2.Set aside orders 2, 3 and 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 2 June 2011 and, in their place, order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of Victoria
Representation
T Gyorffy SC and E H Ruddle for the appellant (instructed by Solicitor for Public Prosecutions (Vic))
C B Boyce with L C Carter for the respondent (instructed by Leanne Warren & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Getachew
Criminal law – Rape – Mens rea – Directions to jury – Complainant penetrated anally while asleep – No evidence and no assertion that accused believed complainant consenting – Trial judge directed jury that mental element of offence in s 38(2)(a)(i) of Crimes Act 1958 (Vic) established if accused aware complainant was or might be asleep – Court of Appeal held trial judge's direction precluded jury from considering possibility that accused believed complainant was awake and consenting to intercourse – Whether open on evidence for jury to conclude that accused may have believed complainant to be awake – Whether trial judge permitted or required to direct jury about accused's belief in consent if no evidence or assertion that accused believed in consent.
Words and phrases – "aware", "believed", "if evidence is led or an assertion is made".
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ. The respondent to this appeal ("the accused") was presented, in the County Court of Victoria, on a presentment alleging one count of rape. The presentment alleged that the accused had intentionally sexually penetrated the complainant without her consent while being aware that she was not consenting or might not be consenting.
The complainant gave evidence at the trial that, after a night of drinking in the City of Melbourne with three others (of whom one was the accused), she was "getting very drunk". In the early hours of the morning, the four left the city and went to a house in the suburbs. The complainant and the accused lay on a mattress on the floor; the other two shared a bed in the same room.
The complainant said in her evidence that as she was going to sleep the accused started touching her leg and she told him to go away. After a time the accused again touched her and she told him that, if he did not stop touching her, she would sleep in the car. According to the complainant, the accused responded by offering to sleep elsewhere but she told him: "Don't worry about it, just don't touch me and let me sleep." The complainant then…
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.
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Details
AGLC
R v Getachew [2012] HCA 10
Case
[2012] HCA 10
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against a decision of the Court of Appeal of Victoria concerning the mental element of the offence of rape under section 38(2)(a)(i) of the *Crimes Act 1958* (Vic). The appellant, Getachew, had been convicted of rape, with the complainant having been anally penetrated while asleep. The central dispute revolved around the trial judge's directions to the jury regarding the accused's state of mind.
The legal issues before the High Court were whether the trial judge's direction to the jury, which stated that the mental element was established if the accused was aware the complainant was or might be asleep, was correct. Specifically, the Court had to determine if this direction improperly precluded the jury from considering the possibility that the accused believed the complainant was awake and consenting, and whether it was open on the evidence for the jury to conclude such a belief. Furthermore, the Court considered whether a trial judge is permitted or required to direct the jury about an accused's belief in consent when there is no evidence or assertion that the accused held such a belief.
The High Court allowed the appeal, finding that the trial judge's direction was erroneous. Their Honours held that the direction effectively removed from the jury the question of whether the accused believed the complainant was awake and consenting. The Court reasoned that if there is evidence upon which a jury could conclude that the accused believed the complainant was awake and consenting, then the jury must be permitted to consider that possibility. The absence of an explicit assertion by the accused of such a belief does not preclude the jury from inferring it from the evidence. Consequently, the Court set aside the orders of the Court of Appeal and ordered that the appeal to that Court be dismissed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 2, 3 and 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 2 June 2011 and, in their place, order that the appeal to that Court be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