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The Queen v Getachew : rethinking DPP v Morgan

Arenson, Kenneth 2013, The Queen v Getachew : rethinking DPP v Morgan, Journal of criminal law, vol. 77, no. 2, pp. 151-162.

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Title The Queen v Getachew : rethinking DPP v Morgan
Author(s) Arenson, Kenneth
Journal name Journal of criminal law
Volume number 77
Issue number 2
Start page 151
End page 162
Total pages 12
Publisher Vathek Publishing
Place of publication Isle of Man, United Kingdom
Publication date 2013
ISSN 0022-0183
1740-5580
Keyword(s) rape
mens rea for rape at common law and statutory offences of rape
distinction between knowledge/awareness and belief
Summary 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 inexplicably 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.
Language eng
Field of Research 180110 Criminal Law and Procedure
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2013, Vathek Publishing
Free to Read? Yes
Persistent URL http://hdl.handle.net/10536/DRO/DU:30052915

Document type: Journal Article
Collections: Law
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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.