The Queen v Getachew [2012] HCA 10

The Queen v Getachew [2012] HCA 10

In the absence of evidence or assertion that the accused believed the complainant was consenting, the trial judge was not required to direct the jury to consider the accused's belief in consent. Establishing that the complainant was asleep and that the accused was aware or might have been aware of this satisfied the fault element in s 38(2) of the Crimes Act 1958 (Vic). The appeal was allowed and the orders of the Court of Appeal were set aside because no miscarriage of justice occurred and the trial judge's directions were sufficient under the statutory provisions.

Parties
Appellant: The Queen; Respondent: Tomas Getachew
Jurisdiction
Australia
Judgment Date
28 March 2012
Procedural Posture
Criminal Appeal / Appeal to the High Court of Australia
Outcome
appeal allowed
Legal Topics
Rape, Mens Rea, Jury Directions, Consent
Criminal Law Rape Mens Rea Jury Directions Consent

Case Brief

Summary, issues, holding and outcome

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Parties

The Queen

Appellant

Tomas Getachew

Respondent

Procedural Posture

Criminal Appeal / Appeal to the High Court of Australia

Legal Issues

  1. 1 Whether the trial judge erred by not directing the jury to consider the accused's belief in consent absent evidence or assertion of such belief
  2. 2 Whether the directions of the trial judge properly reflected the requirements of the Crimes Act 1958 (Vic), ss 36-38
  3. 3 Whether a miscarriage of justice occurred

Ratio Decidendi

In the absence of evidence or assertion that the accused believed the complainant was consenting, the trial judge was not required to direct the jury to consider the accused's belief in consent. Establishing that the complainant was asleep and that the accused was aware or might have been aware of this satisfied the fault element in s 38(2) of the Crimes Act 1958 (Vic). The appeal was allowed and the orders of the Court of Appeal were set aside because no miscarriage of justice occurred and the trial judge's directions were sufficient under the statutory provisions.

Court Disposition

appeal allowed

Orders

  • Orders 2, 3 and 4 of the Court of Appeal of the Supreme Court of Victoria made on 2 June 2011 set aside.
  • Order that the appeal to the Court of Appeal is dismissed.