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


French CJ, Hayne, Crennan, Kiefel, Bell JJ


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.


PDF MD5: 9fa15099df8852186ebb5b50e8de3456
RTF MD5: b4010e48b69898380e5663121a5c442c