The Queen v Getachew: Rethinking DPP v Morgan
| Published date | 01 April 2013 |
| Date | 01 April 2013 |
| DOI | 10.1350/jcla.2013.77.2.833 |
| Subject Matter | Article |
Rethinking DPP v Morgan
Kenneth J. Arenson*
Abstract
In The Queen v Getachew, a recent decision of the High Court of
Australia that was soon followed by the Victorian Court of Appeal, the
High Court correctly noted that there is a fine line between the mens reas
of belief and knowledge which turns upon the degree of conviction with
which a belief is held. In particular, the court emphasised that a belief in
the existence of a fact or circumstance that contemplates a real possibility
or perhaps a higher degree of doubt as to the existence of that fact or
circumstance is tantamount to knowledge or awareness that such fact or
circumstance may not exist. When applied to the principle enunciated in
DPP v Morgan, that type of belief would not be mutually exclusive with the
alternative mens reas that require the Crown to prove that the accused was
aware that the complainant was not or might not be consenting to the
penetration at issue. In Getachew, the High Court merely pointed out that
the mens reas of knowledge and belief, though similar in certain respects,
are separate and distinct mental states that were incorrectly and inexplic-
ably treated as though they were identical in Morgan and innumerable
decisions that have followed and relied upon Morgan since it was decided
by the House of Lords in 1976. In the aftermath of Getachew, therefore, the
principle that an accused can act with a mental state that is mutually
exclusive of the mens rea for rape remains intact. What has changed is that
it is knowledge, rather than a mere belief that the complainant is not or
might not be consenting, that is mutually exclusive of the requisite mens
rea for rape.
Keywords
Rape; Mens rea for rape at common law and statutory
offences of rape; Distinction between knowledge/awareness and
belief
The Crimes Amendment (Rape) Act 2007 (Vic) affected significant
changes to the law of rape in Victoria, most notably the inclusion of
what the High Court referred to as a new ‘fault element’1 of Victoria’s
statutory crime of rape,2 a revised version of s. 37 and the addition of ss
* Associate Professor, Deakin University School of Law; e-mail: ken.arenson@deakin.
edu.au.
I wish to thank my research assistant, Tess Blackie, for her excellent
contribution to this piece.
1 The Queen v Getachew [2012] HCA 10, (2012) 286 ALR 196 at [27] (French CJ,
Hayne, Crennan, Kiefel and Bell JJ). Section 38(2)(a)(i)–(ii) and (4)(a)(i)–(ii) of
the Crimes Act 1958 (Vic) provide that in order to be convicted under s. 38(2)(a)
and (4), the prosecution must prove that the accused was aware that the
complainant was not or might not have been consenting or, alternatively, that the
non-consensual sexual penetration occurred without the accused having given
‘any thought to whether the person [was] not consenting or might not be
consenting . . .’. The quoted fault element set out in subs. (ii) was added by virtue
of the Crimes Amendment (Rape) Act 2007 (Vic).
2 Section 38 of the Crimes Act 1958 (Vic) is the statutory version of rape in Victoria.
It must be read in conjunction with ss 35–37, which provide relevant definitions,
deeming provisions and rules governing jury instructions or the lack thereof in rape
prosecutions.
The Journal of Criminal Law (2013) 77 JCL 151–162
151
doi:10.1350/jcla.2013.77.2.833
The Journal of Criminal Law
37AA and 37AAA of the Crimes Act 1958 (Vic)3 which mandate that
juries receive various directions in rape prosecutions, and particularly so
when the accused alleges that he or she acted with an honest belief that
the complainant was consenting to the sexual penetration in question.4
Although these and other changes instituted by the 2007 Act have
engendered their fair share of criticism,5 for present purposes the Act is
merely intended to serve as a backdrop against which the High Court’s
decision in The Queen v Getachew6 will be viewed. It is the writer’s view
that the intent and impact of both the Act and Getachew are to erode the
effect the House of Lords’ decision in DPP v Morgan,7 a decision that,
until Getachew, had been reaffirmed time and again in a long line of
decisions of the Victorian Court of Appeal8 and other appellate courts.9
The longstanding precept enunciated in Morgan will be discussed
below.
