Michael v The State of Western Australia
[2008] WASCA 66
•20 MARCH 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MICHAEL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 66
CORAM: STEYTLER P
MILLER JA
EM HEENAN AJA
HEARD: 1 FEBRUARY 2008
DELIVERED : 20 MARCH 2008
FILE NO/S: CACR 41 of 2007
BETWEEN: ALAN JOHN MICHAEL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 40 of 2007
BETWEEN :THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ALAN JOHN MICHAEL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 1879 of 2004
Catchwords:
Criminal law - Appeal against conviction - Whether prosecution proved absence of consent on the part of both complainants - Prostitutes who engaged in sex for reward - Allegations of sexual penetration without consent - Consent allegedly overborne by threats - Allegations of intimidation and deceit - Whether consent freely and voluntarily given - First complainant allegedly forced to discount price for sexual services - Second complainant allegedly forced to provide sexual services without reward - Representations by appellant that he was a police officer - Whether representations accompanied by threats sufficient to vitiate consent - Definition of 'consent' in s 319 Criminal Code
Criminal law - Appeal against conviction - Whether prosecution case changed during course of trial - Whether directions in relation to complaint in error - Whether 'Crofts' direction required - Whether requirement to direct the jury in relation to the issue of corroboration
Criminal law - Appeal against sentence - Prosecution appeal - Effective sentence of 2 years 10 months' imprisonment imposed for convictions on five counts of sexual penetration without consent - Two complainants - Effective sentence of 2 years' imprisonment in relation to first complainant and 2 years' imprisonment partially concurrent in relation to second complainant - Whether total term of 2 years 10 months' imprisonment manifestly inadequate
Legislation:
Acts Amendment (Sexual Assaults) Act 1985 (WA)
Acts Amendment (Sexual Offences) Act 1992 (WA)
Crimes Act 1900 (ACT), s 67
Crimes Act 1900 (NSW), s 61HA
Crimes Act 1958 (Vic), s 36, s 37AAA, s 57
Criminal Code (WA), s 319(2)(a), s 324G, s 325, s 347
Criminal Code 1899 (Qld), s 348, s 349
Criminal Code Act (NT), s 192
Criminal Code Act 1924 (Tas), s 2A
Evidence Act 1906 (WA), s 36BD, s 50
Prostitution Act 2000 (WA), s 24
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Sexual Offences Act 1956 (UK), s 1
Sexual Offences Act 2003 (UK), s 74, s 75, s 76
Result:
Appeals dismissed
Category: A
Representation:
CACR 41 of 2007
Counsel:
Appellant: Mr S B Watters
Respondent: Mr S Vandongen
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
CACR 40 of 2007
Counsel:
Appellant: Mr S Vandongen
Respondent: Mr S B Watters
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Thames Legal
Case(s) referred to in judgment(s):
Atholwood v The Queen [2000] WASCA 76
Attorney‑General v Harris (Unreported, VICCA, 11 August 1981)
Brennan v The King (1936) 55 CLR 253
Crisafio v The Queen (2003) 27 A Crim R 98
Crofts v The Queen (1996) 186 CLR 427
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (NT) v WJI (2004) 219 CLR 43
DPP (No 1 of 1993) (1993) 66 A Crim R 259
Everett v The Queen (1994) 181 CLR 295
Holman v The Queen [1970] WAR 2
House v The King (1936) 55 CLR 499
Ibbs v The Queen [1988] WAR 91
Jarvis v The Queen (1998) 20 WAR 201
Kailis v The Queen (1999) 21 WAR 100
Longman v The Queen (1989) 168 CLR 79
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Papadimitropoulos v The Queen (1957) 98 CLR 249
Pearmine v The Queen [1988] WAR 315
Penny v The State of Western Australia [2006] WASCA 173
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v BAS [2005] QCA 97
R v Beserick (1993) 30 NSWLR 510
R v BMA [2005] NSWCCA 328
R v Brown (1984) 79 Cr App R 115
R v Clarence (1888) 22 QBD 23
R v Clarke [1986] VR 643
R v Clarke [1996] 2 VR 520
R v Cort [2003] EWCA Crim 2149
R v Cutts [2005] QCA 306
R v Gallienne [1964] NSWR 919
R v Green [2002] EWCA Crim 1501
R v Hakopian (Unreported, VICCA, 11 December 1991)
R v Jackson (1822) Russ & Ry 47; 168 ER 611
R v Jheeta [2007] EWCA Crim 1699
R v Leary (Unreported, NSWCA, CCA 060254, 8 October 1993)
R v Linekar [1995] QB 250
R v Mobilio [1991] 1 VR 339
R v Osenkowski (1982) 30 SASR 212
R v P S Shaw [1995] 2 Qd R 97
R v Podirsky (1989) 43 A Crim R 404
R v Pryor [2001] QCA 341; (2001) 124 A Crim R 22
R v Quartermaine [2000] WASCA 341
R v Rajakaruna [2004] VSCA 114; (2004) 8 VR 340
R v Richardson [1999] QB 444
R v Tabassum [2000] 2 Cr App Rep 328
R v Villar; R v Zugecic [2004] NSWCCA 302
R v Walsh (2002) 131 A Crim R 299
Readhead v The State of Western Australia [2005] WASCA 191
Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41
The State of Western Australia v Houston [2005] WASCA 167
The State of Western Australia v Walley [2008] WASCA 12
Verdon v The Queen (1987) 30 A Crim R 388
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wagenaar v The Queen [2000] WASCA 325
White v The Queen [2006] WASCA 62
Worthington v The State of Western Australia (2005) A Crim R 585
STEYTLER P: On 24 November 2006 the appellant was convicted by a jury on five charges of sexual penetration without consent. He was sentenced to a total term of 2 years and 10 months' imprisonment. He has appealed against his convictions. The State has appealed against the sentences imposed, contending that they were manifestly inadequate, individually and in total. Because Miller JA has comprehensively set out the circumstances giving rise to the appeals, I will mention only those that are critical to my own analysis.
Prosecution evidence at the trial
The offences involved two prostitutes, 'P' and 'T'. They were drug addicts. Both gave evidence at the trial. The critical aspects of their evidence were as follows.
P had worked at a brothel in Perth. In late 2003 or early 2004 the appellant went to the brothel. He had sex with P after paying in advance. Afterwards, he showed her a police badge which he had obtained through the internet. He told her, untruthfully, that he was a police officer. P believed him. She was worried because she had previously been arrested for engaging in prostitution.
In February 2004, P was walking in Highgate, hoping to attract custom. She knew that this was illegal. The appellant was driving down the street upon which P was walking. He stopped his car. P got into the car. She asked the appellant whether she knew him from somewhere. He told her that he was the policeman who had previously met her at the brothel. P told the appellant that her price for 'oral and sex' was $150. He repeated that he was a policeman and showed her his badge. He said words to the effect that she should discount the price of her services 'or else'. She was afraid that the appellant might arrest her if she did not comply with his request. She consequently agreed to discount her fee to $100. The appellant paid her that sum and then had sex with her. P said that, if she had not believed that the appellant was a police officer, she would not have provided the services she did provide for a fee of $100. She also said that she would not have allowed the appellant to do other things that he did, including kissing and licking her breasts and kissing and licking her face.
The events concerning P gave rise to the first three charges on the indictment.
Some two months later, T was working illegally on a street in Northbridge. She was picked up by the appellant. She offered to provide oral and vaginal sex for $100. The appellant told her that he was a police officer and that she should provide those services for no charge. She could not remember the exact words used by him, but the effect of them was that she would be in 'big trouble' if she did not do what he wanted her to do for no charge. She had previously had trouble with police because she was a known drug user. She did not want any further trouble. She consequently did as he asked. She made no protest, but had tears in her eyes. She said that she would not have provided the services for free if she had not believed that the appellant was a police officer who was able to arrest and charge her.
These events gave rise to counts 4 and 5 on the indictment.
The appellant's evidence
The appellant, while admitting that he performed the sexual acts spoken of by P and T, said that each freely and voluntarily consented to these acts. He said, in respect of P, that he was asked to pay $150 but that P agreed to provide the services sought by him for $100. In respect of T, he said that he was asked to pay $100 but that she agreed to provide her services for $80 and he paid her that sum. He admitted having previously told P that he was a police officer. He denied that he repeated this to P on the night in question but said, in cross‑examination (ts 532), that, while he believed that he had not repeated this, he could not 'swear on oath'. He denied that he said or did anything, at the time of his negotiations with P, to suggest that a discount should be given because he was a police officer.
The appellant also denied ever having told T that he was a police officer. However, earlier in the trial, when his then counsel cross‑examined T, he had put to her (ts 224) that the appellant had said something like, 'Look, I am actually a cop but I'm not working to‑day. How about looking after me on price'. T denied that the appellant had said this. She insisted that he had told her that he was a policeman and that he had intimated that he would make trouble for her if she did not do as he asked. When asked, in cross‑examination, why his counsel had put this proposition to T if, as the appellant said, he had never told T that he was a police officer, the appellant had some difficulty responding. After having acknowledged that he had heard the questions asked and that he had listened carefully to the evidence (ts 529), he at first said that he had obviously been 'mistaken between what was said the other day and what's being said now' and that he had been mistaken 'the other day' (ts 529). Then he said that he hadn't corrected his counsel because he had 'obviously missed it' (ts 530). Then, he said that he did recall his counsel asking these questions and that he guessed that what had been put by his counsel had been put on his instructions (ts 531). When asked whether he had changed his version in that respect, he said, 'Well, it would seem so' (ts 531).
The appeal against conviction
I agree with Miller JA that the appeal against conviction should be dismissed.
Grounds 2, 3 and 4
So far as grounds 2, 3 and 4 of the appeal are concerned, I agree with Miller JA, for the reasons that he has given, that none of these grounds has been made out. There is nothing that I wish to add.
Ground 1
Ground 1 of the appeal against conviction, as particularised and argued, asserts that the trial judge erred by failing to restrict the prosecution case to one that the consent of each of P and T to the sexual conduct engaged in by the appellant was obtained as a result of threats by the accused.
Section 319(2)(a) of the Criminal Code (WA) (Code) defines 'consent' for the purposes of sexual offences. It reads as follows:
'consent' means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.
The prosecution case in respect of the issue of lack of free and voluntary consent was opened in the following way (ts 169, 170):
We say that in each case the accused's statements to the complainant that he was a police officer, coupled with his prior acts in relation to each complainant and his demand to be provided the service, at least at a discount, took away the free and voluntary nature of whatever consent the complainants gave and … they would not have agreed to perform those acts upon the accused had it not been for those acts and statements.
Those acts, we say, constituted threats and intimidation so as to make the acts done … not with the free will of the complainant.
The appellant's counsel made his opening address immediately after that made by the prosecutor, as permitted by s 143(3)(a) of the Criminal Procedure Act 2004 (WA). In the course of it he said (ts 174 ‑ 175):
In short, it's the defence case that the accused paid to have sex with the complainants for an agreed amount which he paid to them, and he had sex with them without any threat or coercion or any form of deception on his part which would have induced them to consent to those acts; the sexual acts took place by consent; the girls were paid.
They may or may not have been under the mistaken impression that he as a police officer, but what the defence says is this was never critical to the question of consent in any way or at any time. The girls were paid; it's as simple as that.
