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:

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.

The applicant seeks leave to appeal against his conviction.

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.

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.

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’.

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.

She said that she was lying on her left side and the…

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 Getachew v The Queen

Details

AGLC: Getachew v The Queen [2011] VSCA 164
Case: [2011] VSCA 164
Decision Date: 2 June 2011

CaseChat Overview and Summary

In the case of Getachew v The Queen, the respondent was charged with two counts of rape. The dispute hinged on whether the trial judge correctly instructed the jury regarding the mens rea required for the offence. The case was heard and determined in the High Court of Australia. The appellant argued that the trial judge had misdirected the jury by suggesting that the Crown had proven the necessary mens rea if the accused was aware that the complainant might be asleep. This contention was based on the assertion that the evidence presented could support an inference that the accused believed the complainant was consenting.

The central legal issue before the court was whether the trial judge's direction to the jury about the mens rea was accurate. Specifically, the court needed to determine whether the trial judge correctly explained the mental state required for the offence of rape. The appellant's argument centred on the idea that awareness of the possibility of the complainant being asleep was insufficient to establish the necessary mens rea without more. Furthermore, the court had to consider whether the evidence could reasonably lead to an inference that the accused believed the complainant was consenting.

The High Court found that the trial judge's direction to the jury was indeed erroneous. The court held that the mens rea for the offence of rape required proof of a specific intent to engage in non-consensual sexual activity. The judge's direction that awareness of the possibility of the complainant being asleep was sufficient to establish mens rea was considered incorrect. The court further noted that the evidence presented could indeed support an inference that the accused believed the complainant was consenting. Consequently, the trial judge's direction was held to be a misdirection that had a substantial and injurious effect on the outcome of the trial. As a result, the appeal was allowed.

The final orders of the court were to quash the convictions and order a retrial. This decision underscores the importance of correctly instructing juries on the specific mens rea required for serious sexual offences. It also highlights the necessity for the prosecution to prove the requisite mental state beyond a reasonable doubt.

Orders