Getachew v The Queen

[2011] VSCA 164

­­SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0942

TOMAS GETACHEW

v

THE QUEEN

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JUDGES	BUCHANAN and BONGIORNO JJA and LASRY AJA
WHERE HELD	WANGARATTA
DATE OF HEARING	1 June 2011
DATE OF JUDGMENT	2 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 164
JUDGMENT APPEALED FROM	R v Getachew (Unreported, County Court of Victoria, Judge Allen, 27 November 2009)

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CRIMINAL LAW – Rape – Mens Rea – Trial judge erred in instructing the jury that the Crown had established mens rea if the accused was aware that the complainant might be asleep – Evidence was led of facts capable of founding an inference that the accused believed the complainant was consenting – Appeal allowed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Leanne Warren & Assocs
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. After a short trial in the County Court, the applicant was found guilty on one count of rape and was sentence to be imprisoned for a term of four years and nine months with a minimum term of two years and nine months. 

1. The applicant seeks leave to appeal against his conviction. 

1. The principal Crown witness was the complainant.  She gave evidence that on 29 June 2007, she went to a bar in the centre of Melbourne where she met a friend called Mary.  The complainant drank champagne.  She said that she left the bar with her friend, a friend of Mary called Mhlanga Bothin and the applicant.  The group went to another bar in the central business district.  The complainant drank bourbon and champagne. 

1. In the early hours of the next morning the four left the bar.  The complainant said she was ‘getting very drunk’.  The complainant decided not to drive home in her car.  Instead, she, Mary and the applicant were driven by Bothin to a bungalow at the rear of a house in which Bothin’s parents lived.  The bedroom of the bungalow contained one bed.  Bothin placed a mattress on the floor of the bedroom for the complainant and, it seems, the applicant, while Bothin and Mary shared the bed.

1. The complainant was wearing a short skirt, a top and a coat.  The complainant said that as she was going to sleep, the applicant touched her leg.  She told him to go away.  The applicant touched her again.  The complainant said that she told him that if he did not stop touching her, she would sleep in the car.  The applicant offered to sleep somewhere else but the complainant said she told him, ‘Don’t worry about it.  Just don’t touch me and let me sleep’.

1. The complainant gave evidence that:

After I went to sleep, I woke up and the applicant was lying behind me and my clothing was all dishevelled and my skirt was up and my underwear was down and he was thrusting into me.

1. She said that she was lying on her left side and the applicant was behind her.  She said she had her knees up and the applicant was:

holding me on my hips and thrusting his penis into my anus.  It wasn’t a deep penetration, I would estimate about one centimetre, but it was definitely inside me.  It was penetration.

1. The complainant said that when she awoke, she realised what the applicant was doing and immediately clenched her muscles and ‘removed him’. 

1. The complainant said she pushed the applicant away, got up and went out to her car.  She said she was ‘in complete shock’.

1. The applicant also got into the car and the complainant said he asked her what was wrong.  She said that she recalled saying to him, ‘Is that why I woke up with your dick half‑way up my arse’, and that the applicant replied, ‘I was just freezing’. 

1. The complainant told the applicant to get out of her car and he did.  The complainant went into the bungalow and came out with Mary and Bothin.  They sat in the car.  The complainant then drove Mary home in her car.  The complainant reported the matter to the police who interviewed the applicant.  The applicant exercised his right to remain silent.

1. Defence counsel called no evidence. 

1. The first ground of the application is as follows: 

The learned trial judge erred in his directions to the jury on the mental element required for proof of the offence of rape and in particular the learned trial judge erred by directing that such element would be established, if the accused was aware that the complainant might be asleep.

1. Section 38 of the Crimes Act 1958 provided that a person commits rape if he or she intentionally sexually penetrates another person without that person’s consent while, inter alia, being aware that a person is not consenting or might not be consenting. 

1. Section 36 of the Act provided that a person who was asleep was to be taken to not consent to an act. Section 37 of the Act provided that, ‘If relevant to the facts in issue in a proceeding’, a judge was to direct a jury as to the matters set out in ss 37AAA and 37AA. Section 37AA provided:

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider—

(a)       any evidence of that belief;  and

(b)whether that belief was reasonable in all the relevant circumstances having regard to—

(i)in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and

(ii)whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

(iii)      any other relevant matters.