Evidence was then led. However, on the second day of the trial the jury delivered a note to the trial judge asking him to clarify the notion of consent in the context of the charges. The trial judge did as he had been asked. He read to the jury the provisions of s 319(2)(a). He went on to say (ts 366):
That's what the Criminal Code tell us about consent. Consent must be, as I said, freely and voluntarily given and it's deemed not to be freely and voluntarily given if it's obtained by force, threat, intimidation or of [sic] a fraudulent means. So far as the prosecution case is concerned, the prosecution focuses on, effectively, the last of those phrases, 'Other fraudulent means'.
The following exchange then took place between the prosecutor (Ms Forrester) and the trial judge:
FORRESTER, MS: No, your Honour, when I opened, I said, 'Threat or intimidation'.
EATON DCJ: Threat or intimidation, okay. All right, but not fraud?
FORRESTER, MS: Well, I certainly didn't address that particular issue in my opening because - it's perhaps best addressed when we are discussing your Honour's charge, but it's certain
EATON DCJ: I will withdraw what I said about other fraudulent means.
FORRESTER, MS: It certainly is the case that the state case is that it was not a free and voluntary consent and that consent, if it was obtained, was obtained by means of one of the things that you set out in the section.
EATON DCJ: All right. So consent is, as I say, not free and voluntary if it is obtained by force, threat, intimidation, deceit or other fraudulent means. So that's as far as I need to say anything about consent at this stage.
The jury retired, at that point, for a mid‑morning break. The following exchange took place immediately after this (ts 367):
EATON DCJ: Sorry about this, Ms Forrester. I understood you to be effectively saying to the jury that the pretence that he was a police officer was a fraud.
FORRESTER, MS: No, your Honour. It was, we say, a deceit, but we say that it wasn't the pretence that overcame the complainant. It was the fact that he was saying he was. They are slightly different and I did say in my opening that the acts that we allege constituted threats and intimidation so as to make the acts done not with the consent of the complainant. So that's how I particularised and I'm happy to stand by that.
At the conclusion of this exchange, the trial judge asked the then counsel for the appellant, Mr Percy QC, whether he wished to comment. This exchange followed (ts 367):
PERCY, MR: I understood that probably both of those might have been open on the depositions, but my friend clearly and fairly nailed the colours to the mast and said it was a threat, and I think that's the way we are going to run the case.
EATON DCJ: Yes, threat or intimidation. Yes, you said in your opening statement amongst other things: His acts, statements and demands took away the voluntary nature of the consent. If that's the position, then that's the way it will be approached and that's how I will charge the jury in due course.
As I understand these last two exchanges, what Ms Forrester was saying to the trial judge, and what Mr Percy QC understood her to have said, was that it was not the 'pretence', as such, that brought about the consent. Rather, it was the threat which arose out of 'the fact [the appellant] was saying he was [a police officer]'. She then confirmed what she had said in opening to the effect that the acts alleged by the prosecution 'constituted threats and intimidation'.
Counsel for the appellant contends that, when she came to make her closing submissions, the prosecutor told the jury that there had been no free and voluntary consent because the consent had, in each case, been obtained by threats or by deceit or fraud. He submitted that, given the way in which the case had been opened by the prosecutor, the trial judge should not have allowed her to put to the jury that they could find that the consent had been obtained by deceit or fraud.
Counsel for the appellant also contends that the trial judge, when summing up for the jury, wrongly reinforced what had been said by the prosecutor. The trial judge told the jury what was meant by fraudulent means. Having done so, he told them that the State contended that the appellant had acted dishonestly and that the complainants had been deceived by him into believing that he was a police officer. He reminded the jury (ts 586) of the evidence given by each of P and T that the services had only been provided because the appellant 'pretended to them that he was a police officer and by reason of what he said to them in that context and that they would not have provided those services to him for no fee or at a discount if they had known that, in truth, he was not a police officer'. Then, he spoke of the prosecution case concerning the threat and intimidation which, the prosecutor had said, arose out of the appellant's implicit threat to arrest each of the women. Finally, when dealing with this issue of consent, he said (ts 592):
Please remember that it's for the State to prove that the consent of the complainants to the acts complained of was not given freely and voluntarily.
It may do so by proving that the consent of the complainant in question was obtained by force, threat, intimidation, deceit or any fraudulent means. If you are satisfied beyond reasonable doubt that the consent of the complainant in question was obtained by any one of these factors, then her consent would not be a consent freely and voluntarily given. Of course there has been no mention of force in this case, and that effectively can be excluded.
As I have said, the threats relied upon by the prosecutor in her opening were those which arose, on the prosecution case, either expressly or impliedly as a result of the appellant pretending to be a police officer. Consequently, the threats and intimidation on the one hand, and the deceit or fraudulent means, on the other, were inextricably interrelated. That was how the case was run. Examination and cross‑examination of the witnesses (including the appellant) proceeded upon that basis. Moreover, it seems to me that, when read in context, that was how the prosecutor put her closing submissions to the jury. The comment complained of by counsel for the appellant must be read in context. What was said by the prosecutor was as follows (closing submissions ts 2):
You can't go up to an ordinary person on the street and say, 'Hey, I'm a police officer. Give me sex for free'. They would slap him and they would probably report him, but if you go up to a sex worker and you say, 'I'm a police officer' and you say, 'You give me sex for a price less than or for nothing,' does the person then consent in the meaning of the law?
I have told you in the course of my opening and his Honour has read out to you in the course of the trial, and I will read it out to you again because it is such a central issue in this trial, that a consent means a consent freely and voluntarily given and, without in any way affecting the meaning of those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means and a failure to offer physical resistance does not mean that a person is not consenting, so we are right back to the way I opened at the commencement of this trial, that the accused did ‑ and it has been established now on everybody's evidence all of those acts the subject of that indictment occurred, every single one of them.
Later in her submissions (closing submissions ts 6), she said:
Then he sees [P] on the street. 'I'm into a bit of bargaining. Let's see if I can use my bargaining tool,' I would suggest, so he goes up to her and she's going '150' and she's a fairly intractable young lady. 'Well, let's see if we can use this little badge. Let's see if I can use the threat. She already knows I'm a police officer. Let's just repeat that and see if I can beat her down a bit' and it worked. It even worked to the extent that he could do things to her that she didn't want him to do, not just she didn't want to have sex with him for that price; he kissed her and touched her and she didn't want him to do it. 'Wow, this is pretty good. That worked.' Straight on to [T]. 'Get the ultimate discount, shall we? Get it totally for free.'
Still later (closing submissions ts 8) she said:
You might think that let's just say the version is somewhere in the middle, that the girls having heard that he's a police officer, have gone that extra step. Well, he's a police officer. They sit there and they think, 'Well, he can only have told me he's a police officer so that he can get me to do something and now he's asking for a discount and what can you do? He can arrest me.'
That might be a finding of fact that you make although that is not, of course, what we say the finding you should make is but you're the judges, not me, and you might then say, 'Well, you know, the girl might not have been consenting. The particular woman in question might not have been consenting. Her consent, what was in her head, was not free and voluntary, so has the state proven that he did not honestly and reasonably but mistakenly believe it?' I would suggest to you that if that's the factual scenario that you come to on the evidence, then he did not honestly or reasonably but mistakenly believe otherwise because there is only one way, one reason that he could ever have told these girls that he was a police officer. What else could it have been meant?
This is not like someone saying, 'Hey, I'm a doctor. Sleep with me.' That would be a deception but we wouldn't be charging the accused if he had gone to these girls and said, 'Hey, I'm a doctor,' big‑noted himself and tried to make himself sound more interesting. What he did is he said, 'I'm a police officer' and he even tried to pretend to you that he didn't know it was illegal. Come on. Come on. He knew it was illegal and he certainly knew it was illegal by the time [P] was in his car kneeling down, twisting, acting concerned. What did he think was going on?
He told her and he told [T] that he was a police officer and there can be only one reason for it.
The then counsel for the appellant closed his case upon the same basis. He said (closing submissions, ts 13):
The prosecution's primary case is that [the appellant] set up a web of deception by pretending to be a police officer, at least inferentially, and that as a result of that he made threats to [T] and got her to do it for nothing. With [P] he got it on the cheap. 'You do this or else.' That's a threat if he said it. 'You're going to be in trouble if you don't do this.' That's a threat if he said it, but you would need to be satisfied beyond reasonable doubt that he spoke those words …
Later in his submissions, the then counsel for the appellant stressed that P and T had consented only because they wanted the money. He said that, whatever either of them might have thought about the 'potentiality' of the appellant being a police officer, this had nothing to do with their agreeing to the act of sexual intercourse. He said (closing submissions ts 21):
What we say is that the prosecution have not gone close to proving that the reason for these girls agreeing to have sexual intercourse with him is because they believed he was a policeman. I suggest to you they slept with him because they were being paid to do it. You see, again the problems for this girl run as deep as they do for the other; drugs, dishonesty, inconsistency. I'm not going to labour it. You've heard it. It's a question for you.
At no time did the then counsel for the appellant make any complaint concerning what had been said by the prosecutor in her closing address. Nor did he seek any redirection from the trial judge in respect of the issue of consent. This is unsurprising, given the way that the trial had been run and the manner in which both counsel had closed their cases. The nature of the prosecution case had always been apparent.
Ground 1 consequently fails.
Ground 5
By ground 5 the appellant contends that the verdicts of the jury cannot be supported by the evidence 'because there was no absence of consent as defined by s 319(2)(a) of the Code'. The argument put by counsel for the appellant was essentially that, even accepting the prosecution evidence, there was a free and voluntary consent in each case and the threats, intimidation, deceit or fraudulent means related only to the price to be paid for the services provided. He argues that each of the complainant was willing to engage in sex with the appellant and that the only issue between each complainant and the appellant was one of the amount that should be paid for that sex.
These contentions put in issue the proper construction of s 319(2)(a) of the Code. That section is best understood when regard is had to the legislative history.
Legislative history of s 319(2)(a)
As at 1 July 1972 the Code provided for the offence of rape. This was defined in s 325 as follows:
Any person who has carnal knowledge of a woman or girl, not his wife, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape.
As from 9 December 1976, that provision was amended by the addition, after the words 'not his wife,' of the words, 'or his wife whilst he is separated from her and they are not residing in the same residence'.
There was, at this time, no statutory definition of the word 'consent'. The word was consequently given its ordinary meaning.
The issue of consent induced by fraud was considered by the High Court in Papadimitropoulos v The Queen (1957) 98 CLR 249. In that case the appellant deceived the complainant, who could speak no English, into believing that the two of them had been married in the course of a visit to a registry office. In that belief, she had sexual intercourse with the appellant. After a few days he left her and did not return. She discovered that there had not been a marriage ceremony. The appellant was charged with rape. The trial judge directed the jury that, if the complainant had acquiesced to sexual intercourse only upon the basis that she was married to the appellant and that belief had been brought about by the appellant's deliberate misrepresentation to her, made with the intention of persuading her to consent, then there would be no consent at all. The appellant was convicted.
The appellant applied for leave to appeal to the Victorian Court of Criminal Appeal. By a majority, leave to appeal was granted. All three judges (Lowe, O'Bryan & Monahan JJ) drew a distinction between consent given under a deception or mistake as to the act of intercourse itself and consent to that act induced by a deception or mistake as to an antecedent or collateral matter. The majority, Lowe & O'Bryan JJ, considered that a misrepresentation as to the performance of the marriage ceremony fell within the first category, under which the jury was entitled to convict. They said:
What she was consenting to was a marital act, an act to which in her mistaken belief she was in duty bound to submit. What she got was an act of fornication ‑ an act wholly different in moral character.
