R v Getachew

[2011] HCATrans 275

[2011] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M58 of 2011

B e t w e e n -

THE QUEEN

Applicant

and

TOMAS GETACHEW

Respondent

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 29 SEPTEMBER 2011, AT 12.43 PM

Copyright in the High Court of Australia

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

MR C.B. BOYCE:   Please the Court, I appear with my friend, MR L.C. CARTER, for the respondent.  (instructed by Leanne Warren & Associates)

HEYDON J:   Mr Boyce, I think it might be convenient if we hear from you first.

MR BOYCE:   Thank you.  Your Honours, it is submitted in this case that special leave should be refused because the applicant’s grounds have no point of principle worthy of a grant of special leave.

HEYDON J:   I agree with that, but it does seem an extraordinary judgment by the Court of Appeal.

MR BOYCE:   The question that arose in the Court of Appeal, it is submitted with respect, was whether there had been error in the directions to the jury as to the question of the mens rea defensive right.  The Court of Appeal unanimously found that there had been error and, as such, there had been a wrong decision on a question of law.  The question then became whether there had been any substantial miscarriage of justice, namely whether the proviso should apply.  Two of the Justices who heard the case were not prepared to apply the proviso ‑ ‑ ‑

BELL J:   Mr Boyce, before we get to the proviso, can I just take you to application book 125, paragraph 16.  It sets out the direction, I think, that is the subject of the finding.

MR BOYCE:   Yes, your Honour.

BELL J:   Can you explain to me how in the circumstances of this case in which the respondent did not conduct the trial on the basis of an assertion of belief in consent, what is wrong with the direction?

MR BOYCE:   The answer to your Honour’s question is as follows.  As found in the judgment of the presiding judge, Justice Buchanan, at paragraph 23 of his Honour’s reasons at application book 127, his Honour said this:

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.

This fact is a crucial point –

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.

We would insert there “and consenting”.

BELL J:   Mr Boyce, just for my benefit, if a person is aware that another might be asleep, how is it that one might at the same time entertain a belief that they were awake?

MR BOYCE:   One might have a positive belief, that is, an odds‑on belief, as it were, that the person is awake ‑ ‑ ‑

BELL J: I think it is with the question of an odds‑on belief that I have some difficulty. When one looks at the provisions of section 38 of the Crimes Act 1958 (Vic):

(2)      A person commits rape if—

(a)he or she intentionally sexually penetrates another person without that person’s consent while being aware that the person is not consenting or might not be consenting –

Does not the balance of that make your odds‑on belief contention difficult to maintain?

MR BOYCE:   Not according, your Honour, to settled authority in the Court of Appeal in Victoria and perhaps one of the most recent iterations – although it has been approved of since then – is the case of Worsnop v The Queen, your Honours, which appears behind tab 18 of the joint book of authorities, and in particular one finds the answer to your Honour’s question in the judgment of his Honour Justice Ashley, with whom the other members of the Court agreed.

In Worsnop [2010] VSCA 188 and it appears in our written submissions at application book 151 at paragraph 3.14 – in particular at paragraph 20 of his Honour’s decision, at about point 5 – a little above point 5, your Honours will see a direction given to the jury in these terms. There is a final paragraph in that direction, but if I can read the second sentence of it:

Even if you find that the accused did have such a belief –

that is, a belief in consent –

you will still need to decide whether the prosecution has proved his fourth element.  You might find that the accused believed the complainant was consenting, but still be satisfied, beyond reasonable doubt, that the accused was aware of the possibility that the complainant was not consenting.  In that case the fourth element would be met.

BELL J:   Can I just interrupt you, Mr Boyce, to inquire – the case to which you have just referred us, I think, was one in which the trial judge gave directions pursuant to section 37AAA and 37AA, is that right?

MR BOYCE:   That is so.

BELL J:   Now, as I understand this legislative scheme, a judge is constrained not to give directions respecting the issue of consent, that is, the 37AAA and AA directions, unless the issue is raised in the trial.  That issue was not raised in this trial.  Is that so?

MR BOYCE:   There was no application for the judge to give the directions pursuant to 37AA or AAA in this case.

BELL J:   It is not just there was no application.  The assertion of consent was not made, as I understand it, which would seem to me to engage 37(2), the direction that:

A judge must not give to a jury a direction of a kind referred to in section 37AAA ‑ ‑ ‑

MR BOYCE:   The assertion of consent was not made and the directions according to 37AAA and AA were not given, but they are not material, in my respectful submission, to the argument.

