High Court sets a precedent on the meaning of ‘belief’ in rape law
- Tomas Getachew appealed his rape conviction on the grounds that that the judge had failed to direct the jury properly on the issue of consent: specifically, that he might have believed she was in fact consenting. If he knew she wasn’t then he was guilty; if he ‘gave no thought’ to whether she was consenting he was guilty; but if he believed she was consenting, he had a defence. He argued that the judge ought to have instructed the jury on this difference (even though his original defence was that there was no penetration in the first place).
2.The Court of Appeal allowed Tomas Getachew’s appeal and quashed the conviction.
3.The High Court reversed the decision of the Court of Appeal, finding that the judge had no requirement to direct the jury on this issue of consent and belief. The Court reinstated the conviction on the grounds of the meaning of the rape legislation (not on the grounds of Getachew’s belief at the time of the rape).
4.The High Court foundthat the phrase “reasonably believe”excluded the defendant’s mere ‘belief’. The Court interpreted the Crimes Act to mean that any defendant who says they believed the victim “may have been” consenting, or even believed the victim “probably” was consenting, would still be guilty. A defendant can only argue ‘belief’ as a defence if they believed they knew the victim was consenting, and they can show reasonable grounds for this belief.
5.The High Court’s interpretation narrowed the meaning of the legislation.
6.The Victorian Crimes Act was amended in order to ‘toughen up’ the rape laws. The wording of the changes allows the defendant to argue that they believed the victim was consenting.
7.The legislative change largely confirmed the High Court precedent.