DPP v Morgan
In DPP v Morgan,10 the accused and three others were convicted of
raping his wife. The accused had enticed the others to partake in the
crime by informing them, prior to the incident, that she was a bit ‘kinky’
and would likely struggle and protest as a means of becoming sexually
aroused.11 For the purposes of this article, the key issue raised on appeal
was whether the trial judge erred in directing the jury that if the accused
acted with an honest and reasonable belief that the complainant was
consenting, this would preclude the jury from finding that the accused
had acted with the requisite mens rea for the common law offence of
rape, thereby resulting in an acquittal. The House of Lords opined that
3 The Queen v Getachew [2012] HCA 10, (2012) 286 ALR 196 at [18], [20].
4 Crimes Act 1958 (Vic), s. 37AA.
5 See, e.g., K. J. Arenson, ‘Ignorance of the Law as a Defence to Rape: The
Destruction of a Maxim’ (2012) 76 JCL 336 (criticising the Victorian Court of
Appeal for eviscerating DPP v Morgan [1976] AC 182 by construing s. 37AA of the
Crimes Act 1958 (Vic) as leaving open the possibility of an acquittal despite the fact
that the accused acted with an awareness that the complainant’s consent was
lacking under the deeming provisions set out in s. 36 of the Crimes Act 1958 (Vic));
K. J. Arenson, ‘Rape in Victoria as a Crime of Absolute Liability: A Departure from
Both Precedent and Progressivism’ (2012) 76 JCL 389 (arguing that the principle
enunciated in Morgan was also eviscerated as a consequence of the Crimes
Amendment (Rape) Act 2007 (Vic) which, in many instances, effectively permits
Victoria’s statutory offence of rape to be prosecuted as one of absolute liability).
6 [2012] HCA 10, (2012) 286 ALR 196.
7 DPP v Morgan [1976] AC 182.
8 The Morgan principle was adopted by the Victorian Court of Appeal in R v Saragozza
[1984] VR 187 and reaffirmed by the court in a more recent series of decisions: R v
Zilm [2006] VSCA 72 (5 April 2006); Worsnop v The Queen [2010] VSCA 188 (28
July 2010); Roberts v The Queen [2011] VSCA 162 (2 June 2011); Neal v The Queen
[2011] VSCA 172 (15 June 2011); and Wilson v The Queen [2011] VSCA 328 (27
October 2011).
9 See, e.g., R v Satnam (1983) 78 Cr App 149; R v Kimber [1983] 1 WLR 1118
(extending the Morgan principle to charges of indecent assault); R v Brown (1975)
10 SASR 139.
10 DPP v Morgan [1976] AC 182.
11 Ibid. at 206.
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The Queen v Getachew: Rethinking DPP v Morgan
the requisite mens rea is an intention to have carnal knowledge12 of the
complainant without her consent13—meaning that the accused in-
tended to have carnal knowledge of the complainant without her con-
sent while aware that she was not or might not be consenting to the
sexual act.14 In cases such as this in which a common law or statutory
offence requires proof that the accused acted with a particular state of
mind, this mental state is commonly referred to as the mens rea element
of the offence which, like all other elements, must be proven beyond
reasonable doubt to the satisfaction of the fact-finder.15
In writing for the majority, Lord Hailsham explained that a genuine
belief that the complainant is consenting to carnal knowledge and the
aforementioned mens rea are mutually exclusive of one another.16 His
Lordship then opined that this is true regardless of whether or not the
putative belief in consent would have been entertained by a reasonable
person in the position of the accused.17 Lord Hailsham added, however,
that the reasonableness or lack thereof of the belief is not devoid of
relevance in rape prosecutions. To the contrary, the reasonableness of
the accused’s putative belief is a circumstance to be taken into account
by the fact-finder in determining whether it was genuinely held.18
Upon first impression, it is difficult to find fault with Lord Hailsham’s
reasoning. If one engages in carnal knowledge of a woman without her
consent or assists or encourages others to do so in the belief that she is
giving her free and conscious permission to the sexual penetration at
issue, how does one reconcile that belief with the mens rea element of
the common law offence of rape which mandates that the accused must
12 At common law, carnal knowledge is defined as any amount of penile penetration
of the vaginal cavity, however slight, and no emission of seminal fluid is required:
Holland v The Queen ...
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