Wednesday, October 5, 2011

Special leave report: R v Getachew

As Jeremy Gans mentioned in the comments to the previous post, the High Court has granted special leave to appeal Getachew v R. The transcript is available here. It is fascinating reading, starting with this exchange immediately after counsel make their appearances:
HEYDON J: Mr Boyce, I think it might be convenient if we hear from you first.
MR BOYCE: Thank you. Your Honours, it is submitted in this case that special leave should be refused because the applicant’s grounds have no point of principle worthy of a grant of special leave.
HEYDON J: I agree with that, but it does seem an extraordinary judgment by the Court of Appeal.
Chris Boyce did his best to defend the decision, stating that it was a natural extension of the principle from R v Worsnop and consistent with authority in Victoria, but Heydon and Bell JJ weren't convinced. Bell J also made some remarks that could cast doubt on the reasoning that underlie Worsnop, as she questioned whether an odd-on belief that a person is awake and hence consenting could rebut a mens rea of "aware that the person is not consenting or might not be consenting" (emphasis added). She did, however, qualify her remarks and indicated that they were not concerned with the correctness of Worsnop. Ultimately, the High Court granted special leave for the DPP to appeal the decision, without calling on the DPP to make any submissions.

It looks like the Crown will be running two grounds on the appeal. The first concerned the need for s37AA and s37AAA directions at all in the circumstances, when the accused's defence is that he wasn't there, and hence consent or awareness of consent were not real issues. This invites the court to further explain Pemble and the opening words to s37AAA on when the direction is necessary. The second argument is that the judge's original direction was entirely correct. I've written about my views on the second point previously, here.

In the circumstances, I'd think that the Court of Appeal would need to hold any further appeals that raise this issue in reserve until the High Court hands down its judgment, as otherwise there could be a long string of cases ordering retrials in circumstances where the High Court later decides that the reasoning underlying the decisions is erroneous. More difficult is to know what happens to Roberts and Neal, since they relate to the same point, but weren't the subject of the special leave application. The retrial in Neal can probably stand on its own feet, but Roberts is far more similar to Getachew and, if Getachew is overturned, that should logically take the retrial order in Roberts with it. Maybe the Crown will seek the join the matters later in some way?

4 comments:

  1. The issue seems to be getting some media attention now.

    http://www.theage.com.au/victoria/sextrial-laws-confusing-judges-and-jurors-20111030-1mqfe.html

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  2. Thanks for spotting that article. It's a good summary of the issues, and good to see Justice Maxwell's call for reform in this area being reported, and reported fairly.

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  3. This will complicate the respondent's case at the appeal early next month: http://www.heraldsun.com.au/news/more-news/rape-suspect-on-the-run/story-fn7x8me2-1226274787502

    It may also complicate things for the Court of Appeal, if the High Court holds that the court got the appeal decision wrong. And it also raises an interesting question about how bail should be handled when the entire basis of a series of successful appeals from a serious crime are brought into question during a special leave hearing.

    Also, see here for a failed attempt to expand the Getachew hearing to expressly revisit the correctness of Worsnop: http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2012/14.html. Still, the case is at least being expedited...

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  4. The expedition of Wilson seems like a good idea. As the High Court says, there would just be too much factual material to master to hold the leave hearing at the same time as the Getachew appeal. Though it is important to note that the Crown submissions in Getachew and the defence response do invite the court to revisit Worsnop, on the basis that Worsnop and the authorities relied upon involve a misreading of Morgan and the text of the Crimes Act. The issue will be whether the proviso / Pemble ground succeeds and the court concludes that no directions on consent where necessary, so even if the directions were wrong, that caused no miscarriage of justice.

    See here for the appeal submissions - http://www.hcourt.gov.au/cases/case-m139/2011

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