The Queen v Getachew [2012] HCA 10

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, CRENNAN, KIEFEL AND BELL JJ

THE QUEEN APPELLANT

AND

TOMAS GETACHEW RESPONDENT

The Queen v Getachew

[2012] HCA 10

28 March 2012

M139/2011

ORDER

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.

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".

Crimes Act 1958 (Vic), ss 36-38.

1. 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. 2. 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. 3. 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 went to sleep. The complainant gave evidence that she awoke with the accused lying behind her, her clothing disarranged and the accused "thrusting his penis into [her] anus". 4. The accused gave no evidence at his trial. His case at trial was that he had not penetrated the complainant. The trial judge told the jury that the element of the offence now at issue – "while being aware that [the complainant] was not consenting or might not be consenting" –