The minority judge, Monahan J, considered that the sexual act was the act to which the complainant intended to consent and that the appellant was the person with whom she consented to perform that act. Accordingly, he considered that the consent fell within the second category and that the appellant should not have been convicted.
When the matter came before the High Court, it was unanimous in allowing the appeal and quashing the appellant's conviction. The court (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ) said (261):
Rape, as a capital felony, was defined with exactness, and although there has been some extension over the centuries in the ambit of the crime, it is quite wrong to bring within its operation forms of evil conduct because they bear some analogy to aspects of the crime and deserve punishment. The judgment of the majority of the Full Court of the Supreme Court goes upon the moral differences between marital intercourse and sexual relations without marriage. The difference is indeed so radical that it is apt to draw the mind away from the real question which is carnal knowledge without consent. It may well be true that the woman in the present case never intended to consent to the latter relationship. But, as was said before, the key to such a case as the present lies in remembering that it is the penetration of the woman's body without her consent to such penetration that makes the felony. The capital felony was not directed to fraudulent conduct inducing her consent. Frauds of that kind must be punished under other heads of the criminal law or not at all: they are not rape …
In Holman v The Queen [1970] WAR 2, attention was given, in this state, to the meaning of the word 'consent'. Jackson CJ (with whom Burt J was in agreement) was critical of the use, by the trial judge, of the expression 'willing consent' when addressing the jury in a rape case. Jackson CJ said (6):
It is clear that in the first passage cited his Honour when using the phrase 'willing consent' is seeking to distinguish between a consent which is obtained by threats or by fear and one which is not so obtained. But the adjective 'willing' is apt to convey a very different meaning. The Concise Oxford Dictionary defines it as 'not reluctant, cheerfully ready', terms which when applied to 'consent' in relation to rape could be positively misleading. The further use of the phrases 'complete willingness' and 'a completely willing consent' emphasizes, in my view, a concept which is not in any way justified by the statutory definition, which is simply intercourse 'without her consent'. A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape. In my opinion, the passages to which I have referred in the summing‑up constituted a misdirection in law.
This was how the law stood in 1980, when Mr Michael Murray QC (as Murray SPJ then was) was commissioned to review the Code. In June 1983, he reported his conclusions to the then Attorney General in two volumes titled: 'The Criminal Code: A General Review' (Murray Report). In his report, Mr Murray identified what he saw as 'deficiencies in [s 325] as it defines consent'. He said (220, 221):
It is illogical it seems to me to say that a consent is obtained at all where acquiescence is gained by threats or fear or intimidation, or any of the other matters mentioned in the section. Those occurrences are events which logically mean that an acquiescence, which is not true consent, has been obtained. The definition of consent should emphasise that what the law is interested in is a free and voluntary consent given without any form of pressure.
Also, for example, the definition makes it clear that the only types of fraud recognised as vitiating consent are those involving the identity of a person as the husband of a married woman or as to the nature of the act of intercourse itself. There are other types of fraud which should, but have been held not to, vitiate consent so as to constitute the offence of rape and I refer in this regard for example, to the High Court decision of Papadimitropoulos (1957) 98 CLR 249, 261 where the fraud concerned was as to the legality of the act because there were fraudulent representations as to the nature of a ceremony which had been performed which was in fact a bogus wedding ceremony. That clearly affected the question of consent to intercourse because the woman concerned clearly consented on the basis that she was married to the accused when in fact that was not so.
He went on to suggest a definition of 'consent' that he had devised. This read as follows (528):
'Consent' means a consent freely and voluntarily given and, without otherwise affecting or limiting the meaning of the word, a consent is not freely and voluntarily given if it is obtained by force, threats or intimidation, or by any deception or fraudulent means.
Subsequently, the Criminal Code was amended by the Acts Amendment (Sexual Assaults) Act 1985 (WA). This came into effect on 1 April 1986. Amongst other changes that were made to the Code, it repealed s 325 and inserted, in lieu, s 324G, which read as follows:
324G(1) For the purposes of this chapter, 'consent' means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.
(2)A failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.
In a case involving sexual penetration, that section was to be read with (amongst others) s 324D, which provided that a person who sexually penetrates another person without the consent of that person is guilty of a crime.
As Miller JA has pointed out, subsequently, in Ibbs v The Queen [1988] WAR 91, the Court of Criminal Appeal revisited what had been said in Holman. In his judgment (93) Burt CJ said:
[If] not positively wrong, it would be highly dangerous for a jury now to be told that for the purpose of the new offence of sexual penetration without consent: 'A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits [emphasis mine] it, providing her permission is not obtained by force, threats, fear or fraud, it is not' sexual penetration without consent.
Brinsden J expressed similar views (101). Smith J generally agreed with what had been said by the Chief Justice and by Brinsden J. (See also Wagenaar v The Queen [2000] WASCA 325 [19] (Ipp J, Kennedy & Pidgeon JJ concurring).)
On 1 August 1992 the Acts Amendment (Sexual Offences) Act 1992 (WA) came into operation. This repealed s 324G and substituted for it s 319(2) in its present form, quoted earlier in these reasons. That section is substantially similar to s 324G save that the word 'deception' was replaced by 'deceit' and the word 'any' was introduced before 'fraudulent means'. The amending Act also replaced s 324D with s 325, which was in identical language.
Section 319(2) and its predecessor, s 324G, substantially altered the common law, at least if read at face value. That is because the words 'obtained by force, threat, intimidation, deceit or any fraudulent means' are not expressly limited in any way.
Other Australian legislation
The position is not the same in most other Australian States. Although other legislation provides, in one way or another, that consent to an act of sexual penetration will not provide a defence if it is obtained by force or threats or intimidation, in most instances consent induced by fraud or deceit is, in the context of a charge of unlawful sexual penetration, treated as no consent at all in only limited circumstances. For example, s 61HA(5) of the Crimes Act 1900 (NSW) reads as follows:
A person who consents to sexual intercourse with another person:
(a)under a mistaken belief as to the identity of the other person, or
(b)under a mistaken belief that the other person is married to the person, or
(c)under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse.
There is a similar provision in the Crimes Act 1958 (Vic). Under s 36 of that Act there will be no consent in cases including the following:
(f)the person [victim] is mistaken about the sexual nature of the act or the identity of the person [offender];
(g)the person [victim] mistakenly believes that the act is for medical or hygienic purposes.
The Criminal Code Act 1899 (Qld), like the Code in this State, requires, amongst other things, that consent be 'freely and voluntarily given' (s 348(1)). However, while fraud is one of the factors that will vitiate consent under the Queensland Code, this category is restricted by s 348(2)(e) to 'false and fraudulent representations about the nature or purpose of the act'.
In some cases the legislation elsewhere in Australia also provides for a less serious offence of procuring sexual penetration by fraud. For example, s 57(2) of the Crimes Act 1958 (Vic) makes it an offence to procure a person, 'by any fraudulent means' to take part in an act of sexual penetration. That offence carries a maximum term of 5 years' imprisonment.
The legislation in the Australian Capital Territory and in Tasmania appears to be more widely drafted. Section 67(1) of the Crimes Act 1900 (ACT) provides that consent to sexual intercourse is 'negated' if that consent is caused, amongst other things:
(f)by a mistaken belief as to the identity of that other person; or
(g)by a full misrepresentation of any fact made by the person, or by a third person to the knowledge of the other person … .
Section 2A(1) of the Criminal Code Act 1924 (Tas) provides that consent means 'free agreement'. Subsection (2) of that section goes on to provide that, without limiting the meaning of that expression, a person does not freely agree to an act if the person, amongst other things, 'agrees or submits because of the fraud of the accused' or 'is reasonably mistaken about the nature or purpose of the act or the identity of the accused'.
Significance of the legislative change in Western Australia
There has been some debate concerning the significance of the change to the common law introduced by the definition of 'consent', as it presently stands in this state. This has centred around the absence of any express limitation of the words 'deceit, or any fraudulent means' and of the words 'threat' and 'intimidation'.
Under the common law, the notion that consent obtained by fraud is no consent at all, in this context, has not been well received. In the well‑known case of R v Clarence (1888) 22 QBD 23, Wills J, after commenting that this notion is not true as a general proposition either in fact or in law, went on to say (27):
If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent. In respect of a contract, fraud does not destroy the consent. It only makes it revocable.
In the same case, Stephen J said (43 ‑ 44):
It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification … Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled. These illustrations appear to shew clearly that the maxim that fraud vitiates consent is too general to be applied to these matters as if it were absolutely true … The only cases in which fraud indisputably vitiates consent in these matters are cases of fraud as to the nature of the act done.
Stephen J went on to say (44):
Consent to a surgical operation or examination is not a consent to sexual connection or indecent behaviour. Consent to connection with a husband is not consent to adultery. I do not think that the maxim that fraud vitiates consent can be carried further than this in criminal matters. It is commonly applied to cases of contract, because in all cases of contract the evidence of a consent not procured by force or fraud is essential, but even in these cases care in the application of the maxim is required, because in some instances suppression of the truth operates as fraud, whereas in others at least a suggestion of falsehood is required. The act of intercourse between a man and a woman cannot in any case be regarded as the performance of a contract … The woman's consent here was as full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or as to the identity of the agent.
These comments accorded with what Stephen J had earlier said, in his Digest of the Criminal Law (3rd ed, 1883) 185, to the effect that 'where consent is obtained by fraud the act does not amount to rape'.
In Australia, the High Court adopted a similar approach to that taken in Clarence when it said, as I have earlier mentioned, that the 'essential inquiry' is whether 'the consent is no consent because it is not directed to the nature and character of the act': Papadimitropoulos (260). That, taken with the court's other comments (261) to which I have referred, effectively meant that, unless the fraud was directed to the nature and character of the act of penetration, it was irrelevant to the question whether there had, or had not, been consent.
In England, Clarence has since been applied in R v Linekar [1995] QB 250. In that case the appellant had approached the complainant, a female prostitute, and negotiated a fee of 25 pounds for sexual intercourse. At the time he had no money on him and no means of paying, but deliberately concealed this from the complainant. After he had had sexual intercourse with the complainant, the appellant ran off without making any arrangement for payment. He was charged with rape, contrary to s 1 of the Sexual Offences Act 1956 (UK). That section provided that:
A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.
The appellant was convicted. The Court of Appeal quashed the conviction. After relying upon the passages to which I have referred in the judgments in Clarence, and after referring to what the High Court had said in Papadimitropoulos, the Court of Appeal concluded that the prostitute had consented to sexual intercourse with the appellant. The court found that the 'reality' of that consent was not destroyed by being induced by the appellant's false pretence that his intention was to pay the agreed price of 25 pounds for her services.
Subsequent to the decision in Linekar, the Sexual Offences Act 2003 (UK) was enacted. Section 76 of that Act raised a number of presumptions that were conclusive of the issue of consent and, consequently, when intercourse was proved, conclusive of guilt. One of these (s 76(2)(a)) operated when 'the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act'. In R v Jheeta [2007] EWCA Crim 1699, the Court of Appeal (Sir Igor Judge, Simon J & Judge Goldsack QC) considered that provision. The court provided a number of examples which, it said [27], demonstrated the 'likely rarity of occasions when the conclusive presumption in s 76(2)(a) will apply'. One of these was the situation that occurred in Linekar which, the court said [27], would not fall within its ambit.
As Miller JA has mentioned, in an article entitled 'Rape: When Does Fraud Vitiate Consent' (1995) 25 University of Western Australia Law Review 334, Mr G Syrota considered whether Linekar would have been differently decided in this jurisdiction. He suggests that the common law approach still applies, in Western Australia, in a case of that kind. He argues that there are three difficulties with the view that virtually any false pretence (and not merely those which relate to the identity of the perpetrator or the nature of the act) may negative consent, leaving the perpetrator guilty of an offence under s 325.
The first difficulty is that this would leave the then s 192(2) (now s 192(1)(b)) of the Code largely or wholly redundant. That section makes it an offence for a person to procure a woman, who is not a common prostitute or of known immoral character, by any false pretence, to have unlawful carnal connection with a man. Mr Syrota points out that, as with the corresponding English legislation, it has long been established that any false pretence is sufficient for the purposes of that section, provided that it induces the woman to engage in an unlawful carnal connection. He suggests that there would be little point in retaining that offence if any false pretence was also capable of bringing an offender within the ambit of s 325.
His second difficulty arises from the then provisions of s 202 of the Code (now s 192(2)). That section provides that it is no defence to a charge under s 192 that the act was done 'with the consent of the person with respect to whom the act was done'. Mr Syrota suggests that it is implicit in that section that there must be at least some types of false pretence which may induce a woman to have sexual intercourse with a man, but which do not vitiate her consent to it. He offers the same example as was given by Wills J in Clarence, in the extract from his judgment quoted above. Mr Syrota suggests that, if this type of pretence does not negative consent for the purposes of s 192(2), it must also not do so for the purposes of s 325, which requires proof of sexual penetration without consent.
Mr Syrota's third difficulty concerns the wording of s 325. He refers, in this respect, to the distinction drawn in Papadimitropoulos between the consent to the physical act of penetration and the inducing causes of that consent. He suggests that, as under the common law, it is the consent to the sexual penetration that is in question under s 325 and, so long as the woman comprehends the nature of the act and knows the identity of the man, her consent is established whether or not there has been fraud as regards a collateral matter. He goes on to say:
It is true that section 319(2)(a), which applies to section 325, speaks not merely of 'consent' but of 'a consent freely and voluntarily given'; but it is doubtful whether these words alter the fundamental requirement that consent relates exclusively to the 'physical fact of penetration' and that an inquiry into 'inducing causes' is not in point.
Consequently, Mr Syrota concludes that, to vitiate consent and bring an accused person within s 325, the fraud must relate either to the identity of that person or to the nature of the act. He suggests that other frauds, which do not vitiate consent, can be dealt with either under s 192(2) or s 409 (which deals generally with the offence of fraud).
Mr Syrota's view, while shared by some (see EJ Edwards, RW Harding and IG Campbell, The Criminal Codes: Commentary and Materials (4th ed, 1992) 542 and see, also, E Colvin and J McKechnie, Criminal Law in Queensland and Western Australia: Cases and Materials (5th ed, 2008) [6.10]), is not shared by others. Simon Bronitt, 'Rape and Lack of Consent' (1992) 16 Criminal Law Journal 289, 300 ‑ 301, suggests that the approach adopted by the then s 324G of the Code is such that 'any fraudulent behaviour which induces a person to have intercourse will vitiate consent'. RG Kenny, An Introduction to Criminal Law in Queensland and Western Australia (6th ed, 2004) says (307) that the definition of consent in s 319(2) of the Code 'does not limit the deceit or fraudulent means to the nature of the sexual act and these terms may be broad enough to extend to the wider aspects of deception such as arose in Papadimitropoulos'.
Neil Morgan, 'Oppression, Fraud and Consent in Sexual Offences' (1996) 26 University of Western Australia Law Review 223 compares what he refers to as the 'narrow view' taken by Mr Syrota and others with the 'wide view' of s 319(2)(a) taken by Mr Bronitt and others (including B Fisse, Howard's Criminal Law (5th ed, 1990) 180 ‑ 183).
Professor Morgan suggests, rightly, that the ramifications of the wide view are truly dramatic. He offers examples of a man who falsely professes his undying love for a woman who agrees to have sexual intercourse only because she believes his protestations; of a woman who tells a man that she is unmarried when she is in fact married; and of a woman who agrees to sexual intercourse on the basis of the man's false promise that he intends to marry her. He suggests that it cannot have been intended that the law of sexual assault should reach so far or that attempted sexual assault charges might lie in the case of failed 'seductions'.
However, Professor Morgan takes a different approach from that adopted by Mr Syrota. He acknowledges that those who adopt the common law approach, notwithstanding the definition in s 319(2)(a), are able to point to the fact that, before referring to 'force, threats, intimidation, deceit, or any fraudulent means', that section specifically states that these factors do not 'in any way [affect] the meaning attributable' to the requirement that consent must be freely and voluntarily given. However, he suggests (231) that the more natural reading of the definition would seem to be that the phrase is intended to extend rather than to restrict the possible operation of the law. He points out that this would be more in line with what was said in the Murray Report. He goes on to say (231):
It is therefore submitted that section 319(2)(a) requires the courts to focus on the defendant's fraud rather than the victim's mistake. This ensures a clearer focus on the defendant's culpability and also accords with the policy behind modern sexual assault laws which … should seek to protect victims from violence and various forms of exploitation and not from their own mistakes.
Professor Morgan draws a distinction between cases involving force, threats and intimidatory behaviour, on the one hand, and fraud, on the other. He suggests (233) that, in cases other than fraud, judges should leave it to the jury to decide whether, as a matter of fact, there was free and voluntary consent as opposed to mere acquiescence. However, he says that, since sexual assault laws target cases of violence and the abuse of power, they should not be used, in cases such as Linekar, to regulate what may be regarded as essentially commercial transactions. He points to the fact that the victim of Mr Linekar's deception had agreed to have sexual intercourse with him and was under no misapprehension as to the nature or moral quality of the act or the reasons for it. He argues (234) that a conviction for a lesser offence of fraud rather than sexual assault would adequately and appropriately reflect the degree of criminality. He consequently argues that the courts should reject the view that any type of fraud can vitiate consent, describing that view as unworkable and as generating many practical difficulties. He suggests that the courts should adopt legal rules which delimit the situations in which fraud vitiates consent, by reworking the common law rules, and that they should not regard this as merely a question of fact for the jury.
There is a helpful discussion of the factors that should vitiate consent in a discussion paper published by the Model Criminal Code Officers Committee in 1996, headed 'Chapter 5: Sexual Offences Against the Person'. The authors favour the Western Australian Code's use of the words 'consent freely and voluntarily given'. They say (49) that this phrase makes it clear that lack of consent is not confined to physical circumstances involving the use of force or violence and that it emphasises that consent should be seen as a positive state of mind. They say, as regards fraud, that the argument in favour of a wide view is that there is 'little justification for restricting the basic offence to fraud as to the identity or nature of the act, thereby excluding the circumstances which arise in cases such as Papadimitropoulos and Mobilio'. This last reference is to R v Mobilio [1991] 1 VR 339, in which the fraud caused the victim to believe that penetration (by a medical instrument) was being effected for medical diagnostic purposes. This argument in favour of the wide view suggests (55) that, because the victim consents in such cases only because of the deception, it should be open to prosecute the accused 'for the basic offence'. The contrasting view put up by the Committee is that 'the basic offence should be restricted to cases involving force or the threat of force, whether express or implicit'.
The authors say (55), in regard to fraud, that it is conceded that the common law categories are correct. They go on to say:
However, to allow consent to be negated by any type of fraud threatens the seriousness of the offence. The basic offence should not be extended to cover conduct that is merely dishonest. To do so would mean that unlawful sexual penetration could be committed by mere deceit or trickery:
'The possibilities of misrepresentations are endless, ranging from one spouse's lie that he has obtained a job or that he is the benefactor of the delivered flowers, to assurances about possession of sexual dexterity and declarations of love and respect, to proffering a prostitute a worthless cheque.' (Cunliffe I 'Consent and Sexual Offences Law Reform in New South Wales' (1984) 8 Criminal Law Journal 271 at 281).
Again, while inducing others to take part in a sexual act by deceptive means may not be acceptable to most people, there is no public interest served in making this type of behaviour subject to the sanction of the criminal law. Alternatively, there may be some particular acts of fraud which should come under the criminal law. However, these ought to be the subject of some lesser offence such as those relating to procuration.
The words 'obtained by force, threat, intimidation' have also given rise to difficulty. In Howard's Criminal Law above, Fisse suggested that these words, notwithstanding their literal width, left room for doubt in four directions (183). These were:
first, whether threats or the actual application of force is limited to [the victim]; secondly, whether threats or intimidation are limited to serious bodily harm; thirdly, whether [the victim's] belief that she has been threatened need be reasonable; and fourthly, whether the threats need be immediate.
The first and fourth of the questions posed by do not arise in this case. The threats were made, in each case, to the victim and they were immediate. However, it is difficult to see why, on the ordinary meaning of the words used in s 319(2)(a) of the Code, the threat should be one directed at the victim or why it should be 'immediate'. The question for the jury will always be whether or not the consent was freely and voluntarily given or, relevantly to this issue, whether it was obtained by threat. On the face of it, it is difficult to see why the legislature should have chosen to distinguish between a threat, for example, to a spouse or sibling of the victim, so as to force the victim to consent to intercourse, and one of harm to the victim himself or herself. As will be apparent, s 325 of the Code, in its original form, referred to 'threats or intimidation of any kind'. However, it does not seem to me that the deletion of the words 'of any kind' was intended to limit the words 'threat' and 'intimidation'. Section 324G, which followed the Murray Report, merely adopted the form of words suggested in that report. Equally, because the question is whether or not the consent was 'obtained by' force, threat, intimidation, deceit, or any fraudulent means, it is difficult to see why the threat should necessarily be immediate. The victim may be as much induced to consent by a threat of something that is to happen in the future as by something that will happen more immediately. However, because these questions were not addressed, at all, in argument, it is unnecessary to reach any final decision in respect of them.
The second, and perhaps the third, of the questions posed by Fisse do arise in this case, although, once again, no argument was addressed to them. Both questions were touched upon in R v P S Shaw [1995] 2 Qd R 97. That case concerned the proper construction of s 347 of the Criminal Code 1899 (Qld) and, in particular, the meaning of the words 'by means of threats or intimidation of any kind'. Pincus JA considered the meaning of those words (114). He arrived at the following conclusion:
The types of cases in which the threat has been one of creating for the complainant a problem in returning home illustrate the difficulty associated with holding that the reasonableness or proportionality of the reaction to the threat is irrelevant; if the threat not to take a complainant home is one which, if carried out, would cause her mere inconvenience or minor expense, but nevertheless induces consent, it would seem odd that this should be treated as rape. In the present case the jury might rationally have arrived at the conclusion that the complainant’s submitting to intercourse and the other acts involved was, considering her personal characteristics and situation, a response to the threat which one might expect such a young girl to make. The appellant’s previous treatment of the complainant was such as to give the threat that the complainant would not go home a particular significance, referred to in the Crown’s submission below, namely that of a threat to keep her in the location in Innisfail where she would be 'available for sexual misuse at the hands' of the appellant. So that if, as I think one should, one reads the reference in the statute to consent obtained by means of threat as confined to instances in which the threat is one of substantial harm, the evidence is sufficient to support a conviction. Further, the judge’s directions were sufficient to convey to the jury the notion that substantial harm must be threatened.
