R v Getachew - The High Court brings a little clarity, and a little confusion

R v Getachew [2012] HCA 10 was handed down yesterday and, as expected, the appeal was allowed. The behaviour of the court on the appeal made this aspect of the decision clear from the outset. The real question was how far they would go. In a surprising turn of events, the court overturned the point of principle the Court of Appeal decided in Worsnop but preserved the point of principle decided in Getachew, and allowed the appeal on the narrow Pemble ground. This approach has raised as many questions as it answers.




The court emphasises early on the fundamental proposition that the exercise is one of statutory interpretation and that must start and end with the words of the statute. The court rejected the Court of Appeal's reliance on common law authorities to explain the meaning of the element "while aware that the complainant was not or might not be consenting". Section 38 does not codify the common law of rape, but sets out in statutory language the elements of the offence.

The core to understanding the decision is at paragraphs [26] - [28].

26. Reference to an accused holding the belief that the complainant was consenting invites close attention to what was the accused's state of mind. It was said in the Explanatory Memorandum accompanying the Bill for the 2007 Act that "belief in consent and awareness of the possibility of an absence of consent are not mutually exclusive". So much may be accepted if "belief in consent" is treated as encompassing a state of mind where the accused accepts that it is possible that the complainant might not be consenting. Whether such a state of mind is properly described as a "belief in consent" need not be explored. On the face of it, evidence of a state of mind that did not exclude the possibility that the complainant might not be consenting appears not to engage at all with, let alone negate, the central statutory requirement that the accused was aware that the complainant was not or might not be consenting.
27. For present purposes, it is enough to notice that, if an accused asserted, or gave evidence at trial, that he or she thought or "believed" the complainant was consenting, the prosecution may yet demonstrate to the requisite standard either that the accused was aware that the complainant might not be consenting or that the asserted belief was not held. It is to be recalled that, since the 2007 Act, the fault element of rape has been identified as the accused being aware that the complainant was not or might not be consenting or the accused not giving any thought to whether the complainant was not or might not be consenting. The reference to an accused's awareness that the complainant might not be consenting is, of course, important. An accused's belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting.
28. One further and important observation must be made about s 37AA. Section 37AA(b)(i) dealt with the case of a proceeding in which the jury find that a circumstance specified in s 36 (such as the complainant being asleep) existed in relation to the complainant. Section 37AA required the judge to direct the jury to consider whether the accused's asserted belief that the complainant was consenting was reasonable having regard to "whether the accused was aware that that circumstance existed in relation to the complainant", "whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps" and "any other relevant matters". But neither s 37AA nor any other relevant provision of the Crimes Act required that an accused who asserted a belief in consent nonetheless must be taken to have been aware that the complainant was not or might not be consenting if the accused was aware that the relevant s 36 circumstance – here, the complainant being asleep – did exist or might exist. If evidence was led or an assertion was made that the accused believed that the complainant was consenting, demonstration that the accused knew that the complainant was or might be asleep did not require the conclusion that the accused was aware that the complainant was not or might not be consenting. In such a case, s 37AA required the judge to direct the jury to take account of the asserted belief of the accused in deciding whether the accused was aware that the complainant was not or might not be consenting.

In this passage, the court dispenses with the fallacy that belief and awareness are synonymous, but preserves the bizarre proposition that a person can be aware that a s36 circumstance existed or might have existed and yet be acquitted on the basis of a lack of awareness of non-consent or possible non-consent. The silver lining is that the High Court also makes it clear that directions in accordance with s37AA can only be given where the precondition for the operation of the section is met, and that where that precondition is not met, the directions envisaged by the section must not be given. This leads the court to decide the appeal on the narrow, Pemble, ground. However, how they reach that conclusion will be a source of continued confusion. At paragraphs [34] - [35] they say:

In the present case the complainant did not consent to the sexual act if, as she asserted, she was asleep when penetrated. Because there was no evidence led at trial and no assertion made that the accused believed that the complainant was consenting, demonstration beyond reasonable doubt (1) that the complainant was asleep at the time of penetration and (2) that the accused was aware that the complainant was then asleep or might then have been asleep would, without more, demonstrate in this case that the accused was aware that the complainant was not or might not be consenting to the sexual act.
Only if it had been asserted or evidence had been led at the trial that the accused believed that the complainant consented to the penetration would any further question about the accused's belief as to consent arise. For absent such an assertion or such evidence, demonstration that the accused knew that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting. No other possibility was open. That is, absent an assertion or evidence that the accused believed that the complainant had in fact consented to the act of penetration, there was no other possibility – that the accused may have positively believed that the complainant was in fact consenting – open and raised for consideration by the evidence. The jury were not required to exclude a possibility of that kind before returning a verdict of guilt.

The only way these passages can be reconciled with paragraphs [26] - [28] is to say, as the Court of Appeal did in Neal, that due to the language of s37AA, Parliament has stated that where evidence is led or an assertion made regarding a belief in consent, then awareness of a s36 circumstance is relevant but not determinative. In the absence of such evidence or assertion, the operation of logic, common sense and s36 mean that in other cases, proof of awareness of a s36 circumstance is sufficient to prove awareness of non-consent.

This approach leaves the law in a unsatisfactory state. Trial judges and jurors are given no assistance here on how a belief in consent could co-exist with awareness of a s36 circumstance. The High Court also provides little or no guidance on the operation of the phrase "evidence is led or an assertion made". What is required to trigger s37AA? Is an argument from counsel sufficient? What if the argument is run that the primary defence is that the events never happened, but the defence assert that the Crown cannot prove awareness? And what if some weak evidence is led from the complainant that maybe, somehow, the defendant might have thought the complainant was consenting? Is that enough? Or does the High Court mean that s37AA is only triggered if the accused gives evidence of a belief, or counsel makes the assertion of belief on instructions? If that last approach is the correct one, then the ability of defence counsel to simultaneously run inconsistent defences is substantially reduced.

While I had hoped that Getachew would simplify the law in this area and prevent the need for remedial legislation, it now seems that further legislation will be necessary to clarify this area of the law. And I fear that such new legislation will restart this process of uncertainty.