The Queen v Getachew : rethinking DPP v Morgan

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.