1. The trial judge in his charge told the jury that the prosecution was required to prove beyond reasonable doubt that at the time at which he sexually penetrated the complainant, the accused was either aware that the complainant was not consenting or that she might not be consenting.  His Honour continued: 

This element will be satisfied if the prosecution can prove beyond reasonable doubt that the applicant was aware that the complainant was either asleep or unconscious or so affected by alcohol as to be incapable of freely agreeing or aware that she might be in one of those states.  This element will also be satisfied if the prosecution can prove on any other basis arising from the evidence, that the accused was aware the complainant was or might not be consenting or freely agreeing to the sexual penetration.

1. Counsel for the applicant submitted that the judge’s directions conflated the complainant’s lack of consent with mens rea.  The reasonableness of an accused’s state of belief in a complainant’s consent was a matter that the jury were to consider in determining whether the prosecution had proved beyond reasonable doubt that the accused was aware that a complainant was not or might not have been consenting to a sexual act.  The legislature thus contemplated an unreasonable but honestly held belief in consent.  The legislature contemplated, so it was said, the possibility that the prosecution might fail to prove the mental element of the offence of rape even though a belief and consent on the part of the accused was unreasonable because the accused was aware that the complainant might be asleep.

1. Counsel said that it was open to the jury to be persuaded beyond reasonable doubt that the applicant thought the complainant might be asleep and yet think it reasonably possible that the applicant positively believed that the complainant was awake.

1. Counsel for the respondent submitted that there was simply no issue in this trial that the applicant was aware that the complainant was not consenting or might not be consenting.

1. In the course of his address to the jury, counsel for the applicant said: 

This case, as you will have appreciated from the way it has been run from this end of the Bar table, has really been all about the first of those elements, the issue of whether or not penetration occurred.

Counsel returned to this theme saying later that,  ‘We are getting right to the nub of the defence case’, stating that it was for the prosecution to prove beyond reasonable doubt that penetration did in fact occur and again, ‘It is penetration that is the issue here’.

1. The cross‑examination of the complainant was conducted on the assumption the complainant was asleep and could not have known whether her anus was penetrated by the penis of the applicant.  There was no evidence of the applicant’s state of mind.  He made a record of interview in which he failed to answer any questions and stood mute at his trial.  The only evidence was that of the complainant that she awoke when the penis of the applicant was penetrating her anus.

1. It was not encumbent upon counsel for the applicant at trial to expressly raise the question of the applicant’s awareness that the complainant might not be consenting.  The jury were required to be satisfied that the element of mens rea had been proved and, accordingly, counsel for the applicant was entitled to assume that the trial judge would instruct the jury as to that requirement. 

1. I think that the trial judge erred in his instructions as to the element of mens rea in telling the jury that the requirement to prove mens rea was met if the jury concluded that the applicant was aware that the complainant might be asleep.  The jury could be satisfied that the applicant was aware of this possibility but at the same time think that it was a reasonable possibility that the applicant believed the complainant was awake. 

1. Counsel for the respondent submitted that as the applicant failed to advance a version of the facts in his record of interview disclosing a belief on his part that the complainant had consented and stood mute at his trial, the existence of a belief the complainant was consenting was merely speculative.

1. In my opinion, however, there were facts deposed to by the complainant that were capable of founding an inference that, at the moment when the penetration commenced, the applicant believed the complainant was consenting.  The complainant said that she protested twice when the applicant touched her.  The applicant then placed his body immediately behind the complainant, raised her skirt and pulled down her underwear and commenced to penetrate her.  Critically, during these manoeuvres, which involved a degree of physical manipulation by the applicant, there was no demur on the part of the complainant.  The jury may have concluded that there was no protest by the complainant because she was asleep.  Equally, if they had been properly instructed, the jury may have concluded that the applicant thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that the applicant believed that she had finally consented.