BELL J:   The matter that I am seeking to just tease out with you now relating to the decision in Worsnop, and without expressing a view about the observations in that case, is this.  In a case in which consent, that is, the accused’s belief that the complainant was consenting, is at issue, the judge is required by statute to give certain additional directions to the jury and those are found in 37AAA and 37AA. 

It might be thought that to the extent that a judge is required under 37AAA to explain the meaning of “consent” and to explain the circumstances in which the law deems the complainant not to have consented, and then to give the further directions respecting how the jury might approach the reasonableness of the accused’s belief, different considerations concerning the adequacy and extent of directions arise to the directions that were necessary in a trial where belief in consent was not an issue, but where the judge was required to direct that an element of the offence was proof that the accused was aware that the complainant was not consenting, or that she might not be.

MR BOYCE:   That is right – sorry, your Honour.

BELL J:   That was the extent of it, as I understand it.

MR BOYCE:   Yes, section 37AA and more particularly AAA is instructive it tells the court about the use that can be made of deemed section 36 states of non‑consent.  It tells us that those deemed states are to be considered in determining whether the belief was reasonable in all the relevant circumstances, but that only goes to the question of whether the belief was held.  That issue did not arise in this case, but what his Honour the learned trial judge did do in this case is import the section 36 state of deemed non‑consent, if I can put it that way, concerning asleep, into the definition of mens rea, and said to the jury if this accused was aware that the complainant was or might be asleep, then the fourth element – the mens rea part of the charge – would be proven.  His Honour said that the jury needed to consider that, and had to have it found proven.

Their Honours in the court below found that because section 37AAA is relevant to the consideration of the reasonableness of the belief in determining a question whether the belief was held, it was not correct for the learned trial judge to, as it were, perform the conflation exercise that his Honour did.  The question then became – and that was the error - did it make any difference in this trial and ‑ ‑ ‑

BELL J:   I think there is an anterior question, Mr Boyce, and that is whether or not the direction in having regard to the issues in this trial portrayed any error.

MR BOYCE:   I am not sure that I am completely at odds with your Honour.  The direction was aware that was not consenting, or might not be consenting.  The direction given was aware that was asleep, or might be asleep.  The conflation of section 36 occurs in that, but that was point below.  Does it make any difference, or could it have made any difference in this case? 

What their Honours decided, in my submission, in accordance with settled authority of the court below that has come through from Worsnop, is this.  The Victorian approach to proof of the law of rape is of course a subjective one, that is to say, there is no onus on the defence to raise an honest and reasonable mistake of fact - the court has found in Worsnop and in a series of cases that have followed perhaps – I think the last one came down just the other day – that the form of direction that I took your Honour to that is found in Worsnop, namely if you have a belief in consent but still consider it possible that there might not be consent, is an error.  The question then becomes, is the proviso applicable?  My respectful submission is their Honours’ finding is entirely consistent with that.  The question became, as his Honour Justice Buchanan determined, this:

The jury could be satisfied that the applicant –

This is at paragraph 23, second sentence –

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 –

much the same form of reasoning one finds in Worsnop.  When one goes further ‑ ‑ ‑

BELL J:   What does ‑ ‑ ‑

MR BOYCE:   Can I take your Honour – sorry, I will answer your Honour’s question.

BELL J:   I am having difficulty understanding the content of the provision in 38(2)(a)(i) respecting the mens rea of the accused:

while being aware that the person is not consenting or might not be consenting –

“Might” invites consideration of possibilities, does it not?

MR BOYCE:   Yes.  To answer your Honour’s question can I take your Honour directly to paragraph 35 in Worsnop at page 11?  I have taken your Honours earlier to the impugned direction in Worsnop.  Their Honours in Worsnop, or Justice Ashley in Worsnop, at paragraph 35 said this:

In the event, it appears to me that the position remains as stated in Flannery and Saragozza –

and his Honour is referring back to early authorities concerning the common law in the State of Victoria –

in the passages which I earlier cited.  Once a jury accepts the existence of a belief in consent –

And footnote 13:

I am not to be taken as saying that it is for the accused to establish an asserted belief.

That is to say, if it is reasonably possible that an accused has a positive belief in consent, it is submitted, in accordance with the way in which rape is approached in Victoria –

the Crown could not establish either that the accused was aware that the victim was not consenting or else that the victim might not be consenting.

Now, in the end, it is submitted, their Honours’ decision in the present case is entirely consistent with that approach made by the Court of Appeal in Worsnop.

