Full Court Minute Books

Case M139/2011

The Queen v. Getachew

Case No.


Case Information

Lower Court Judgment

2/06/2011 Supreme Court of Victoria (Court of Appeal)

(Buchanan & Bongiorno JJA & Lasry AJA)

[2011] VSCA 164


Criminal law — Rape — Mens rea — Trial judge directed jury that mens rea established if accused ("respondent") aware that complainant might be asleep — Respondent led no evidence of his mental state at trial — Court of Appeal held direction precluded consideration by jury of possibility that respondent believed complainant was consenting to anal intercourse while asleep — Whether sufficient evidence before jury to require direction that respondent may have believed complainant consenting while asleep — Whether incumbent upon respondent's counsel to raise respondent's awareness of complainant's lack of consent — Appropriate test to be applied in determining sufficiency of evidence for purpose of giving direction — Whether respondent able to hold belief that complainant gave consent where jury found beyond reasonable doubt that respondent knew or believed complainant asleep at time of penetration — Crimes Act 1958 (Vic), ss 36, 37, 37AA, 37AAA, 38 — Pemble v The Queen (1971) 124 CLR 107.

Short Particulars


29/09/2011 Hearing (SLA, Adelaide)

13/10/2011 Notice of appeal

27/10/2011 Written submissions (Appellant)

27/10/2011 Chronology (Appellant)

17/11/2011 Written submissions (Respondent)

24/11/2011 Reply

08/03/2012 Hearing (Full Court, Canberra)

28/03/2012 Judgment  (Judgment summary)