R v Getachew

HIGH COURT OF AUSTRALIAFRENCH CJ,HAYNE, CRENNAN, KIEFEL AND BELL JJTHE QUEEN  APPELLANTANDTOMAS GETACHEW  RESPONDENTThe Queen v Getachew[2012] HCA 1028 March 2012M139/2011ORDER1.Appeal allowed.2.Set aside orders 2, 3 and 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 2 June 2011 and, in their place, order that the appeal to that Court be dismissed.On appeal from the Supreme Court of VictoriaRepresentationT Gyorffy SC and E H Ruddle for the appellant (instructed by Solicitor for Public Prosecutions (Vic))C B Boyce with L C Carter for the respondent (instructed by Leanne Warren & Associates)Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSThe Queen v GetachewCriminal 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...