Gregory v The Queen

[1983] HCA 24

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ.

GREGORY v. THE QUEEN

(1983) 151 CLR 566

9 August 1983

Criminal Law

Criminal Law—Rape—Evidence—Consensual acts of intercourse with persons other than accused—Acts and alleged rape forming part of connected set of circumstances—Admissibility.

Decision

August 9.
THE COURT delivered the following written judgment:-
The applicants Kevin John Gregory ("Gregory") and Glen Andrew Sharwood ("Sharwood") were tried jointly in the Supreme Court at Sydney with James Cox ("Cox") on charges of rape of an eighteen-year-old girl ("the complainant"). The applicants were found guilty by the jury. Cox was acquitted. The applicants appealed against their respective convictions and sentences to the New South Wales Court of Criminal Appeal which dismissed their appeal. They now seek special leave to appeal to this Court from their respective convictions. The sole suggested ground of appeal in each case is that the learned trial judge erred in rejecting evidence aimed at showing that, on the occasion on which the alleged offences had occurred, the complainant had consented to intercourse with persons other than the accused in circumstances where such other intercourse formed part of a connected set of circumstances with the alleged offences. To understand this suggested ground of appeal it is necessary to refer briefly to the evidence at the trial and the events out of which the trial arose. (at p568)

2. The complainant gave evidence that, on 8 March 1981, she was present with Gregory, Sharwood, Cox and a number of other young men in a small suburban dwelling in the outer Sydney suburb of St. Marys. According to the complainant, Cox "took" her into the main bedroom of the house ("He held onto (my hand) really tight and pulled me into the bedroom") where Cox had sexual intercourse with her against her will. The complainant's evidence was that Cox then left and Sharwood entered the bedroom; that Sharwood also had intercourse with her against her will; that Sharwood then left the bedroom and Gregory entered it; and that Gregory also had intercourse with her against her will. On the complainant's account of the relevant events, the above three instances were the only instances of intercourse or attempted intercourse with her on that day. (at p569)

3. None of the accused gave sworn evidence. Each made a statement. Cox and Sharwood each stated that he had intercourse with the complainant on the occasion in question. Gregory said that he had attempted to have intercourse with the complainant in the main bedroom but had not succeeded, by reason of his own inability, in so doing. Gregory also said that he had subsequently had intercourse with the complainant in a second bedroom. Each of the three accused asserted, in his statement, that what had occurred between himself and the complainant had occurred with the complainant's consent. According to the case which they sought to put before the jury, the complainant had had consensual intercourse, on the occasion in question, not only with each of them but also with a number of the other young men who had been present. Thus, Gregory said that a Frank Menzies had been in the main bedroom alone with the complainant after Cox and before he (Gregory) entered the room; that after Sharwood had been in the room with the complainant, each of a Frank Belan and a Daniel Gordon had successively been in the room alone with her; that, after Daniel Gordon had left the room, he (Gregory) had again entered the main bedroom and unsuccessfully attempted to have intercourse with the complainant; and that, as has been said, he subsequently had intercourse with her, with her consent, in a different bedroom. The statements of the other two accused were, in substance, similar to that of Gregory though there were marked discrepancies as to the order in which the various males had been alone in a bedroom with the complainant and the location (i.e. which bedroom) of the various occurrences. (at p569)

4. The complainant, in cross-examination, denied that either Frank Belan or Daniel Gordon had been present in the house on the occasion when the alleged rapes occurred. She agreed that Frank Menzies had been present but denied that she had had intercourse with him. She also expressly denied that she had had intercourse, on the relevant occasion, with either Frank Belan or Daniel Gordon. In the course of her cross-examination, Frank Menzies was brought into court and identified by the complainant. Frank Belan was also brought into court and the complainant swore that she had not seen him before. (at p570)

5. Frank Belan and Frank Menzies both gave evidence on behalf of the accused. Belan was called before Menzies. His evidence as to the identity of the males who had been alone with the complainant in a bedroom corresponded generally with that of the three accused. He gave evidence that he himself had been in a bedroom alone with the complainant. He was asked how the complainant was dressed when he went into the bedroom, and said: "She had nothing on, she was laying on the bed with a sheet on her . . . a sheet or blanket or something." Counsel for the accused asked: "What happened then? Did anything happen between you and (the complainant) then?" He answered in the affirmative. Counsel then asked what had occurred. That question was objected to and rejected. The Court of Criminal Appeal accepted that Belan "would have given evidence that he had had sexual intercourse with (the complainant) with her consent". Frank Menzies gave evidence that he had been with the complainant in the main bedroom after Cox (i.e. before Gregory). He also said that the complainant was wearing nothing when he entered the room. He was not asked what had occurred in the bedroom. The Court of Criminal Appeal was informed that the reason that matter was not pursued with Menzies was that counsel was of the view that "it was plain that the learned judge would have rejected" the question for the same reason which led him to reject a similar question when asked of Frank Belan. The application has been argued in this Court on the assumption that Frank Menzies, like Belan, would have given evidence that he had had intercourse with the complainant with her consent. In fact Menzies did say, in the course of cross-examination, that he had intercourse with the complainant on the date in question: further reference will be made to this evidence. Gordon was not called as a witness at the trial. It was stated by the applicants on affidavit before the Court of Criminal Appeal that it had been intended to call him, but in the light of the attitude of the learned trial judge to evidence of a similar kind sought to be had from Belan and Menzies, he was not called. No affidavit sworn by Gordon was filed. (at p570)

