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[1983] HCA 24
High Court of Australia
1981-03-08
Dawson JJ
Original judgment source is linked above.
For the reasons given the question put to Belan was wrongly disallowed. Had the evidence of Menzies and Gordon of what occurred in the room been tendered, it, too, would have been admissible.
It then becomes necessary for us to consider whether a substantial miscarriage of justice occurred by reason of rejection of the evidence. Unless the Court is satisfied that there is no reasonable ground for believing that the jury might have come to a different conclusion if the evidence had been admitted, there will have been a substantial miscarriage of justice. The Court of Criminal Appeal did not find it necessary to consider that question, but Samuels J.A. nevertheless examined the matter briefly. His Honour referred to evidence given by a number of witnesses other than those to whose evidence we have already directed attention, and concluded: "There can be no doubt whatever that the nature of the case which the accused wished to put in opposition to the case which the Crown had the onus of establishing was abundantly presented to the jury." As this passage shows, a difficulty in the way of the applicants is that the jury did have some evidence before them which was similar in effect to that which the applicants were prevented, or thought that they would be prevented, from tendering. The evidence of Belan was that a number of men had gone in succession into the bedroom, that thereafter the complainant emerged naked and walked to the shower, and that after she had returned to the bedroom he went into it, saw the complainant on the bed naked and that something then happened between them. Menzies gave similar evidence, but in cross-examination by the Crown Prosecutor he went further. He was further questioned about whether he had discussed his evidence with others and the cross-examination proceeded as follows:
Q. No one had ever discussed the matter with you? A. My friends just said it was funny what was happening.
Q. What was funny? A. Three had been charged with it.
Q. Who were your friends who said it was funny? A. Me brother.
Q. Which brother? A. Jim, me other friend Frank Belan and that's it.
Q. They said it was funny. When did they say this to you? A. After Cox, Gregory and Sharwood had been charged.
Q. Did you discuss the events of the day with them then? A. Na.
Q. Except that some of them said it was funny. A. Yes.
Q. The humour being of what nature? (objected to: allowed) A. They were being charged with rape. I hadn't, and a friend had been, and, yes, we had intercourse with her on the same date.
Although from this evidence the jury may have been able to infer that the intercourse which Menzies had with the complainant was consensual, that fact was not explicitly stated in the evidence, and no detail which, if believed, might have put it beyond doubt that the intercourse was consensual was put before the jury. There was no direct evidence before them that Belan had had intercourse with the complainant, and the jury were left to speculate as to why Belan's evidence was rejected. With reference to the passage from the judgment of Samuels J.A. which I have cited, the question now before us is not so much whether the nature of the case which the applicants wished to put was presented to the jury, but whether the details of the evidence which may have supported that case were put before them. The question whether there was a substantial miscarriage of justice is one which has occasioned us some difficulty, but in the end we cannot be satisfied that the evidence which was wrongly rejected, and the further evidence which, in conformity with the judge's ruling, was not pressed, would not have led the jury to a different conclusion on the issue of consent. We therefore do not conclude that no substantial miscarriage of justice occurred.
We therefore grant the applications for special leave to appeal, allow each appeal, set aside the convictions and order a new trial in each case.
Gregory
The Queen
High Court of Australia Gibbs C.J. Wilson, Brennan, Deane and Dawson JJ. Gregory v The Queen [1983] HCA 24