Gregory v The Queen [1983] HCA 24

Gregory v The Queen [1983] HCA 24

The evidence that Belan and Menzies would have given, and that Gordon was said to have been able to give, concerning consensual intercourse with the complainant during the same afternoon in the same house as part of the same connected sequence was relevant to the issue of consent and was not excluded by any special rule of law. The question put to Belan was wrongly disallowed, similar evidence from Menzies and Gordon would have been admissible, and the Court could not be satisfied that the rejected and unpressed evidence would not have led the jury to a different conclusion on consent. A substantial miscarriage of justice was therefore not excluded.

Jurisdiction
Australia
Procedural Posture
Criminal Appeal by Special Leave Against Convictions for Rape / High Court Application for Special Leave to Appeal and Appeal From the New South Wales Court of Criminal Appeal
Outcome
Applications for special leave to appeal granted; appeals allowed; convictions set aside; new trials ordered.
Legal Topics
['rape' 'consent' 'admissibility of Evidence' "complainant's Sexual Experience" 'cross Examination and Credit' 'substantial Miscarriage of Justice' 'new Trial']
['criminal Law' 'evidence' 'appellate Procedure'] ['rape' 'consent' 'admissibility of Evidence' "complainant's Sexual Experience" 'cross Examination and Credit' 'substantial Miscarriage of Justice' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal by Special Leave Against Convictions for Rape / High Court Application for Special Leave to Appeal and Appeal From the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether evidence that the complainant had consensual sexual intercourse with men other than the accused during the same connected occasion was admissible on the issue of consent.' "Whether the trial judge's rejection of evidence from Frank Belan, and the consequent failure to press similar evidence from Frank Menzies and Daniel Gordon, caused a substantial miscarriage of justice."]

Ratio Decidendi

The evidence that Belan and Menzies would have given, and that Gordon was said to have been able to give, concerning consensual intercourse with the complainant during the same afternoon in the same house as part of the same connected sequence was relevant to the issue of consent and was not excluded by any special rule of law. The question put to Belan was wrongly disallowed, similar evidence from Menzies and Gordon would have been admissible, and the Court could not be satisfied that the rejected and unpressed evidence would not have led the jury to a different conclusion on consent. A substantial miscarriage of justice was therefore not excluded.

Court Disposition

Applications for special leave to appeal granted; appeals allowed; convictions set aside; new trials ordered.

Orders

  • ['Gregory v. The Queen: Application for special leave to appeal granted.' 'Gregory v. The Queen: Appeal allowed.' 'Gregory v. The Queen: Judgment of the Court of Criminal Appeal set aside and in lieu thereof the appeal to that Court allowed, the conviction set aside and a new trial ordered.' 'Sharwood v. The Queen:...