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?

When the possibility of consent is (or is not) enough

Since 1991, s36 of the Crimes Act has contained an expanded statutory definition of the circumstances in which a person is deemed not to consent to sexual intercourse. Many of these are common sense propositions and indeed, I've wondered from time to time why it is that Parliament needs to tell us, for example, that a person who submits to intercourse under duress, is taken not to consent. But it is there and courts need to make sense of it.

In Getachew v R [2011] VSCA 164, the court curtailed the operation of s36, by effectively confining its operation to the factual question of whether a person is consenting, and not the allied question of whether the accused was aware the complainant was not or might not be consenting.

"Irrationally generous"

Yesterday the High Court handed down its decision in Stubley v Western Australia [2011] HCA 7, which concerns the admissibility of tendency evidence (or, as WA calls it, propensity evidence) or relationship evidence in a sexual offence proceeding. The case, in broad terms, is fairly straightforward. Several years after ceasing treatment, 2 women alleged that their psychiatrist, Stubley, had sexual intercourse with them during therapy sessions. They claimed that they either actively communicated their lack of consent, or that their acquiescence was not consent, but was improperly induced by threats and other misconduct. The prosecution sought to lead evidence from 3 other women who also alleged that Stubley had sexual intercourse with them in the context of a professional-client relationship. The defence case did not dispute the allegations of sexual intercourse, but relied on consent or belief in consent. The defence denied that consent was obtained by threats.

Setting the law back to the 1800s

First off, I want to congratulate the Human Rights Law Resource Centre for its excellent coverage of the Momcilovic appeal over twitter. In the coming days, I'll sit down with the transcript and give my thoughts on which way the wind was blowing at the hearing. In the meantime, I recommend you all get on Twitter, do a search for #momcilovic, and read the HRLRC's summaries. It's a credit to them that they managed to compress the gist of several party's arguments into the Twitter character limit.

I now want to turn to a brief article I saw in the MX on the way home, which is reproduced in most of the Herald Sun's companion papers. The article warns that "UNDERAGE girls in NSW could be charged with being an accessory to their own rape due to a legal loophole" (link here)

The article goes on to state: