The Queen v Getachew

The Queen v Getachew - [2012] HCA 10 - HCA 2012 case summary — Zoe

[9]

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

[42]

For present purposes, there are two critical observations to make about s 37AA. First, the directions about awareness for which the section provided were to be given "if evidence is led or an assertion is made" at the trial that the accused believed that the complainant was consenting. Second, s 37AA was expressed to be "[f]or the purposes of section 37". Thus, s 37(1) required the giving of the directions s 37AA set out "[i]f relevant to the facts in issue in a proceeding" - that is, if evidence was led or an assertion made of the identified kind - and s 37(2) prohibited the giving of a direction of the kind referred to in s 37AA "if the direction is not relevant to the facts in issue in the proceeding" - that is, the criterion for engaging s 37AA was not met.
It follows that an accused's belief in consent is relevant at a trial for rape only "if evidence is led or an assertion is made" that the accused did believe that the complainant was consenting to the sexual act. The reference to "an assertion" being made is important. It would encompass the case in which an accused's out of court statement (commonly in a record of interview with police) is tendered in evidence and contains an assertion that the accused believed that the complainant was consenting. And of course there are other ways in which the issue may be enlivened at trial, whether by evidence or by assertion.
In considering any question about an accused's asserted belief in consent it is necessary to keep at the forefront of consideration that s 38(2) prescribed the relevant mental element for the offence of rape as awareness that the complainant was not or might not be consenting or, after the 2007 Act, not giving any thought to whether the complainant was not or might not be consenting. Belief in consent is not the controlling concept. It is relevant only so far as it sheds light on the accused's awareness that the complainant was not or might not be consenting.
If evidence is led or an assertion is made that the accused believed that the complainant was consenting, the directions required by s 37AA would oblige the jury to consider whether the belief was reasonable (and any evidence of that belief). But neither s 37AA nor any other relevant provision of the Crimes Act provided that an accused must be taken to be aware that the complainant might not be consenting unless the accused reasonably believed that the complainant was consenting. Rather, consideration of whether an accused's belief in consent was reasonable would bear upon whether the accused in fact held the belief[25].
It by no means follows from this last observation, however, that the relevant provisions of the Crimes Act are to be read as requiring the judge (in a case where no evidence has been led and no assertion made that the accused believed the complainant was consenting) to direct the jury that the prosecution must prove beyond reasonable doubt that the accused had no belief in consent. Rather, when s 37AA is read in the light of s 37, it is apparent that a jury is to be given directions about an accused's belief in consent (and the bearing that this belief may have on awareness of the lack of consent) only if the possibility that the accused held such a belief has been raised at the trial (whether because evidence was led that the accused had such a belief or an assertion was made that the accused had such a belief).

[43]

Reference to an accused holding the belief that the complainant was consenting invites close attention to what was the accused's state of mind. It was said[26] in the Explanatory Memorandum accompanying the Bill for the 2007 Act that "belief in consent and awareness of the possibility of an absence of consent are not mutually exclusive". So much may be accepted if "belief in consent" is treated as encompassing a state of mind where the accused accepts that it is possible that the complainant might not be consenting. Whether such a state of mind is properly described as a "belief in consent" need not be explored. On the face of it, evidence of a state of mind that did not exclude the possibility that the complainant might not be consenting appears not to engage at all with, let alone negate, the central statutory requirement that the accused was aware that the complainant was not or might not be consenting.
For present purposes, it is enough to notice that, if an accused asserted, or gave evidence at trial, that he or she thought or "believed" the complainant was consenting, the prosecution may yet demonstrate to the requisite standard either that the accused was aware that the complainant might not be consenting or that the asserted belief was not held. It is to be recalled that, since the 2007 Act, the fault element of rape has been identified as the accused being aware that the complainant was not or might not be consenting or the accused not giving any thought to whether the complainant was not or might not be consenting. The reference to an accused's awareness that the complainant might not be consenting is, of course, important. An accused's belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting.
One further and important observation must be made about s 37AA. Section 37AA(b)(i) dealt with the case of a proceeding in which the jury find that a circumstance specified in s 36 (such as the complainant being asleep) existed in relation to the complainant. Section 37AA required the judge to direct the jury to consider whether the accused's asserted belief that the complainant was consenting was reasonable having regard to "whether the accused was aware that that circumstance existed in relation to the complainant"[27], "whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps"[28] and "any other relevant matters"[29]. But neither s 37AA nor any other relevant provision of the Crimes Act required that an accused who asserted a belief in consent nonetheless must be taken to have been aware that the complainant was not or might not be consenting if the accused was aware that the relevant s 36 circumstance - here, the complainant being asleep - did exist or might exist. If evidence was led or an assertion was made that the accused believed that the complainant was consenting, demonstration that the accused knew that the complainant was or might be asleep did not require the conclusion that the accused was aware that the complainant was not or might not be consenting. In such a case, s 37AA required the judge to direct the jury to take account of the asserted belief of the accused in deciding whether the accused was aware that the complainant was not or might not be consenting.

[44]

The directions to be given to a jury on a trial for rape are to be moulded in the light of the proper construction of the relevant provisions of the Crimes Act and, no less importantly, having regard to the real issues in the trial. As this Court has repeatedly pointed out[30], the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues.
In a case where s 37AA is engaged, the directions required by that section must be given. In a case where s 37AA is not engaged, those directions must not be given.
The Court of Appeal found[31] that, because the complainant had not protested while her clothing was disarranged, it would have been open to the jury to conclude "that it was a reasonable possibility that the [accused] believed that she had finally consented" to the sexual act. But the accused had never sought to make such a case. At no time did he assert that he thought or believed that the complainant was consenting. He did not submit, at his trial, on appeal to the Court of Appeal or in this Court, that a s 37AA direction should have been given.
The Court of Appeal's reasoning - that the accused may have believed that the complainant had finally consented because she had not protested when her clothing was disarranged - depended upon it being open on the evidence to conclude that the accused may have believed that the complainant was woken by her clothes being removed (or was sufficiently alert to realise what was happening when this occurred). Only if the accused believed that she was aware when these things were done could he have thought that she was consenting.
But the complainant's evidence was that she was asleep until awoken by the accused's penetrating her. Her evidence was that she was asleep while the accused disarranged her clothing, and that she only awoke when he "thrust[ed] into" her. It was not suggested to her that she had been woken by her underpants being pulled down or by her clothing otherwise being disarranged. And the accused did not assert that he thought he had woken the complainant, whether by his pulling at her clothing or otherwise. In the absence of any evidence from the accused to this effect and in the absence of the matter having been put to the complainant in cross‑examination, there was no basis on which the jury, or the Court of Appeal, could have concluded that the complainant was awake when her clothing was disarranged. The Court of Appeal was therefore wrong to conclude that the evidence to which it pointed was evidence that raised any question about the accused's belief in consent.
In the present case the complainant did not consent to the sexual act if, as she asserted, she was asleep when penetrated. Because there was no evidence led at trial and no assertion made that the accused believed that the complainant was consenting, demonstration beyond reasonable doubt (1) that the complainant was asleep at the time of penetration and (2) that the accused was aware that the complainant was then asleep or might then have been asleep would, without more, demonstrate in this case that the accused was aware that the complainant was not or might not be consenting to the sexual act.
Only if it had been asserted or evidence had been led at the trial that the accused believed that the complainant consented to the penetration would any further question about the accused's belief as to consent arise. For absent such an assertion or such evidence, demonstration that the accused knew that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting. No other possibility was open. That is, absent an assertion or evidence that the accused believed that the complainant had in fact consented to the act of penetration, there was no other possibility - that the accused may have positively believed that the complainant was in fact consenting - open and raised for consideration by the evidence. The jury were not required to exclude a possibility of that kind before returning a verdict of guilt.
There was therefore no occasion to give a direction of the kind which the Court of Appeal held should have been given about the accused's state of mind.
The appeal to this Court should be allowed. Orders 2, 3 and 4 of the orders of the Court of Appeal made on 2 June 2011 should be set aside. In their place there should be an order that the appeal to the Court of Appeal is dismissed.

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