1. Unfortunately the trial judge’s charge apparently precluded the latter conclusion.

1. The only other ground of the application which was argued is as follows, and I there set out the second ground of appeal.

The learned trial judge erred by failing properly to direct as to the evidence of the alleged admission that was said to have been made to the witness Bothin and, in particular, the learned trial judge erred by failing to direct the jury of the means by which that evidence was, at best, a partial admission to the actus reus of the alleged offence but in total constituted a statement constituting the full defence of accident.

1. Bothin gave evidence that there was a disturbance on the mattress and the complainant was crying and went out to the car.  He said that when he awoke the next morning, he spoke to the applicant and asked him what had happened during the night.  He said that the applicant: 

… explained to me that she was lying towards the back, like, and pushing back on him and that his dick ended up in her arse.

1. In his charge to the jury, the trial judge recounted Bothin’s evidence and said that an admission is ‘strong evidence of the guilt of a person who makes it’, and proceeded to instruct the jury that it could not use the admission unless they were satisfied beyond reasonable doubt that it had been made by the applicant and that it was truthful. 

1. Counsel for the applicant submitted that the admission described by Bothin constituted a defence to the charge in that it disclosed that the penetration was accidental.  Accordingly, counsel said it was an error for the judge to treat the applicant’s statement as an admission of guilt.

1. This submission, in my view, seeks to erect an issue that was not part of the trial.  The only issue at the trial was whether or not the act of penetration occurred.  The applicant’s statement recounted by Bothin was an admission that there was penetration.  Counsel from the applicant at trial did not rely on Bothin’s statement as a defence to the charge and took no exception to this part of the judge’s charge.

1. For the forgoing reasons, I would uphold the first ground of the application and grant the application for leave to appeal against conviction.  I would treat the appeal as instituted instanter and allowed, set aside the conviction and the sentence

entered below and order that there be a retrial.

BONGIORNO JA:

1. The applicant was entitled to be tried according to law by a jury properly instructed as to the law as it applied to his case. Although no assertion was made that the applicant believed that the complainant consented to sexual penetration and there was no direct evidence of such belief before the Court so as to enliven the provisions of s 37AA of the Crimes Act 1958, it was nevertheless incumbent upon the Crown to prove the mental element of the crime of rape as defined in s 38(2)(a) of the Act. The Crown had to prove that the accused was aware at the time of penetration that the complainant was not consenting or might not be consenting to that act.

1. The direction given to the jury by the trial judge, which formed the basis of ground 1 on this appeal, effectively precluded their consideration of this issue according to law. 

1. I agree with Buchanan JA that leave to appeal should be granted, the appeal should be allowed and a new trial should be ordered.

LASRY AJA:

1. I agree, for the reasons given by the presiding judge, that the trial judge's direction to which he referred was in error.  That error is the basis of ground 1 of the appeal. 

1. I am, however, not able to agree that the error led to any miscarriage of justice in the applicant’s trial.  In my opinion there was no reasonable possibility that if the jury had been properly directed the verdict might have been different based on a failure by the Crown to prove an absence of a belief in consent by the applicant. 

1. I have reached that conclusion for the following reasons.  First, the trial was conducted on the basis that the sole issue was whether or not the applicant

penetrated the complainant.  Second, no exception was taken by counsel for the applicant at the trial to the trial judge's direction to the jury that there was no issue about the fourth element of the offence.  Third, as counsel for the respondent in this Court submitted, there was nothing before the jury in the form of a record of interview or evidence from the applicant which might have raised the issue of his belief in consent.  Fourth, the complainant had made clear her rejection of the applicant on two occasions before this incident occurred.  Fifth, when penetrated by the applicant, the complainant was in a position consistent with her being asleep.  Sixth, there was no positive conduct by the complainant which might have led the applicant to conclude that his sexual approach was now being welcomed.  Seventh, after the complainant confronted the applicant about what had occurred, his response to her on her evidence did not include any indication that he believed his penetration of her would be welcome, but rather that he did what he did because he was so cold.

1. In my opinion, a correct direction from the trial judge would have made no difference to the verdict and I would dismiss the appeal.

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