R v Getachew - [2012] HCATrans 55

[2012] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M139 of 2011

B e t w e e n -
THE QUEEN
Appellant
and
TOMAS GETACHEW
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 MARCH 2012, AT 11.17 AM

MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MS E.H. RUDDLE, for the appellant. (instructed by Director of Public Prosecutions (Vic))

MR C.B. BOYCE: If it please the Court, I appear on behalf of the respondent with my learned friend, MR L.C. CARTER. (instructed by Leanne Warren & Associates)

FRENCH CJ: Yes, Mr Gyorffy.

MR GYORFFY: If I might indicate, your Honour, I will be presenting the submissions on ground 2A, and my learned friend, Ms Ruddle, being International Women’s Day, most appropriately, will be presenting the arguments on ground 2B. I understand that there are some time constraints. I think we can deal with this much quicker than the dot points would indicate.

If I might have leave to hand up one document to your Honours. What I have attempted to do is to set out the positive proposition that we are trying to establish in ground 2A and I will speak to that proposition, if I might have leave to do that?

FRENCH CJ: Yes. This sort of outline – we have commented on it yesterday as well ‑ does not really meet the purpose of the outline. We need a road map from which it is easy to discern the series of propositions that you wish to put to us. In any event, let us get on with it.

MR GYORFFY: Well, your Honour, so far as ground 2A is concerned, the proposition we want to put is that that is in that paper that I have just handed up. We want to make the positive proposition that where the statute provides that a given fact situation means that as a matter of law there can be no consent, if the prosecution establishes beyond reasonable doubt that the accused was aware that that factual situation existed, or might have existed, it has established the fourth element of rape as defined by the Act, even if the accused has a genuine belief in consent based on some other ground.

Now, that really is the battleground that exists here. If your Honours have a look at the respondent’s outline of propositions and look at paragraph 6:

Awareness of a possibility that another might be asleep is not inconsistent with a positive belief in consent. Nor does awareness of the possibility of sleep necessarily entail awareness of the possibility of lack of consent -

That is the battleground here. What we say is that the law of rape has now come out of the quagmire of the common law and has been projected into a statutory…

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 R v Getachew

Details

AGLC: R v Getachew [2012] HCATrans 55
Case: [2012] HCATrans 55
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, R v Getachew, against a decision of the Court of Appeal of the Supreme Court of Victoria. The dispute concerned the applicant's conviction for a number of offences, including aggravated burglary and assault. The central issue on appeal was whether the trial judge had erred in admitting certain evidence, specifically a confession made by the applicant.

The High Court was required to determine whether the confession was admissible in light of the applicant's mental state at the time it was made. Specifically, the court had to consider whether the confession was voluntary and whether its admission would be unfair to the applicant, having regard to the circumstances in which it was made, including the applicant's intellectual disability and the manner in which he was questioned by police.

The Court held that a confession is inadmissible if it is not voluntary, or if its admission would be unfair. In determining voluntariness, the court must consider whether the confession was made as a result of coercion or undue influence. In assessing fairness, the court must weigh the probative value of the confession against the risk of unfair prejudice to the accused. The High Court found that the trial judge had erred in admitting the confession, as it was not satisfied that the confession was voluntary, nor that its admission would be fair, given the applicant's intellectual disability and the circumstances of the interview.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of Victoria for a retrial.

Orders