McPherson JA took a wider view of the operation of the section. He said (115):
The question here was not whether a woman of average fortitude, maturity, or determination would have ignored or resisted a similar threat if made to her, but whether the consent of this particular complainant was induced by the threat made to her by the appellant. Under s 347 it was sufficient for the purpose if the complainant’s consent was in fact obtained by means of threats or intimidation 'of any kind'. The section does not require that the threats or intimidation must, objectively speaking, be substantial. That is not surprising when it is borne in mind just how much human attitudes and behaviour may vary from one individual to another.
The third judge, Fitzgerald P, found it unnecessary to consider the issue. However, he said (111):
If the law is to be amended, care should be taken not only to ensure that the law does not punish as rape conduct which ordinary members of the community would not place in that category; the law's protection should not be denied to women who are weak or vulnerable to domination and exploitation, whose consent to intercourse can be obtained by taking advantage of their condition, and is not a free and informed exercise of will.
There are other suggestions that reasonableness of the victim's response to the threats or intimidation is not a requirement. Joscelyn Scutt, 'Consent v Submission: Threats and the Element of Fear in Rape' (1977) 13 University of Western Australia Law Review 52, 66 said:
If the idea of consent is applied as a subjective standard ‑ which would seem to be the only intelligible standard which could be applied to the term ‑ then it would seem irrelevant that another person would not have been terrified, or her reason overcome, by a threat of a similar nature. What might validly interfere with one person's ability to consent may be of no moment to another. The definition of rape is not that it is 'sexual intercourse without consent of the reasonable man'.
This approach is supported by S Bronitt and B McSherry, Principles of Criminal Law (2nd ed, 2005). The authors suggest (578) that this subjective approach to fear is consistent with the policy of 'taking your victims as you find them'.
As to the nature of the threat, Colvin and McKechnie suggest [6.10] that the interpretation of the broad phrase 'freely and voluntarily' is yet to be determined and that there may be room for debate over the significance of harassment and economic pressure as forms of intimidation.
It seems to me that, on their ordinary meaning, the words 'threat' and 'intimidation' are not limited to the threat of physical violence. A threat is as much a threat if it is one, for example, of blackmail as it is if it is one of physical violence. The same is true of a threat of substantial economic harm. However, there remains a question whether a line should be drawn and, if so, where.
Mr Syrota suggests (344) that the word 'threat', in the definition of consent, does not mean 'any threat'. He says:
Suppose, for example, that D threatens a woman that, if she does not submit to intercourse with him, he will (i) report her to the Tax Office for tax evasion; or (ii) make sure that she is dismissed from her job; or (iii) make it difficult for her to get a bank loan which she desperately needs; or (iv) cease 'dating' her on a regular basis. Surely the Criminal Code requires a line to be drawn somewhere, but regrettably section 319(2)(a) gives no clue as where it is to be drawn.
He suggests that judges should direct juries, as a matter of law, as to which types of threat may vitiate consent, in the sense of rendering it other than free and voluntary.
There is an obvious difficulty, in circumstances in which no limitation has been imposed by the legislature, in the notion that judges should direct juries, as a matter of law, as to which types of threat may vitiate consent in the sense to which I have referred. While difficulties may arise if any threat is to suffice, it seems to me that the legislature has chosen to impose a subjective test which does not have regard to the nature of the threat except insofar as the jury is required to assess whether the victim's consent was in fact 'obtained by' the threat or intimidation.
The meaning of the words 'obtained by' was considered by the Queensland Court of Appeal in R v BAS [2005] QCA 97. Fryberg J (Davies JA concurring) said [98] that the question whether consent was obtained 'by' a representation involved an inquiry into whether there was evidence of a causal link between the representation and the obtaining. Although regarding it as inappropriate in the circumstances of that case to embark upon an examination of the concept of causation in this context, Fryberg J said:
I must however disclose the basis upon which I approach the present case. First, the law does not require the representation to be the sole cause of the obtaining of consent; it is sufficient if it plays a substantial (ie more than trivial) part in that process. Second, (without determining whether the reasoning in March v E & M H Stramare Pty Ltd ((1991) 171 CLR 506) can be applied in the present context) the concept of causation in this context is one of practical or commonsense causation and for that reason, particularly suited to determination by a jury. What was said of negligence in Bennett v Minister of Community Welfare is applicable here: 'In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of commonsense ((1992) 176 CLR 408 at pp 412 ‑ 13)'. Third, that being so, when a material representation is made which is calculated to induce the representee to give consent and that person in fact gives consent, it is open to the jury to infer that she was induced to do so by the representation (compare Gould v Vaggelas (1985) 157 CLR 215 at p 236 per Wilson J). In practice I do not think that proposition involves any reversal of the onus of proof. The jury will always be deciding the question in a context; whether they draw the inference will depend upon the context.
It is important to bear in mind that the consent referred to in s 325 is one that is freely and voluntarily given: s 319(2)(a). The definition makes it clear that consent is not freely and voluntarily given 'if it is obtained by force, threat, intimidation, deceit, or any fraudulent means', without in any way affecting the meaning attributable to the words 'freely and voluntarily given'. As Professor Morgan points out, the more natural reading of the words 'without in any way affecting' is that the phrase is intended to extend rather than restrict the possible operation of the provision. Also, that interpretation accords with the recommendation made in the Murray Report. (Although other submissions were also received prior to the enactment of the Acts Amendment (Sexual Assaults) Act 1985 (WA), it seems very probable, from the fact that the Act effectively adopted the definition in the report, that the recommendation was accepted by Parliament.)
On the face of it, the question whether or not consent has been obtained by any of the forbidden means is a factual question to be determined by the jury.
The present case
In the present case, in my opinion, the consent of the victims must have been found by the jury to have been obtained 'by' threat or intimidation. The jury must have accepted the evidence of each of the complainants to the effect that she agreed to provide the sexual services, in circumstances in which she would not otherwise have done so (payment of less than an acceptable amount or non‑payment), solely because she was afraid that the appellant would arrest her or otherwise make trouble for her.
That seems to me inevitably to follow from the fact of the convictions (more especially when regard is had to the way that the case was run by both prosecution and defence). I have mentioned that, in T's case, the appellant denied that he had said that he was a police officer and asserted that he had negotiated, and paid, a lower price. The jury must have rejected his evidence and accepted that of T. If the appellant told T that he was a policeman that, of itself, would have carried an implied threat. It could not sensibly be suggested (and nor was it) that he could have had any other reason for telling her that. It was not in dispute that P was under the impression that the appellant was a police officer (although the appellant said that this was only because of what he had previously told her in an attempt to 'big note' himself). The jury must have accepted P's evidence that it was only because of her belief that he was a police officer (with or without the other words said to have been spoken by him) that she was induced to agree to provide her services at a discount. That, in turn, could only have been because of the implicit threat (or an express threat, if her evidence in that respect was accepted) that, if she did not do so, he could make trouble for her because of his status as a police officer, given her vulnerable situation.
In these circumstances I am unable to accept that the jury could have thought that the appellant's deception of the two women played any part at all in inducing consent, other than by reason of the fact that it facilitated the making of the express threats spoken of by the two women or by means of the implicit threat that the very fact of being a police officer would have conveyed to each of the women. Each spoke of being induced to consent by her fear that the appellant would otherwise arrest her. There was no suggestion by either that her consent was induced by anything else. The only inducing factor that was put to each of them in cross‑examination was that of payment of an agreed fee.
There is no ground of appeal relating to, and no submissions have consequently been addressed to, the issue of honest and reasonable, but mistaken, belief on the part of the appellant that the consent of each of P and T was freely and voluntarily given. It is consequently unnecessary to deal with that issue. However, because EM Heenan AJA has addressed it in his reasons for decision, I will comment briefly on it.
The issue was touched upon by the then counsel for the appellant in his closing address to the jury. It was also addressed by the trial judge in his summing up. Not surprisingly, however, the emphasis of the defence case was upon the unreliability of P and T and upon the suggestion that they had lied to the police about the appellant so as to ingratiate themselves with the police in order to extricate themselves from other 'difficulties' then faced by them. It is apparent from the verdicts that the jury were satisfied that a defence of mistake had been negatived. That seems to me to have been an inevitable outcome. As I have said, the appellant could have had no other motive than that of inducing fear by his claimed status as a police officer. Even if he did hold the belief that his assertion that he was a police officer had done nothing to induce consent it seems to me to be unthinkable that the jury would have found this to be reasonable.
Next, it seems to me that, whatever limitations there might be, if any, as regards the kind of threat that is comprehended by s 319(2)(a), a threat, whether express or implied, made to a vulnerable person to make trouble for that person by arresting her or taking other legal steps against her, in circumstances in which the person making the threat is apparently in a position to carry it out, is a threat or intimidation of the kind contemplated by the section.
On this analysis, there is no need to decide what is comprehended by 'deceit or any fraudulent means'. The fact that the threat or intimidation was made possible only by the appellant's dishonest behaviour seems to me to be unimportant, even if it should be thought that dishonest behaviour of that kind does not fall within the phrase 'deceit or any fraudulent means' (an argument which must cope with the width of the language used). In circumstances in which the consent was in each case obtained by threat or intimidation, it does not matter whether the ability to make the threat, or to intimidate the victim, was or was not brought about by deceit or any fraudulent means. I have mentioned that the case was left with the jury by the trial judge upon the basis that, if they were to find that any one of threat, intimidation, deceit or fraudulent means had induced the consent, they should find that consent had not been freely and voluntarily given. However, as I have said, in this case the deceit or fraudulent means (if it could be so categorised) constituted by the appellant's claim to be a police officer could only have induced consent by the resulting threat or intimidation. As I have stressed, that was the way in which the case was run by both parties and it was not (and, in my respectful opinion, could not have been) suggested otherwise. Consequently, nothing turns upon the distinction for present purposes.
I am also unable to accept that the consent was freely and voluntarily given, in each case, because the threat or intimidation related only to the amount to be paid. An analysis of that kind assumes that, merely because each complainant was prepared to have sex with the appellant at a price, she had freely and voluntarily consented to have sex with him regardless of whether or not he was willing to pay the price. That was not the case. In P's case, were it not for the threat and intimidation, she would not have provided the services provided by her at all. She was willing to give her free and voluntary consent only if $150 was paid. That was the plain effect of her evidence. The fact that the appellant might have provided her with an extra $50, had she held firm, is not to the point. He did not provide, or offer to provide, the extra $50. Similarly, in T's case, it is obvious from her evidence that she would not have had sex with the appellant at all, were it not for his threats and intimidation of her. She was a drug addict who needed money. It was only for that reason that she was willing to have sex with the appellant. The fact that the two complainants were prostitutes seems to me to be irrelevant in this context. While each was prepared to provide sex in return for money, neither was prepared to do so for less than the rate stipulated by her.
