Gardiner v R

The Court of Criminal Appeal held that while no single question in the Crown prosecutor's cross-examination of the accused constituted a miscarriage of justice, the cumulative effect of repeatedly reciting prosecution witness evidence followed by questions such as 'but you deny that' created an unfair impression that the prosecution case was unanswerable and implicitly reversed the onus of proof, particularly given the extreme delay (60 years) which had rendered much potentially exculpatory evidence unavailable. The Court confirmed that asking an accused whether a prosecution witness is 'wrong' is not per se impermissible, but the effect of such questions must be assessed in context, and questions that implicitly invite the accused to explain why a prosecution witness gave contrary evidence carry the same vice as prohibited 'why is the witness lying' questions. On the permanent stay ground, the Court held that notwithstanding extreme delay and significant presumptive and actual prejudice, the stay was correctly refused given the evidence and arguments that remained available to the applicant and the directions given to the jury.