Special leave watch: R v Wilson

In a decision quietly released on Tuesday, the High Court refused special leave in Wilson, the case which the Victorian DPP had tried to have heard concurrently with Getachew.

The Court stated:

5. The factual circumstances of this matter differ from those considered in Getachew. In Getachew, the complainant was asleep at the time of penetration, which bore upon the question of consent. By contrast, in this case, there are questions about whether one or more of the complainants was mistaken about the sexual nature of the act of which complaint was made or mistakenly believed that any of the acts of which complaint was made was "for medical or hygienic purposes".
6. Contrary to the submissions of the applicant, we are not persuaded that the directions given by the trial judge about the questions of mistaken belief, the accused's knowledge of the existence of such a mistake or mistakes and the accused's state of mind about consent accorded with what this Court said in Getachew about the proper construction and operation of s 37AA of the Crimes Act. It follows that we are not persuaded that the applicant has sufficient prospects of disturbing the actual orders made by the Court of Appeal in this matter to warrant a grant of special leave. It would therefore not be in the interests of justice in this particular case, or more generally, that there be a grant of special leave to appeal.

The result is unsurprising, as the issue about the operation of s37AA and its interaction with s36 was resolved in Getachew. The most the Crown could really have hoped for would be a technical argument that some of those statements in Getachew were strictly obiter, as the case was resolved on the issue that the directions were unnecessary in light of the failure of the defence to raise an issue of belief in consent. However, that was not enough to carry the day.