been raped and that she had told the police she had been raped because she was under 18 and scared.

The Court considered the significance of this fresh evidence in light of the principles governing appeals based on new material. The applicant argued that Ms Kee's statements, if true, would cast serious doubt on the complainant's evidence and potentially lead to an acquittal. The Court's determination would hinge on whether this evidence was likely to have affected the outcome of the trial and whether it met the criteria for admission as fresh evidence on appeal.