BELL J:   That approach involved a discussion of the significance of the legislative changes introduced addressing issues of honest belief in consent in a case where that issue is raised, and we are not here concerned with the rightness or otherwise of the conclusion reached in Worsnop about the sufficiency of directions required in such a case.

MR BOYCE:   The issue was raised in this sense, your Honour, in the sense that the jury had to be persuaded beyond reasonable doubt of mens rea.  There was a clear not guilty.  Certainly, the accused did not give any evidence asserting the belief and therefore section 37AAA did not come into play and there was no direction given, but still the direction had to be – the finding of the court below was on all fours theoretically and in terms of the application of the accepted principle in Saragozza and Flannery with the finding of the court in Worsnop at paragraph 35.

Can I explain it this way, your Honour?  It is submitted, as I said to your Honours, that the law in Victoria since Worsnop - the jury failed to be persuaded beyond reasonable doubt when the accused did not have a positive belief in consent then the mens rea has not been established.  A jury could fail to be so persuaded if they thought, it is submitted, that there was a reasonable possibility in the circumstances in a case such as the present that the accused believed that the complainant was awake, positively.  A jury could infer the relevant belief in consent, that is, there is a reasonable possibility of such from the belief that the complainant was awake in conjunction with other evidence such as the evidence that is referred to by Justice Buchanan in paragraph 25.

If there was sufficient evidence at the trial by way of positive evidence from the accused or other circumstantial evidence produced in the case for the jury to draw that inference that inference would then be wrongly foreclosed if the jury are simply told that it is sufficient to establish mens rea if the accused was aware that the complainant might be asleep, whereas Justice Buchanan recognised, it is submitted, an accused might in these circumstances positively believe the complainant to be awake and thus consenting, and yet at the same time consider it a better possibility, let us say, that the complainant is asleep.

BELL J:   Well, now you are departing from the language in which the jury were directed.

MR BOYCE:   Well, I have used the word “better possibility”, but “might”, if I could change it to “might”?  What does “might” mean?  It generally ‑ ‑ ‑

BELL J:   That is the language of the provision and that describes the mens rea for the offence.

MR BOYCE:   Indeed, your Honour is correct.

BELL J:   The judge was required to direct the jury on so much of the law as was relevant to the determination of the issues in the trial.

MR BOYCE:   Yes.  One of the issues in ‑ ‑ ‑

BELL J:   His Honour correctly directed with respect to the mental element that it was incumbent on the prosecution to prove in a case in which there was no issue respecting that element raised ‑ ‑ ‑

MR BOYCE:   No, no, your Honour, I concede the case was fought on the question of penetration, but the defence did not concede, nor could it concede the mental element, and the judge told the jury that they had to be persuaded of the required standard of the mental element.  So it was not that there was no issue as to the mental element.  I concede, your Honour, that there was no ‑ ‑ ‑

BELL J:   There was no issue in the sense that the defence case was there was no intercourse.  There was no act of intercourse so consent simply did not arise.

MR BOYCE:   Yes, in that sense that is so, but the jury still needed to be persuaded beyond reasonable doubt of mens rea.

BELL J:   That is why the judge told them that even though the matter had not been, as it were, an issue nonetheless they were required to be satisfied of it beyond reasonable doubt.

MR BOYCE:   That is so.  Did the judge commit an error in defining the mens rea?  The Court of Appeal unanimously – that is, including the dissent of Justice Lasry – decided that there had been an error; the question then became the application of the proviso.  Their Honours, the majority justices on that question in the court below, did nothing more, in my respectful submission, than decide the case in accordance with the accepted authority that has been referred to in Worsnop, and that has been cited and approved of since that time.  I might say, the Crown appear to have accepted the correctness of Worsnop since its decision, since it having been decided in the Court of Appeal.  I see my light is on.

HEYDON J:   Well, if there is any particular final point you wish to make, notwithstanding the redness of the light, by all means make it, Mr Boyce.

MR BOYCE:   Well, only this if I may, your Honour?  I should perhaps have brought to attention that in I think the penultimate case that looked at Worsnop – it is not in the authorities but I can tell your Honours about it – it is the case of Sibanda v The Queen [2011] VSCA 285. I have copies for the Court. If I could just take your Honours to paragraph 7 of Justice Neave’s decision in that case? This was a case – and it is a rather helpful case in this instance – it gathers together, including the case of Getachew, the present case, cases such as this or of a similar nature to this case where Worsnop has been employed, and her Honour observed at paragraph 7:

I also wish to comment that the decision in Worsnop v The Queen and the cases following it, demonstrate the need for legislative change to clarify and simplify the required mens rea for rape.  The current provisions have failed to implement the recommendations made by the Victorian Law Reform Commission, which were intended to ensure that a person who sexually penetrates another person, whilst being aware that the latter is not or might not be consenting to penetration, is guilty of rape -

a recognition by her Honour that if there is to be change in this area, and we would submit change that would or might affect the outcome of the present case, it is for the legislature to make the change.

