scholarly journals The Queen v Getachew: Rethinking DPP v Morgan

2013 ◽  
Vol 77 (2) ◽  
pp. 151-162
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Mental State ◽  
Mental States ◽  
Mens Rea ◽  
High Court ◽  
Real Possibility ◽  
Fine Line ◽  
House Of Lords ◽  
High Court Of Australia ◽  
Court Of Appeal

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.

The non-proprietary lease: the rise of the feudal phoenix

2000 ◽  
Vol 59 (1) ◽  
pp. 25-28 ◽  
Author(s):  
Martin Dixon
Keyword(s):  
Simple Application ◽  
Short Term ◽  
High Court ◽  
House Of Lords ◽  
Court Of Appeal

MR. Bruton occupied a flat by virtue of a written agreement with the Quadrant Housing Trust. The agreement specifically categorised itself as a “weekly licence” although it did give exclusive possession to Bruton. For its part, the Trust held the flat as licensee from the freehold owner, Lambeth Council, in order to pursue its charitable housing aims of providing temporary and emergency accommodation. By virtue of section 32 of the Housing Act 1985, any grant of a lease by the Council to the Trust would have been ultra vires. Bruton accepted the “licence” from the Trust on this basis, but now alleged that he held the flat on a lease, giving security of tenure and triggering a repairing obligation for the Trust under section 11 of the Landlord and Tenant Act 1985 (implied repairing obligations for short term leases). The High Court had held that the agreement was a licence and this was confirmed by the Court of Appeal, with Millett L.J. noting that it was difficult to see how Bruton could have a lease when the Trust itself held no estate in the land out of which a lease could have been granted: [1998] Q.B. 834, 845. The House of Lords, unanimously, held that Bruton had a lease on a simple application of Street v. Mountford [1985] A.C. 809. The fact that the Trust held no estate in the land was neither here nor there: Bruton v. London & Quadrant Housing Trust [1999] 3 W.L.R. 150.

TAX, MARRIAGE AND THE FAMILY

2006 ◽  
Vol 65 (2) ◽  
pp. 289-300 ◽  
Author(s):  
John Tiley
Keyword(s):  
High Court ◽  
House Of Lords ◽  
The Family ◽  
Court Of Appeal

TAX lawyers and family lawyers are being provided with much interest by the recent decision of the Court of Appeal in Jones v. Garnett. The Revenue have obtained leave to appeal to the House of Lords. When that appeal is heard it is to be hoped that the Lordships will not be swayed by one particular point made both in the Court of Appeal (by Chancellor Morritt and Carnwath L.J.), where the taxpayer succeeded, and in the High Court (Park J.), where the Revenue had succeeded.

State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22
Author(s):  
Helen Irving
Keyword(s):  
Human Rights ◽  
State Power ◽  
Federal Court ◽  
The State ◽  
Judicial Power ◽  
State Court ◽  
High Court ◽  
Federal Jurisdiction ◽  
High Court Of Australia ◽  
Court Of Appeal

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

In Re State of Norway

1989 ◽  
Vol 83 (4) ◽  
pp. 933-936
Author(s):  
Stephen M. Boyd
Keyword(s):  
High Court ◽  
House Of Lords ◽  
The Hague ◽  
Court Of Appeal

A Norwegian court issued two letters of request under the Hague Evidence Convention asking for the assistance of the English High Court in compelling testimony from two witnesses residing in England in connection with proceedings in Norway to collect taxes assessed against the estate of a wealthy Norwegian shipowner. After extensive litigation, Norway and the estate appealed to the House of Lords from a decision by the Court of Appeal that English courts lacked jurisdiction to accede to the requests because the Norwegian proceedings involved fiscal matters not within the meaning of “civil or commercial matters” as used in section 9(1) of the Evidence (Proceedings in Other Jurisdictions) Act of 1975 (ch. 34), which was enacted to implement the Hague Evidence Convention. The witnesses sought to uphold the Court of Appeal’s decision on lack of jurisdiction; they argued in the alternative that, even if there were jurisdiction, the letters of request should be denied execution because they constituted either an impermissible fishing expedition or “tax gathering” inconsistent with the decision in Government of India v. Taylor, or because execution would compel the witnesses to breach their duty of confidentiality as bankers. The House of Lords decided each of these issues in favor of Norway and the estate, and affirmed (i.e., “did not disturb”) the order obtained by Norway to compel testimony.

Figure 4.14: the two issues as set out by Lord Bridge—issue 2 As can be seen, a number of matters needing to be clarified arise from the mere identification of two issues. Note that Bridge gives the two issues a short-hand label: (1) the common law issue; and (2) the statutory issue. However, students often read and re-read without appreciating how to move from lack of understanding towards understanding. They do not notice how words can be clarified by an appreciation of the intertextual links and which words or phrases could be clarified by recourse to textbooks in the area. Again the two issues are found in a paragraph of Lord Bridge’s judgment. Reading carefully paragraphs in the immediate vicinity can assist in understanding. The responsibility of the reader is to read with understanding, therefore stopping to clarify points along the way. It is useful here to ensure that the procedural history of this case is understood. This will enable the student to obtain an appreciation of the differences in opinion by the various judges who have considered the case before its arrival in the House of Lords. Lord Bridge discusses the procedural history and it is set out in the headnote. The case was won by the plaintiffs (the buyers) in the trial court (the High Court) and the defendants (the sellers) appealed to the Court of Appeal, where

2012 ◽  
pp. 99-99
Keyword(s):  
Common Law ◽  
Trial Court ◽  
High Court ◽  
House Of Lords ◽  
History Of ◽  
The Common ◽  
Short Hand ◽  
Court Of Appeal ◽  
The Way

scholarly journals Failing the System? Enfocing the Right to Education in New Zealand

2004 ◽  
Vol 35 (3) ◽  
pp. 735 ◽  
Author(s):  
E J Ryan
Keyword(s):  
New Zealand ◽  
Attorney General ◽  
Right To Education ◽  
London Borough ◽  
High Court ◽  
House Of Lords ◽  
Borough Council ◽  
The Right ◽  
Court Of Appeal ◽  
Domestic Level

At both the international and domestic level, the existence of a right to education is given widespread support. But what are the content and consequences of this right? The meaning of the right to education was examined recently in the context of special education by the High Court and Court of Appeal in Daniels v Attorney-General. The High Court saw the right as a substantive one; the Court of Appeal viewed it in procedural terms. These different conceptions of the right affected the remedies available to the plaintiffs. This article assesses the competing understandings of the education right in NZ, and concludes, particularly in light of the House of Lords' decision in Phelps v Hillingdon London Borough Council, that the High Court's approach is to be preferred.

The Authority of Privy Council Decisions in Australian Courts

1978 ◽  
Vol 9 (4) ◽  
pp. 427-456
Author(s):  
Robert S. Geddes
Keyword(s):  
New South ◽  
New South Wales ◽  
Privy Council ◽  
High Court ◽  
South Wales ◽  
High Court Of Australia ◽  
Court Of Appeal ◽  
Judicial Hierarchy

During 1978, the High Court of Australia and the New South Wales Court of Appeal handed down decisions which announce a departure from the longstanding rule that decisions of the Privy Council bind all Australian Courts. In this article, Mr Geddes analyses these decisions and considers their future impact on the authority of Privy Council decisions in the various courts which make up the Australian judicial hierarchy.

Intention and Belief at the Root of Moral Culpability and Legal Mens Rea

2020 ◽  
pp. 87-116
Author(s):  
Michael S. Moore
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Mental States ◽  
Mens Rea ◽  
Brain Sciences ◽  
Moral Culpability ◽  
The Brain

In addition to action, responsibility in morality and in the criminal law requires that a certain mental state accompany that action. In criminal law this is termed the requirement of mens rea, or “guilty mind.” The mens rea requirements of the criminal law and of morality are built entirely out of the concepts of intention and belief. These concepts are charted in some detail, both with respect to their nature and with respect to the content they must have to give an accused a “guilty mind.” The demands made on psychology by such use of intention and belief in the criminal law are also charted, particularly demands on the precision with which the brain sciences can ascertain the content of such mental states.

scholarly journals Ignorance of the Law as a Defence to Rape: The Destruction of a Maxim

2012 ◽  
Vol 76 (4) ◽  
pp. 336-347
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Common Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Poor ◽  
House Of Lords ◽  
Long Line ◽  
The Common ◽  
The Law ◽  
Sexual Offences Act 2003 ◽  
Court Of Appeal

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1(b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)–(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

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