Not giving evidence!
1. Getachew was convicted of rape in the County Court of Victoria.
2. Getachew’s defence relied on submissions by counsel that the evidence did not prove beyond reasonable doubt that the sexual act took place.
3. The Court of Appeal upheld Getachew’s appeal, with a majority deciding that the County Court judge had made a mistake by not instructing the jury to consider whether Getachew might have believed that the complainant was consenting to the sexual act.
4. The High Court decided that, as Getachew had not introduced any evidence to contest the complainant’s evidence that she was not consenting, or that he believed she was consenting, there was no reason for the trial judge to direct the jury about the issue of consent. The trial judge had therefore not made any error in directing the jury, and the jury’s verdict should therefore stand.
5. This case suggests that evidence must be presented by the accused to prove that they believed that the complainant was consenting.