The complainant spent the night of 29 June 2007 drinking in Melbourne with three others (of whom one was the accused). In the early hours of the next morning, the group went to a suburban house, where the complainant and the accused lay on a mattress on the floor, and the other two shared a bed in the same room. The complainant gave evidence that the accused touched her twice and that she asked him to stop both times. Having fallen asleep, the complainant later awoke to find the accused lying behind her, her clothing disarranged and the accused penetrating her.
The accused was charged and tried in the County Court of Victoria. The accused's defence was that he had not penetrated the complainant. He did not give evidence in the trial, and there was therefore no direct evidence as to his mental state.
Section 38 of the Crimes Act 1958 (Vic) provides that a person commits rape if he or she intentionally sexually penetrates another person without that person’s consent while “being aware that the person is not consenting or might not be consenting”.
At trial, the trial judge directed the jury that the accused had not raised as an issue that the accused thought or believed that the complainant was consenting to penetration. The trial judge also directed the jury that they could be satisfied that the accused was aware that the complainant was not or might not be consenting if the accused was aware that the complainant was or might be asleep at the time of penetration. The accused was convicted and subsequently sentenced to four years and nine months’ imprisonment.
The accused successfully appealed, the Victorian Court of Appeal holding that the trial judge should have directed the jury not to convict the accused unless persuaded beyond reasonable doubt that the prosecution had excluded the possibility that the accused may have believed that the complainant was consenting, even though he knew that she was or might be asleep. In doing so, the Court of Appeal found that because the woman had not protested while her clothing was disarranged, it would have been open to the jury to conclude “that it was a reasonable possibility that the [accused] believed that she had finally consented” to the sexual act.
In R v Getachew  HCA 10 the High Court allowed the prosecution’s appeal, with the result that the accused’s original conviction stands.
The High Court held that the Court of Appeal’s reasoning – that the accused may have believed that the complainant had finally consented because she had not protested when her clothing was disarranged – depended upon it being open on the evidence to conclude that the accused may have believed that the complainant was woken by her clothes being removed (or was sufficiently alert to realise what was happening when this occurred). Only if the accused believed that she was aware when these things were done could he have thought that she was consenting.
However, the complainant’s evidence was that she was asleep until awoken by the accused’s penetrating her. Her evidence was that she was asleep while the accused disarranged her clothing, and that she only awoke when he “thrust into” her. The accused did not assert that he thought he had woken the complainant, whether by his pulling at her clothing or otherwise. In the absence of any evidence from the accused to this effect and in the absence of the matter having been put to the complainant in cross-examination, there was no basis on which the jury, or the Court of Appeal, could have concluded that the complainant was awake when her clothing was disarranged. The Court of Appeal was therefore wrong to conclude that there was evidence that raised any question about the accused’s belief in consent.
It was only if it had been asserted, or there was some evidence led at the trial, to the effect that the accused believed that the complainant consented to the penetration that any further question about the accused’s belief as to consent arise. Absent such an assertion or such evidence, demonstrating that the accused knew that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting.