High Court of Australia

The Queen v Getachew [2012] HCA 10

248 CLR 22; 86 ALJR 397; 286 ALR 196

28 Mar 2012

Case Number: M139/2011

Before

French CJ, Hayne, Crennan, Kiefel, Bell JJ

Catchwords

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.

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