The Queen v Getachew

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Hayne,French CJ,Crennan,Kiefel
• Judgment Date: 28 March 2012
• Neutral Citation: [2012] HCA 10,2012-0328 HCA C
• Docket Number: M139/2011
• Date: 28 March 2012

The Queen

Appellant

and

Tomas Getachew

Respondent

[2012] HCA 10

French CJ, Hayne, Crennan, Kiefel and Bell JJ

M139/2011

HIGH COURT OF AUSTRALIA

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.

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)

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.

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’—

‘will be satisfied if … [the accused] was aware that [the complainant] was either asleep, or unconscious, or so affected by alcohol as to be incapable of freely agreeing, or aware that she might be in one of these states. This element will also be satisfied if the prosecution can prove, on any other basis arising from the evidence, that the accused was aware that the complainant was not or might not be consenting or freely agreeing to the sexual penetration.’

5 There was no dispute in this Court that the trial judge had been right to tell the jury, as he did, that the accused had not raised, as an issue at the trial, that he had thought or believed that the complainant was consenting to penetration.

6 The accused was convicted. He sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria against his conviction. The determinative issue in both the appeal to the Court of Appeal and the prosecution's appeal to this Court is: was any question of law wrongly decided, or a miscarriage of justice on any other ground occasioned 1, because the trial judge did not tell the jury that the prosecution had to prove, beyond reasonable doubt, that the accused held no belief (even an unreasonable belief) that the complainant consented to penetration?

7 The Court of Appeal (Buchanan and Bongiorno JJA and Lasry AJA) accepted 2 the accused's submission that the trial judge's directions to the jury had ‘conflated the complainant's lack of consent with mens rea’ 3. More particularly, the Court of Appeal accepted 4 that the jury should have been directed that ‘the prosecution might fail to prove the mental element of the offence of rape even though a belief [in the] consent [of the complainant] on the part of the accused was unreasonable because the accused was aware that the complainant might be asleep’.

8 All members of the Court of Appeal having decided that the trial judge should have directed the jury to consider the possibility just described, a majority of the Court (Buchanan and Bongiorno JJA) concluded 5 that leave to appeal should be granted, the appeal allowed, the conviction set aside and a new trial had. Lasry AJA would have dismissed 6 the appeal (on the footing that no substantial miscarriage of justice had actually occurred) because ‘a correct direction from the trial judge would have made no difference to the verdict’.

9 By special leave, the prosecution now appeals to this Court.

10 Whether there was a misdirection of the kind found by the Court of Appeal turns upon two considerations. First, what is the proper construction of the relevant general provisions relating to sexual offences set out in subdiv (8) of Div 1 of Pt I (ss 35–37B) of the Crimes Act 1958 (Vic) (‘the Crimes Act’) in their application to s 38 of the Crimes Act, which defines the offence of rape? Second, what were the real issues 7 at the trial of the accused?

Rape — a statutory offence in Victoria

11 Since the enactment of the Crimes (Rape) Act 1991 (Vic) (‘the 1991 Act’), the elements of the offence of rape — including that most important of elements, the absence of consent — have been statutorily defined. Consideration of any question about the law of rape in Victoria must8 begin and end in consideration of the relevant statutory provisions. Reference to decisions about the common law of rape (whether those decisions were made before or after the

enactment of the 1991 Act) is useful only if such reference assists in construing the applicable statutory provisions.

12 In order to identify the issues of statutory construction that must be considered, it is necessary to say something about the 1991 Act. The 1991 Act was enacted to give effect 9 to recommendations made by the Victorian Law Reform Commission in its report Rape: Reform of Law and Procedure10. Contrary to a central submission of the accused in this Court, the 1991 Act did not ‘codify’ the common law of rape. And to the extent to which the Court of Appeal held in Worsnop v The Queen11 that the 1991 Act should be so understood, Worsnop should not be followed.

13 As the Law Reform Commission report recorded 12:

‘Although the Commission considered that “lack of consent” should be retained as an element of rape and indecent assault, the interim report acknowledged that there was confusion about what this concept entailed, and considerable concern about how it was being applied in specific cases. The report therefore proposed that “lack of consent” should be legislatively defined.’

And after further consultation 13, the Commission proposed 14 the enactment of provisions substantially the same as those enacted by the 1991 Act. It follows that, whatever may have been the (uncertain) state of the common law about lack of consent, the 1991 Act sought to prescribe the law that governed this question.

14 The 1991 Act did this by defining the offence of rape in a new s 38 located in subdiv (8A) and defining consent in a new s 36. Relevantly, the new s 38 defined rape as intentional penetration without the complainant's consent while being aware that the complainant is not consenting or might not be consenting. The definition of consent in the new s 36 was ‘free agreement’, but particular circumstances were identified as negativing ‘free agreement’, including (of present relevance) the complainant being asleep. Thus, the new s 36 provided:

‘For the purposes of Subdivisions (8A) to (8D) “consent” means free agreement. Circumstances in which a person does not freely agree to an act include the following:

• (a) the person submits because of force or the fear of force to that person or someone else;

• (b) the person submits because of the fear of harm of any type to that person or someone else;

• (c) the person submits because she or he is unlawfully detained;

• (d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;

• (e) the person is incapable of understanding the sexual nature of the act;

• (f) the person is mistaken about the sexual nature of the act or the identity of the person;

• (g) the person mistakenly believes that the act is for medical or hygienic purposes.’

15 The 1991 Act also made provision (in a new s 37) for some directions that were to be given to the jury about consent:

‘In a relevant case the judge must direct the jury that —

• (a) the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement;

• (b) a person is not to be regarded as having freely agreed to a sexual act just because —

  • (i) she or he did not protest or physically resist; or

  • (ii)...