BELL J:   One difference is that in this case the defence was that the complainant was awake and consenting, so the issues raised by 37AAA and 37AA were squarely for determination.  Again, Mr Boyce, not going into whether her Honour is right in saying that there is some infelicity in the

provisions to achieve the result or whether some of the decisions are right or wrong, but without trespassing on that territory, that is not this case.

MR BOYCE:   Your Honour, I agree with that, but in my respectful submission the difference between the two in that sense – there is no ground here saying that the learned judge erred in failing to give a direction pursuant to section 37AAA.  The differences are not material to the outcome; I concede there is a difference.  Now, I am way over my time, your Honour.

HEYDON J:   Yes, thank you, Mr Boyce.  There will be a grant of special leave in this matter.  Mr Gyorffy, you have agitated in your written argument in this special leave application a whole lot of points that do not really seem to arise out of the Court of Appeal’s judgment and I think it will be necessary for you to, as it were, reconsider your position in that respect.  Do counsel agree that half a day would be sufficient for this?

MR GYORFFY:   Yes, your Honour, I would put that estimate on it.  I think it is a very confined point.  There are really two points that I would seek to take.  There are five grounds there, but they really fall into two categories:  the first category is the complying with the Pemble point, which is the point that your Honour has been raising, and the second category is the rightness or wrongness of the judge’s charge because it is our submission that the judge’s charge is correct and it is correct because – I will just state it very briefly – that what your Honour is saying in terms of “might believe” is the statement, the broad statement of intention, however it is informed by the content of section 36 and when it is actually translated into a trial situation the way it has to be said to the jury is on the basis of those factors within section 36 that are relevant and that is how the judge complies with the Alford v Magee requirements.

In this case that means that the judge is required to say “believed she was not consenting” or “might believe she was not consenting”. There is a continuum of belief that she is consenting at one end, belief that she is not consenting at the other end and then the possibility that she might not be consenting in the middle. So far as we submit that section 38 is concerned, either “might not be consenting” or “was not consenting” is sufficient for conviction. So if I might be able to put that ground in as a ground, it would probably reduce it to two grounds, your Honour.

HEYDON J:   Yes.  When you file your notice of appeal you will be at liberty to depart from the draft notice of appeal to accommodate what you have been saying to us.

MR GYORFFY:   Thank you, your Honour.

HEYDON J:   Mr Boyce, is your client at liberty or in gaol?

MR BOYCE:   Yes, he is here.

HEYDON J:   Very well.  So there is no occasion for special expedition of the matter?

MR BOYCE:   Not from ‑ ‑ ‑

HEYDON J:   I mean, it is obviously desirable ‑ ‑ ‑

MR BOYCE:   It would be desirable ‑ ‑ ‑

HEYDON J:   ‑ ‑ ‑ from his point of view that the matter be sorted out, but the Court has various other pressures on it.

MR GYORFFY:   I think there are about 11 cases that have already looked at this issue and applied it, and there are a number of cases that are going to be affected, so from the point of view of the Crown we have been trying to bring this on as quickly as possible to deal with those issues.

HEYDON J:   Yes, thank you, Mr Gyorffy.  Yes, Mr Boyce, did you have some application?

MR BOYCE:   Your Honour has indicated that there will be a grant of special leave and my learned friend has indicated that he wishes to press the argument concerning Pemble.  Your Honours will see in the submissions that, at least in our respectful submission, at paragraph 4.2 under the question of costs what the applicant is really trying to do is reopen Pemble and have it clarified – sorry, 4.2 of our submissions at application book 154 we make the submission that if the applicant is granted special leave and pursues his Pemble point, with respect, it is submitted that the respondent should not have to fund his part in the applicant’s challenge to its correctness.

HEYDON J:   What you have just said will be noted and will be taken into account by the Full Court which actually hears the appeal.  I think if you wish to raise the matter again before the Full Court, feel at liberty to do so.

MR BOYCE:   We do make the application in respect of this hearing.

HEYDON J:   Well, we reject that application. 

Please adjourn the Court to 2.15 pm on Tuesday next, 4 October, in Canberra.

AT 1.13 PM THE MATTER WAS CONCLUDED