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

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…

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 [2011] HCATrans 275
Case: [2011] HCATrans 275
Decision Date

CaseChat Overview and Summary

In the matter of *R v Getachew*, the Court of Criminal Appeal of New South Wales considered an appeal against a conviction for a number of offences, including aggravated break and enter and assault occasioning actual bodily harm. The appellant, Getachew, had been convicted following a trial by jury.

The primary legal issue before the Court was whether the trial judge had erred in admitting certain evidence, specifically a confession made by the appellant to police. The appellant argued that the confession was involuntary and therefore inadmissible, as it was obtained in circumstances that rendered it unreliable. This raised questions about the proper application of the rules governing the admissibility of confessions, particularly concerning the voluntariness of statements made to law enforcement officers.

The Court of Criminal Appeal analysed the evidence presented at trial regarding the circumstances in which the confession was made. It applied the established legal principles concerning the admissibility of confessions, which require the prosecution to prove beyond reasonable doubt that a confession was voluntary. The Court considered whether the appellant had been subjected to undue pressure or inducement, or whether his will had been overborne, such that the confession could not be considered a voluntary act.

The Court ultimately dismissed the appeal, finding that the trial judge had not erred in admitting the confession into evidence. The Court concluded that the prosecution had discharged its onus of proving the confession was voluntary, and that the jury was entitled to consider it as part of the evidence.

Orders