R v Laman - [1998] QCA 28

COURT OF APPEAL

[1998] QCA 028

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
050298 D.1 T2/MW23 M/T COA5/98

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

2 JUDGMENT

050298 D.1 T2/MW23 M/T COA5/98

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Laman

Details

AGLC: R v Laman [1998] QCA 28
Case: [1998] QCA 28
Decision Date: 5/02/1998

CaseChat Overview and Summary

The case of R v Laman was before the Court of Appeal, presided over by Fitzgerald P, Davies JA, and Moynihan J. The applicant, Clifford Edward Laman, sought an extension of time to appeal against his conviction on several charges including rape, aggravated indecent assault, indecent assault, and assault. Laman was convicted in the District Court at Brisbane and sentenced to imprisonment. A previous appeal against the conviction and application for leave to appeal against sentence was dismissed by this Court on 12 August 1997. The current application is based on the proposition that fresh evidence has come to light which was not available at the time of the trial. This evidence concerns statements allegedly made by the complainant to a defence witness, Anita Kuschmirz, after the alleged offences but before the trial.

The central legal issues before the Court were whether the alleged fresh evidence was indeed new and whether it raised a significant possibility that the jury would have acquitted Laman if it had been available at the time of trial. The Court examined the credibility and strength of the evidence presented by Kuschmirz, which suggested that the complainant's statements might have affected her credibility. The Court also considered whether the evidence was readily available at the time of trial and whether the applicant's legal counsel had an opportunity to present it. The Court noted that Kuschmirz had ample opportunity to disclose the alleged statements to the applicant's counsel but failed to do so. The complainant also denied having such conversations with Kuschmirz.

The Court found that the alleged fresh evidence was not new, as it was readily available to the applicant's counsel but was not presented. The credibility of Kuschmirz's assertions was diminished by inconsistencies in her statements and the complainant's denial of the alleged conversations. The Court concluded that there was no basis for concern of a miscarriage of justice. Although the application for an extension of time should be granted due to the Prosecution's previous undertaking, the appeal itself should be dismissed. All judges agreed on the dismissal of the appeal.

Orders