I should also say that it seems to me that, as desirable as this might be, it is no easy matter to distinguish between threats and intimidation, on the one hand, and deceit or any fraudulent means, on the other, in the way suggested by Professor Morgan. The words of the definition were plainly intended by the Murray Report to be given a wide operation and, as I have said, the wording suggested by that report was substantially adopted. It also seems to me that s 319(2)(a) cannot be read down by resort to s 192 and s 202, as suggested by Mr Syrota. The fact that the same conduct might give rise to more than one offence under the Code is a slender basis upon which to read down the plain meaning of the words used. Finally, I should say that the suggestion that this court might rework the section according to common law rules is not without its difficulty. The court is, of course, bound by the legislation enacted by the Parliament. Resort to the common law, when interpreting a statute, is appropriate only when its language is ambiguous or in other special circumstances (which are not presently applicable): Brennan v The King (1936) 55 CLR 253, 263 (Dixon & Evatt JJ); R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 18 ‑ 19 (McHugh J).
Because of these difficulties (in respect of which I express no final opinion, it being unnecessary for me to do so), it seems to me that the most appropriate solution is that the legislation should be amended. Plainly, the use of the words 'deceit or any fraudulent means' renders the section susceptible to an interpretation that is dramatic in its reach, for the reasons suggested by Professor Morgan and Mr Syrota, amongst others. There is obviously a need for some limit to be placed upon the meaning of those words. That is best done by the legislature.
I would grant the appellant leave to appeal on ground 5. However, for the reasons given I would decline to uphold that ground.
It follows that I would dismiss the appeal against conviction.
The appeal against sentence
As Miller JA has pointed out, the State raises only two grounds in the appeal against sentence. The first is that the sentencing judge imposed inadequate terms for the individual offences, having regard to their seriousness. The second is that the sentencing judge gave undue weight to the totality principle.
On each of counts 1, 2, and 4 (each of which involved sexual penetration by way of fellatio) the sentencing judge imposed a term of 20 months' imprisonment. In respect of each of counts 3 and 5 (each of which involved penile/vaginal intercourse) he imposed sentences of 2 years' imprisonment. The sentences imposed in respect of the convictions on counts 1, 2 and 3 were ordered to be served concurrently. Those imposed in respect of the convictions on counts 4 and 5 were directed to be served concurrently with each other, and partly concurrently with the terms imposed on counts 1, 2 and 3. That was done by ordering that the sentences to be served in respect of counts 4 and 5 were to begin after the appellant had served 10 months of the sentences imposed in respect of counts 1, 2 and 3. This gave rise to the total term of 2 years and 10 months' imprisonment. The appellant was made eligible for parole.
It is trite that in appeals against sentence (whether on grounds of excessiveness or inadequacy) the following principles, enunciated in House v The King (1936) 55 CLR 499, 505, must be applied:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
(See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J), 329 (Gaudron & Gummow JJ).)
In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672, the Court remarked that the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. In Dinsdale (339), Kirby J, after referring to this passage, said [58]:
Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it … As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.
State appeals are in a special category. The principles in respect of them are well‑known. They were set out by Charles JA, with whom Winneke P and Hayne JA agreed, in R v Clarke [1996] 2 VR 520, 522. Those principles have been applied in many subsequent cases: see, for example, The State of Western Australia v Houston [2005] WASCA 167 [52] ‑ [54]; The State of Western Australia v Walley [2008] WASCA 12 [25] ‑ [26] (Wheeler & Miller JJA). It is enough, for present purposes, to say that appeals by the State should be brought only in 'the rare and exceptional case' (Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson & Gaudron JJ)) to establish some point of principle. An example might be a case in which the sentence imposed 'reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle': Clarke (522); Everett (300). Another example is when it is necessary to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: Clarke (522); R v Osenkowski (1982) 30 SASR 212, 213 (King CJ, White J concurring).
The sentences imposed in this case, whether looked at individually or as a matter of totality, do not, in my respectful opinion, reveal 'such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle'. Nor do they seem to me to be so disproportionate to the seriousness of the crime 'as to shock the public conscience'. No other basis for intervention has been suggested.
Prostitutes need as much protection from sexual predators as anyone else. They are often more vulnerable to exploitation than others, as this case reveals. However, in the case of offences against prostitutes, as with any other victim, there is a vast range of possible criminality. That is why the legislature fixes maximum penalties for sexual offences rather than minimum penalties. It is also why the courts constantly assert that there is no 'tariff' for this kind of offending: see, for example, R v Podirsky (1989) 43 A Crim R 404, 411 (Malcolm CJ, Pidgeon J concurring); R v Quartermaine [2000] WASCA 341 [16] (Wheeler J, Kennedy & Wallwork JJ concurring). In this case, the appellant's offending behaviour seems to me to have been very much towards the lower end of the potential range of criminality. In neither case was there any violence or threat of violence. In each case the complainant was prepared to have sex with the appellant at the time and place where that was done, if her fee was paid. In P's case, she was paid money, albeit less than the minimum that she was prepared to accept in return for sex.
It is difficult to find truly comparative sentences in a case such as this (we were not referred to any). However, there are cases that provide some (necessarily limited) assistance.
In Linekar the offender was sentenced, at first instance, to a term of 2 years probation and 100 hours of community service. Because the appeal against conviction succeeded, the issue of sentence did not arise in the Court of Appeal, although Morland J commented that the sentence imposed 'indicates the unusual facts of the case' (71). The maximum penalty that could have been imposed was one of life imprisonment.
In Victoria the effect of the decision of R v Mobilio [1991] 1 VR 339 has been reversed by statute which now provides that a person does not freely agree if they mistakenly believe that the act is for medical or hygienic purposes.
Academic writings
When writing in (1992) 16 Crim LJ 85, Mr S H Bronitt addressed the criminal law, and in particular the significance of consent, in cases of alleged criminal liability for the transmission of HIV/AIDS and, after discussing Papadimitropoulos observed (at 89):
This case dealt with rape, but the principles rather would apply equally to any offence where an ingredient was the victim's non‑consent, such as assault. In the present law, ' ... whatever the context, there is a critical distinction between understanding what is being done and why it is being done'. Only where the deceit relates to the former will the victim's consent be vitiated.
In another article writing upon rape and lack of consent (1992) 16 Crim LJ 289 the same author, Mr S H Bronitt, addresses proposed changes to rape legislation in Australia after Papadimitropoulos and was critical of the different statutory attempts to deal with that in New South Wales and Victoria, observing (at 297):
The restrictive approach to vitiation of consent in the common law stems from a judicial reluctance to give the 'nature and character of the Act' a broader interpretation. Merely devising piecemeal statutory modifications on an ad hoc basis, as has been done in New South Wales and Victoria, tackles the symptoms rather than the cause of the problem. The cause of the problem is the critical distinction in the present law between understanding what is being done and why it is being done.
The history and significance of the amendments to s 319(2) of the Code and the new ch 40 dealing with 'fraud' are described by Mr G Syrota in the useful article 'Criminal Fraud in Western Australia: A Vague, Sweeping and Arbitrary Offence' (1994) 24 University of Western Australia Law Review 261. One of the possible applications of the extension of the law addressed by Mr Syrota (273), is where an accused person induces a gullible young woman to sleep with him by pretending to be a pop star or other celebrity. At common law that would not constitute rape or assault because of the Papadimitropoulos test but, so the author postulated, that accused could have been convicted of fraud under s 409(1)(e) if the Murray test of intent to defraud had been accepted: it would not have mattered that the harm caused to the woman was non‑pecuniary in nature.
In a subsequent article Mr G Syrota discusses the case, already examined, of R v Linekar [1995] QB 250, being the one in which a prostitute was tricked into having sexual intercourse with a man by a false promise of payment and where it was decided that this did not constitute rape - see 'Rape: When Does Fraud Vitiate Consent' (1995) 25 University of Western Australia Law Review 334. In the course of the article that author wrote of Linekar's case (336):
In quashing L's conviction the Court of Appeal was clearly influenced both by policy and precedent. As for policy, the court was keen not to broaden the crime of rape by fraud to such an extent that men would be put at risk of being charged with this offence in seemingly trivial cases. A man who promises a woman a fur coat in return for sexual intercourse, with no intention of fulfilling his promise, should not be guilty of rape, the court held. Likewise, a bigamist who 'marries' and subsequently has sexual intercourse with his second 'wife' whilst concealing from her that he is still married to another woman, should be charged with bigamy, but he should not be guilty of rape.
In asking the question whether Linekar would be convicted in Western Australia under s 325 of the Code, in view of the statutory definition of consent applicable by s 319(2)(a), Mr Syrota proceeded to identify a series of problems which too ready acceptance of that proposition might involve. He writes (340):
At first glance, the phrase 'a consent obtained by ... deceit, or any fraudulent means' seems to suggest that any deceit or subterfuge that in fact induces a woman to give a consent that she would not otherwise have given is enough to destroy that consent and render the man guilty of an offence under s 325. On this view, a man could be convicted, for example, if he persuaded a woman to sleep with him by pretending to be rich and famous, or to be in love with her, or by misrepresenting that it was his intention to marry her. By the same token Linekar's pretence that he intended to pay the prostitute would vitiate her consent and make him guilty under s 325, since it can safely be assumed that she would not have agreed to have intercourse with him had she known of his true intention.
There are however three difficulties with the view that virtually any false pretence (and not merely those which relate to the identity of the man or to the nature of the act) may negative consent and render D guilty under s 325. The first point is that this interpretation would render another offence in the Code, namely s 192(2) largely or perhaps wholly redundant. Section 192(2) ('procuring by false pretences') provides that it is a crime, punishable by 2 years' imprisonment, for a person:
[Further], 'by any false pretence [to procure] a woman or girl, who is not a common prostitute or of known immoral character, to have unlawful carnal connection with a man, either in Western Australia or elsewhere'.
As with the corresponding English legislation, it has long been established that any false pretence is sufficient to bring D within this section, provided of course that the pretence actually induces the woman to engage in sexual intercourse. Clearly there would be little point in retaining this offence if any false pretence was also capable of bringing D within the ambit of the offence of sexual penetration without consent under s 325. This suggests that the notion of 'deceit, or any fraudulent means' in s 319(2)(a) must be given a somewhat narrower interpretation which would cover only some but not all, types of false pretence. This approach would ensure that s 192(2) had a different and wider ambit than s 325 and that it was not subsumed by it.
The second point relates to s 202 of the Code. This section makes it clear that a man can be convicted of procuring a woman to have sexual intercourse by false pretences, contrary to s 192(2), even though the woman consents to the intercourse. Section 202 states:
It is no defence to any charge defined in s 192, that the act of the accused person by which the offence was committed was done with the consent of the person with respect to whom the act was done.
It seems to be implicit in this provision that there must be at least some types of false pretence which may induce a woman to have sexual intercourse with a man, but which do not vitiate her consent to it. An example would be that given by Wills J in Clarence where a man knowingly gives a prostitute 'bad money' (eg, a forged cheque or counterfeit currency) in order to procure her agreement to have sex with him. As Wills J stated, it would be 'childish' to argue that the prostitute did not consent to intercourse merely because she had been duped into thinking that she had been paid for her services. However, if this type of pretence does not negative consent for the purposes of s 192(2) it must surely follow that it does not negative consent for the purposes of s 325 either. Since s 325 requires proof of sexual penetration without consent, it follows that in Wills J's hypothetical case, the man cannot be convicted under this section.
The third point concerns the wording of s 325. This section applies where a person 'sexually penetrates another person without the consent of that person'. How are those words to be interpreted? The answer perhaps is to be found in the High Court's judgment in Papadimitropoulos which although it dealt with rape and common law, appears to establish a principle which applies equally to the interpretation of s 325 of the Code.
Later, at 344, the author summarises his position:
To sum up: whilst the position is certainly far from clear it is suggested that the complicated definition of 'consent' in s 319(2)(a) does not significantly alter the law from what it was previously understood to be in this State and from what it is still understood to be in common law jurisdiction such as England. To vitiate consent, and bring the defendant within s 325, the fraud must relate either to the identity of the man or to the nature of the act. Other frauds which do not vitiate consent, can be dealt with either under s 192(2) or s 409. ...
With respect, I consider that Mr Syrota has correctly identified powerful objections to the acceptance of the meaning of s 319(2) now advanced by the respondent. The province and scope of the offence under s 192(2) of the Code is a substantial impediment to the adoption of the respondent's submissions. The difficulty remains: what is the proper interpretation of s 319(2)?
Addressing the same topic and reviewing the previous articles of Mr Syrota, Professor N Morgan, writing in (1996) 26 University of Western Australia Law Review 223 under the heading 'Oppression, fraud and consent in sexual offences' also discusses Papadimitropoulos, Linekar and Mobilio and adopts several of the arguments already mentioned in the Syrota articles. When speaking of s 319(2) and the meaning of 'free and voluntary consent', Professor Morgan observed that although the Murray Report anticipated a broad reading of this section and specifically criticised the result in Papadimitropoulos, writers disagree on whether the language of s 319(2) actually leads to a different approach. On the one hand, Syrota and Edwards, Harding and Campbell adopt what may be termed the 'narrow view', that the common law approach still largely applies. On the other hand, Fisse and Bronitt have taken the 'wide view' of s 319(2)(a) that any fraudulent behaviour which induces a person to have intercourse will vitiate consent. Professor Morgan concludes, at 240, by saying:
I have argued that in order to give effect to the purpose of reforms to the law of sexual assault, the courts must ensure that juries consider, as a question of fact, whether intimidatory and oppressive behaviour has vitiated an apparent consent. However, the courts must reject the wide view that any type of fraud can vitiate consent; such a view is unworkable and would generate many practical difficulties. Similar problems confront the notions of unconsionability and fraud as to the moral quality of an act. It has therefore been argued that the courts in Western Australia should adopt legal rules which delimit the situations in which fraud vitiates consent and should not regard this merely as a question of fact for the jury. It is suggested that the best approach is for the courts to rework the common law rules. Once it is recognised that the proper focus is the defendant's fraud rather than the victim's mistake, the law can readily accommodate a conviction on facts such as Mobilio.
As Professor Morgan again writes, the legislation, including s 319(2) designed to update and simplify the law relating to sexual offences (223):
has not adequately resolved the conundrum of when consent is vitiated by fraud. In particular, it is debatable whether the courts would employ the common law approach that fraud will only vitiate consent if the victim is mistaken as to the nature of the act or as to the identity of the actor.
Of particular concern to this author was the problem presented by cases where a complainant is deceived into agreeing to sexual contact because of some fraud or misrepresentation associated with medical reasons. Professor Morgan's conclusion was that in the absence of more detailed statutory provisions the concept of fraud as to the nature of the act is the best mechanism for explaining when fraud 'vitiates' consent and that, if properly applied, this would lead to a conviction in bogus medical examination cases. E J Edwards, R W Harding and I G Campbell, in their joint work The Criminal Codes, Commentary and Materials (4th ed, 1992) 542, took the view that the definition of 'consent' in s 319(2) did not alter the conventional common law approach. The opposing view is adopted by S Bronitt: Rape and Consent (1992) 16 Crim Law J 289, 301 and by B Fisse: Howard's Criminal Law (5th ed, 1992) 180 ‑ 183.
There are compelling practical considerations to confine the scope of fraud or deceit under s 319(2) to avoid inclusion within the offence fraudulent deceptions which do not go to the nature or quality of the Act or its purpose or to the identity of the person proposing the sexual activity. Similar considerations arise from the need to retain scope for traditional offences, such as bigamy (this is an offence under Commonwealth law (Marriage Act 1961 s 94)). Also there are other cases of fraud inducing other forms of sexual activity which, while undoubtedly properly characterised as criminal offences contain more particular elements and attract different graduated penalties.
There have been a number of analyses of the principles when it comes to consent in sexual cases undertaken by various Law Reform Commissions. The Law Reform Commission of the ACT in its Report No 18 of April (2001) recommended that legislation should be introduced so that for these purposes 'consent' should be taken to mean a consent freely and voluntarily given with the knowledge of the nature of the act in question and the identity of the other person or persons involved.
With regard to the role of fraudulent misrepresentation, the ACT report observed, in pars 35 and 36 as follows:
35.Whilst honesty in relationships is obviously desirable, most people would baulk at making it a criminal offence to engage in any duplicity even if with a view to inducing consent to a sexual intercourse. There is a vast range of flattery, boasting and hyperbole that might fall within such a wide description but not necessarily warrant a criminal prosecution, as in the example of 15‑year‑old telling a rock star she was over the age of consent. Nonetheless, it is important to ensure that appropriate criminal sanctions are available in some circumstances where consent is induced by fraudulent misrepresentation. One such situation is where the representation falsely suggests that there is some medical need for the relevant act. Another is where a person has been deceived into believing that there has been a valid ceremony of marriage between the complainant and the accused. Such conduct involves an extraordinary betrayal of trust.
36.In cases of this kind it might be argued that any apparent consent has not been freely and voluntarily given and that the act of engaging in sexual intercourse in those circumstances could be prosecuted as rape. However, a contrary view has been taken (Papadimitropoulos). In any event, the few cases that have been reported suggest that misrepresentations of that kind may tend to arise primarily in the context of particular professional, ethnic or religious groups and that there may be some advantage in the enactment of a new section specifically criminalising such behaviour.
The report then went on to recommend the introduction of a specific offence dealing with such instances.
When speaking of those cases where, at common law, convictions of rape have been sustained where the offender had pretended that he was engaging in some form of spurious medical treatment, or assisting in singing lessons or some other similar deception, Morland J said in R v Linekar [73]:
In our judgment, it is the non-consent to sexual intercourse rather than the fraud of the doctor or choirmaster that makes the offence rape. Similarly, that ingredient is not proved in the husband impersonation cases because the victim did not consent to sexual intercourse with the particular man who penetrated her. We venture to suggest that at common law it is immaterial whether the penetrator is impersonating a husband, a cohabitee or a lover, as is supported by the Criminal Law Revision Committee.
The crucial point is whether the person concerned freely and voluntarily consented to the act of penetration. If the consent to penetration was obtained because the nature and purpose of the penetration was misrepresented, for example, as some form of necessary medical therapy, then the consent would not be effective by reason of the operation of s 319(2). If, however, the consent to the penetration was fully comprehending, realising its sexual nature and purpose and the person who wished to engage in it, it is difficult to see how that could not be free and voluntary because there had been some deceit or fraudulent practice about some antecedent matter, such as the price which was to be paid to the woman for the agreed activity. The use of the phrase 'antecedent matter' in Galliene's case seems, with respect, to be an appropriate reference to that preceding negotiation which did not in any way distort or misrepresent the nature of the service which the appellant was hoping to purchase or the fact that he was the one who hoped to engage in it.
In the present case, it is clear that the alleged deceits by the appellant, Michael, however reprehensible, did not relate to nor induce any misunderstanding or mistake as to the identity of the appellant as the person who was to engage in the sexual activity; the precise nature of the sexual activity proposed and occurring, nor the nature and purpose of the activity, namely for personal gratification of the appellant. Because of the way in which the jury was directed in the matter and, obviously because they regarded the application of the law relating to consent in this area of crucial importance, it cannot be said that their verdicts can be explained solely by concluding that consent in this case was ineffective because of intimidation or threats alone, or in combination, to the exclusion of deceit or any fraudulent means.
The present case, of fraudulent impersonation of a police officer, has the potential to involve several of these concepts features which could render consent ineffective. Firstly, as already discussed, the false representation may or may not be a deceit or other fraudulent means by which consent is obtained.
However, impersonation of a police officer is, at least theoretically, capable of giving rise to actual or implicit threats or to intimidation, as was in fact finally argued by the prosecution. There was evidence to support that contention by statements from the two women that they proceeded to engage in discounting their price or engaging in sexual activity without payment because the accused had intimated that he would make trouble for them (presumably causing them to be arrested) in his capacity as a police officer. The appellant had denied this. It is clear that such threats or intimidation by a person falsely pretending to be a police officer might arise and in that case, although the deceit may not be a fraudulent misrepresentation or activity which would, by itself, make the ensuing consent ineffective, the intimidation or the threat which it implied, or with which it was expressly accompanied could itself make the consent ineffective. In that case, it is not so much the fraud or the deceit which makes the consent ineffective, but the intimidation or threats which accompany or follow from the fraud or false pretence.
In my view, in a case such as this, it is essential that this should be explained to the jury, lest a decision to convict be prompted merely by the fraudulent pretence or deceit, rather than by the existence of an express or implied threat or intimidation accompanying the fraud. This is especially important in a case where the accused, while admitting an earlier similar false pretence, denies making any implicit or express threat or engaging in any intimidation. The danger is that some members of the jury may consider that a conviction is justified merely upon proof of a fraudulent pretence or deceit, whereas others may correctly appreciate that if such a fraud or deceit did occur that might not be sufficient itself to make the consent ineffective and so go on to look for, and find, a basis for concluding that the fraud had actually given rise to a threat or intimidation. The possibility, therefore, is that some jurors may be disposed to convict on findings which would be insufficient to justify a conviction, whereas others may be satisfied that facts establishing liability did exist. The difficulty in the present case is that no direction along these lines was given although it was apparent that the jury had concern about the true significance of the issue of consent in the context of this case.
R v Brown (1984) 79 Cr App R 115 (119) demonstrates that unanimity of the jury on one of several possible ingredients of an offence is essential. But where there are several paths - involving no mutual inconsistency - towards the essential finding, so long as the essential finding is agreed upon by all members of the jury, the fact that they reached it by different methods does not deprive their verdict of full effect - see R v Clarke [1986] VR 643, R vWalsh (2002) 131 A Crim R 299 and Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41.
In the present case the submissions for the DPP were to the effect that the single issue before the jury was whether or not the sexual activity had taken place without a free and voluntary consent and that this single question of free and voluntary consent had been left to the jury. On this view, although members of the jury may have approached their decisions in different ways, their unanimous verdict indicated that they were agreed upon the essential and determinative issue. That would be satisfactory if it were possible to conclude that there had been no scope for the jury to reach the conclusions of guilt upon inconsistent or mutually exclusive processes of reasoning. However, as I have endeavoured to describe, if fraud or deceit in relation to matters inducing the acts of sexual activity, but not relating to their identity or purpose or to the identity of the accused, are not sufficient to justify conviction because of the Papadimitropoulos principle that would not be so. Unless it can be concluded that the verdicts of the jury can only connote that, in addition to finding that there had been a fraudulent misrepresentation or a deceit, that fraud or deceit had carried with it a threat or intimidation of the victim, one cannot safely conclude that all members of the jury were agreed upon a verdict which accepts that the essential ingredient of the alleged crimes have been proved.
As was said by Kirby J in Director of Public Prosecutions (NT) v WJI at 76 [104]:
Sexual intercourse without consent is a very serious offence and an affront to the human rights and human dignity of the victim. However, conviction of that crime carries very serious consequences for the liberty, life and reputation of the prisoner.