6. The main judgment in the Court of Criminal Appeal was that of Samuels J.A. with whom the other members of the Court (Cantor and Enderby JJ.) agreed. Samuels J.A. referred to the general common law rule that, while the complainant in a case of rape may be cross-examined on her prior sexual experience with men other than the accused, such cross-examination is directed to the credit of the complainant and independent evidence cannot be called to contradict her denials (see e.g., Reg. v. Holmes (1871) 12 Cox CC 137 ; Reg. v. Riley (1887) 18 QBD 481, at p 484 and Reg. v. Aloisio (1969) 90 WN (Pt 1)(NSW) 111 ). His Honour rejected the argument advanced on behalf of the present applicants that the matter is or should be "different when the acts charged and the alleged acts of intercourse with other than the accused all took place within a restricted time". In so doing, he expressed the view that that argument overlooked "the real ground upon which the cases proceed; and that is that consent to A is not evidentiary to consent to B - notwithstanding . . . that the two acts occurred within a closely related time". (at p571)

7. The statement that evidence that the complainant on a charge of rape consented to sexual intercourse with a man other than the accused is not relevant to the question whether she consented to intercourse with the accused, although correct in most cases, is not universally true. Usually, evidence as to the sexual experience of the complainant with other men could, at most, go to her credit, and if she has been cross-examined on the subject her answers must be accepted, in accordance with the general principle that a party may not impeach the credit of his opponent's witness by calling witnesses to contradict him or her on irrelevant matters. In some cases, however, the other acts of consensual intercourse may be so closely connected with the alleged rape, either in time and place, or by other circumstances, that evidence as to those other acts may be relevant to the issues at the trial; in those circumstances the evidence may not go solely to credit but may be probative of the fact that the complainant consented to have intercourse with the accused, or of the fact that the accused believed that the complainant was consenting. If evidence of this kind is relevant to an issue in the case, and not merely to credit, there is no rule of law that excludes it. The submission that there is some special rule of exclusion applicable to evidence of this kind is misconceived; the evidence of other sexual experience is excluded because, and only when, it is logically irrelevant to a fact in issue. This conclusion, which seems to us correct in principle, is supported by the recent decision of the English Court of Appeal in Reg. v. Viola (1982) 1 WLR 1138; (1982) 3 All ER 73; 75 Cr App R 125 . (at p571)

8. In the present case, the alleged acts of intercourse with Belan, Menzies and Gordon took place in one house, during one afternoon, on an occasion on which the applicants were present, and when, according to the case for the applicants, the various men took it in turns to go into the bedroom with the complainant. If the jury believed that the complainant consented to intercourse with Belan, Menzies and Gordon, that conclusion would have substantially supported the further conclusion that she consented to intercourse with the applicants or might at least have engendered a reasonable doubt as to whether she had consented. The evidence which it is accepted that Belan and Menzies would have given, and that it is said that Gordon would have given, was relevant to the issue of consent. Unless there was evidence that the applicants were in some way aware of what occurred in the room once the other men had entered it, evidence of this kind as to what occurred there would not have been relevant to the further issue of belief in consent. To avoid possible misunderstanding it should be added that the evidence that the other men went into the room was, in the circumstances, relevant to the issue of belief. It should be added also that s. 409B of the Crimes Act 1900 (N.S.W.) did not apply to the present case, since the alleged rape occurred before s. 409B took effect. However, it is necessary for the purposes of s. 409B to consider whether the evidence was admissible at common law, and the questions raised in the present case remain live ones in New South Wales as well as elsewhere in Australia. (at p572)

9. 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. (at p572)

10. 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. Did you see anything funny in it? 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. (at p573)

11. 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. (at p573)

Orders

GREGORY V. THE QUEEN.

Application for special leave to appeal granted.

Appeal allowed.

Order that the judgment of the Court of Criminal Appeal be set aside and in lieu thereof order that the appeal to that Court be allowed, the conviction set aside and a new trial ordered.

SHARWOOD V. THE QUEEN.

Application for special leave to appeal granted.

Appeal allowed.

Order that the judgment of the Court of Criminal Appeal be set aside and in lieu thereof order that the appeal to that Court be allowed, the conviction set aside and a new trial ordered.