Gregory v The Queen

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: