High Court grants special leave to appeal in R v Getachew

The High Court last week granted the crown special leave to appeal in R v Getachew [2011] HCATrans 275.

In a decision described as "extraordinary" by Heydon J, the Victorian Court of Appeal (Getachew v The Queen [2011] VSCA) had earlier this year allowed the appeal of a Melbourne man convicted of rape, holding that the trial judge misdirected the jury and precluded the possibility of a conclusion that the accused might think that the complainant was asleep, but at the same time consider it possible that the complainant was awake.  

The trial judge had directed jury that the element of a lack of consent would be satisfied if

... the prosecution can prove beyond reasonable doubt that the applicant was aware that the complainant was ... asleep ... or any other basis arising from the evidence, that the accused was aware the complainant was or might not be consenting or freely agreeing to the sexual penetration.

Section 36 of the Victorian Crimes Act 1958 describes the circumstance of a lack of consent as including, inter alia,

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

In this instance, the complainant had been asleep. The Court of Appeal had held that the trial judge's directions conflated the accused's mens rea with the complainant's lack of consent. That is, the trial judge's directions precluded a conclusion by the jury that "the applicant thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that the applicant believed that she had finally consented", and at paragraph 17

The legislature contemplated... the possibility that the prosecution might fail to prove the mental element of the offence of rape even though a belief and consent on the part of the accused was unreasonable because the accused was aware that the complainant might be asleep.

The High Court allowed special leave with Bell J somewhat unconvinced at the possibility of a person believing someone might be asleep but also entertaining the possibility that they are awake.

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