R v Getachew

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.