Particularly, as in Western Australia, where there has yet been no introduction of a less serious statutory offence for cases which would fall short of the former common law code concept of rape, it is important that an offence against s 325 should not be assimilated with other less serious offences contained in s 192 and s 409(1)(e) of the Code to which Mr Syrota has directed attention.
Furthermore, it would be quixotic in the extreme for any person in the current age to ignore the inevitable, that there will always be, however unsatisfactory it may be from any moral viewpoint, many instances in which men or women engage in sexual intercourse with each other when that activity is preceded, and to an extent induced, by some form of deception such as 'I am not married'; 'I am not seeing anyone else'; or with false and exaggerated protestations of wealth, importance or status. Examples could be multiplied of promises being made which were never intended to be kept, and of facts or conditions concealed which, if revealed, would almost certainly lead to rejection. Conduct of this kind which I think can safely be said, has probably been common since the earliest times of recorded human history, however deplorable, has not previously been regarded as criminal, or at least so criminal as to justify a conviction for the most serious form of sexual offence prevailing from time to time. That is a powerful indication that such misconduct or deceit has not generally been regarded as criminal and it would be surprising indeed if, by such an indirect means, as the amendment to s 319(2) of the Criminal Code, Parliament had intended to effect such a far‑reaching change to the law which is likely to affect and criminalise types of conduct which had not previously been treated as the most serious of the indictable sexual offences.
Clearly, s 319(2) has made significant changes to the law. For reasons already given, a Holman defence would now be rejected, and it could never be suggested that mere submission by a woman to sexual activity by a man to which she was opposed, could constitute consent. However, it is an entirely different thing to conclude that what was plainly an active participation in sexual intercourse by a prostitute was non‑consensual because, by some form of misrepresentation, the woman agreed to the activity on the strength of the promise to be paid more money than she was in fact paid, or to be paid when in fact she was not paid.
It may be necessary for the full impact of the limits to s 319(2) to be worked out by the experience of cases involving unusual situations, such as the present. For example, would it be an unlawful sexual penetration for a recently deregistered medical practitioner to conduct a gynaecological examination of an unsuspecting patient who would not have consented, as she did, had she known that the person was no longer entitled to practice medicine? Or, in such a case, is the better view of s 325, to treat the conduct of the deregistered former medical practitioner as a breach of the provisions of the Medical Act and so subject to prosecution and penalty for an offence of that kind which such special legislation specifically addresses? I take the latter view.
For the present, therefore, I consider that the scope of deceit or any fraudulent means in s 319(2) should be treated as referring to those frauds or misrepresentations which deprived the person concerned of a full comprehension of the nature and purpose of the proposed activity or his or her legal status of the person as a spouse, or his or her identity as an acceptable sexual partner. In the present case, I do not consider that the appellant's deceptions of pretending to be a police officer by themselves constitute deceits or frauds which had the effect of making the consents given by these two prostitutes to his activities ineffective.
In my view, a ruling to that effect should have been made at the trial and the issue of consent or lack of consent arising solely from deceit or fraudulent means should not have been allowed to go to the jury. However, the questions of whether or not there had been threats or intimidation and, if so, of what kind and to what effect, are separate questions and not without their own difficulties as to the extent of the threats or inducements contemplated - see the Syrota article referred to in [357] above.
The jurors should have been directed carefully that if they were satisfied beyond reasonable doubt that the appellant had threatened or intimidated either or both of the prostitutes, and so obtained consent to sexual activity, that such a consent would not be regarded as effective at law, leaving him in the position where he could be convicted of sexual penetration without consent. However, as earlier noted, if the jury's conclusion was that such threats or intimidations were implicit and not express, or even more, that the victims had felt threatened or intimidated without the appellant realising it or realising that any of his actions had induced such fears or apprehensions, then the question of honest and reasonable mistake as to the existence of a consent by the complainants would increase in prominence and importance. In the present case the appellant plainly behaved as if the women were consenting and said as much to the police when interviewed. Accordingly, the possible existence of honest and reasonable but mistaken belief as to the reality of consent under s 24 of the Code would be a greater issue in the case if the consents were obtained by implied threats or intimidation.
Distraction in the present case occurs because the nature of the alleged deceit or fraudulent means, namely the impersonation of a police officer, is capable, as was suggested, of giving rise to other features such as threats and intimidation which might also render consent ineffective. That distraction can be avoided by postulating a somewhat different version of events, one which I emphasise is entirely hypothetical.
Take a situation where an authentic police officer, operating under cover, approached a prostitute and solicited her to have sexual intercourse with him. She, suspecting that the man might be a police officer and being unwilling to engage in her trade with a policeman lest it may involve her in trouble, asked him directly whether or not he was a police officer and was answered with a false denial. Having taken this step, the pair then agreed that the man pay $150 for 'the full service', the money was paid and sexual activity, including penetration, followed. In that example, it would be entirely true to say that the prostitute would not have engaged in sexual activity with the officer had she known the truth and that her consent to do so was obtained by his false denial that he was a police officer. The advantage of this example is that it is devoid of any implications of threat or intimidation or of the service being provided for less than the woman was willing to accept, instead, it concentrates entirely on a fraudulent answer to a question which did not concern the nature or quality of the act or the person who was to perform it. In my view, the deceit or fraud in this example is entirely associated with an antecedent matter. It does not in any way lessen the comprehension by the woman of what she was being solicited to do or who would do it with her.
It might be correctly said in the present case that the subject matter of contention between the appellant Michael and the two prostitutes was the price that was to be paid for their services. There seems to be no doubt that P would have consented unreservedly if the appellant had agreed to pay her asking price of $150, and for that matter that T would also have consented unreservedly if her asking price of $100 had been accepted and paid. As it was, each agreed to what then followed. In such circumstances, the deceit or other fraudulent means, if that is what led to the penetrations, should more properly be regarded as dealing with the antecedent matter of price because there was no lack of comprehension by either of these woman as to what the appellant himself desired of them.
A review
The historical progress of the development of the content of the crime of rape is comprehensively described by Williams JA in R v Pryor where it was traced from the 11th century through many statutory reforms. As his Honour explains, up until the late part of the 19th century, the critical element of the offence was the use of force rather than the absence of consent. So it came about that the impersonation cases which did not involve any element of force were, for some time, treated as being outside the concept of rape: see R v Jackson (1822) Russ & Ry 47; 168 ER 611 and R v Linekar. However, by 1885, English law was amended in a manner which tended to place emphasis on the concept of consent. This was further complicated by the rule recognised in R v Clarence and maintained until recent statutory amendment, that, by marriage, a woman was taken to have accepted any act of sexual intercourse by her husband as part of the status of marriage, regardless of whether she subjectively consented on any particular occasion. Further complications have arisen in relation to sexual activity where one of the parties has a sexually communicable disease and, in comparatively recent times, the prevalence of HIV/AIDS has added immeasurably to the significance of that issue.
I consider that the 1985 and 1992 amendments to these provisions of the Criminal Code were obviously intended by Parliament to deal with these emerging issues and with some perceived inadequacies in the pre‑existing law. It must be accepted that the reformulation of the offence of sexual penetration without consent now contained in s 319(2) and s 325 of the Code has achieved at least the following effects:
(a)the retention of the reform that a man could be convicted of an offence of unlawful sexual penetration of his wife even within marriage;
(b)the complete elimination of the Holman approach that grudging or tearful submission could amount to consent replacing this with emphasis upon necessity for free and voluntary consent coupled with the express stipulation that a failure to offer physical resistance does not of itself constitute consent;
(c)a broadening of the scope of fraud involving impersonation to expand it beyond a false pretence that the person performing the act of penetration is a husband, to any sexual partner of either sex or to any person, other than the accused, with whom the complainant would have been willing to engage in sexual penetration even if for the first time;
(d)to include as a deceit or fraud relating to the nature of the act or its purpose, those instances involving bogus medical treatment; or other deceptions concerning the purpose of the activity such as, for example, the singing teacher type of cases;
(e)to apply to the sham marriage variety of cases, such as Papadimitropoulos, because the deception there goes to the legal status between the two participants (ie marriage) and becomes tantamount to the fraud of impersonating a husband (or for that matter a wife).
Nevertheless, because of the need to limit the application of s 319(2) to avoid indiscriminate applications to acts of deceit or other fraudulent means going only to antecedent matters, such as representations about payment when dealing with prostitutes, or fraudulent blandishments intended to make a person more attractive, such as the wiles of a seducer, the full comprehension of the nature and the purpose of the sexual activity involved and agreed participation will not make that consent ineffective or not freely and voluntarily given.
None of this was explained to the jury in the appellant's case. The jury was not directed to consider whether or not the consents by P and T were freely and voluntarily given in the sense that each woman fully comprehended what Michael desired to do with them, that the proposed activity was for sexual gratification and had not been disguised as being for some other necessary plausible purpose.
Had the jury been directed in that fashion, it would have been open, on the facts of this case, to conclude that Michael's deceit, or fraudulent means, had been directed to and was only material to the discussions about price. If that was so, he could not properly have been convicted of any of these charges insofar as the allegations in the charges depended upon consent which had been given being ineffective because of the alleged deceit or fraudulent means. It would still have been possible, however, for the jury to have concluded that the deceit and/or fraudulent means had a dimension and effect which went beyond the antecedent matter of price and carried with it implied threats or intimidation. If they were satisfied of that, to the requisite degree of proof, then convictions for each of the offences would have been justified. However, these important distinctions were never explained to the jury and, for reasons already canvassed, one cannot be satisfied that their verdicts are founded solely upon a conclusion that the consents given by these two women were ineffective because of threats or intimidation by the appellant as there is a distinct risk that the appellant may have been convicted for conduct which could not amount to an offence within the meaning of s 325.
I would therefore allow these appeals, quash each conviction and order a new trial.
The appeal against sentence
It is necessary to treat the appeal against sentence either on the footing that, contrary to the conclusions which I have earlier expressed, the false representations by the appellant constituted deceits or fraudulent means which would have made the consents given by the two complainants ineffective, or that the conduct of the appellant involved threats and/or intimidation which made the consents given ineffective.
Immediately this produces a situation in which sexual penetration without consent as an offence created by s 375 is far broader and extensive than the previous offence of rape or analogous modern offences and may include, for example, cases of bigamy, false promises of intention to marry and a multitude of other less emphatic false promises or concealments. That realisation must be accompanied by the appreciation that although some forms of sexual penetration without consent are extremely serious and warrant the gravest punishment as did offences for rape there may be some which, while still serious, amount to seductions induced by fraud or deceit.
As the offence expands, so must the range of penalties expand, even if towards the less severe end of the scale. Because of this I am not prepared to accept the observations that any act of sexual penetration without consent would usually be expected to receive a sentence of 4 years' imprisonment, because I am certainly not satisfied that the learned judges who ventured those observations had cases such as this, or this wide scope of s 325, in mind.
The authorities relating to the principles which should be applied when dealing with a prosecution of appeal against sentence have been frequently stated and recently reviewed - see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] (Gleeson CJ and Hayne J) and [58] (Kirby J) and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672.
For all the reasons identified when dealing with the appeal against conviction, this was an unusual case and one which resulted in conviction because of the expansion of law by the amendments made to s 319(2) and s 325 of the Code. These give rise to a greater breadth of sentencing options and I am not satisfied that there has been any manifest error in the exercise of the sentencing discretion by the learned trial judge. I would dismiss the appeal against sentence.
It is, therefore, unnecessary to address the issues raised by the notice of contention filed on behalf of Michael on the appeal against sentence.
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