R v Laman

[1997] QCA 307

[1997] QCA 307

COURT OF APPEAL
McPHERSON JA
SHEPHERDSON J

WHITE J

CA No 142 of 1997
THE QUEEN
v.

CLIFFORD EDWARD LAMAN Appellant

BRISBANE
..DATE 12/08/97
120897 D.1 T3-4/JAP/22 M/T COA 179/97
McPHERSON JA: This is an appeal against conviction that was the
result of a trial in the District Court earlier in the year,
arising out of an allegation of rape and associated offences
committed by the appellant, as it is alleged, on the complainant
some considerable time before, that is, in November 1995.

The appeal, which depends essentially on arguing that the jury's verdict was unsafe and unsatisfactory, came before this Court first on 24 June 1997. It was set down for hearing on that occasion. However, on the day proceeding that date instructions had been received by a firm of solicitors to act for the appellant in the matter.

They asked for an adjournment in order to brief counsel and so on, and that adjournment was granted until a date to be fixed. The date fixed was, in fact, today. That is to say 8 August, and no doubt it has been known for some time prior to today that this was the hearing date for the appeal. On 24 July 1997 a letter was written or, at any rate, prepared by being written out, by a lady in Tasmania. Her name is Anita Kuschmirz and she was a witness for the defence at the trial from which the appeal comes.

Her letter says, in effect, that after the incident alleged to have constituted the rape, the complainant had come round to see her and had said things about what had happened. Assuming that they are accurately reported in the letter, it may be that they would have gone to the credit of the complainant in this case. The letter, although dated 24 July 1997, did not find its way into the hands of the solicitors now acting for the appellant 120897 D.1 T3-4/JAP/22 M/T COA 179/97

until 5 August 1997, and it was placed before the Court only
this morning exhibited to an affidavit of that solicitor.

The result is, of course, that the appellant now feels bound to ask for a further adjournment in order to enable this material to be investigated both by the appellant and, from the Crown's point of view, by the Crown, which has indicated that it would require the witness Anita Kuschmirz to appear for cross- examination. It seems to me that we should not delay the further hearing of the appeal in order to enable this to happen.

The appeal is a discrete element; it is based on the proposition that the evidence was not sufficient to satisfy a reasonable jury; and it would be quite possible to dispose of that question without considering the question of whether this evidence now being put before us would have been available or ought to have been found before the trial, and whether, if it is accepted, it might have had an influence on the jury.

There is, of course, a concern that, if the present appeal were to be dismissed after a hearing on the basis on which it is at present formally before us, the appellant would then be put to the difficulty of applying to extend the time within which to appeal against the verdict and conviction on the ground of discovery of fresh evidence. However, Mr Meredith, on behalf of the Crown, has undertaken not to make any objection to the lateness of an appeal if it is instituted on the basis of fresh evidence in the way I have mentioned.

In addition, Mr Nolan has frankly conceded that he cannot see any prejudice to his client if that course were taken. In all 120897 D.1 T3-4/JAP/22 M/T COA 179/97

the circumstances I am persuaded that it would be preferable for us now at last to hear this appeal on the basis originally formulated, rather than that we should adjourn it for what would indeed be a third occasion for hearing.

SHEPHERDSON J: I agree.

WHITE J: I agree.

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