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Gregory v The Queen

Gregory v The Queen

Case [1983] HCA 24 9 August 1983

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gregory v The Queen

Details

AGLC: Gregory v The Queen [1983] HCA 24
Case: [1983] HCA 24
Decision Date: 9 August 1983

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Gregory against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence in the context of the trial.

The Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant following his arrest, specifically statements made by him and a search of his premises. Furthermore, the Court had to consider whether the summing-up to the jury on the issue of self-defence adequately reflected the relevant legal principles, particularly concerning the appellant's subjective belief as to the necessity of using force.

The majority of the Court held that the evidence obtained from the appellant was admissible. They reasoned that the police had acted lawfully in arresting the appellant and that the subsequent statements and search were not vitiated by any illegality. On the issue of self-defence, the Court affirmed that the jury must consider the circumstances as the accused believed them to be, including any mistaken beliefs, and then determine whether the force used was reasonably necessary in those perceived circumstances. The trial judge's directions were found to be deficient in this regard, as they did not sufficiently emphasise the subjective element of the appellant's belief.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders