ON APPEAL FROM THE COURT OF CRIMINAL APPEAL Criminal Law-Rape-Ingredients of offence-Consent of prosecutrix-Given under
belief that she was married to accused-Belief fraudulently induced by accused- Whether consent vitiated so as to make accused guilty of rape-Crimes Act 1928 (No. 3664) (Vict.), S. 40.
Rape is carnal knowledge of a woman without her consent. Carnal know- ledge is the physical act of penetration. It is the consent to such physical act of penetration which is in question upon an indictment for rape. Such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. Once the consent is comprehending and actual, the inducing causes cannot destroy its reality and leave the man guilty of rape.
Where a woman consented to sexual intercourse under the belief, fraudu- lently induced by the man, that she was married to him,
Held, that the man was not guilty of rape. Decision of the Court of Criminal Appeal of Victoria reversed.
APPLICATION for leave to appeal from the Court of Criminal Appeal of Victoria.
John Papadimitropoulos was charged with that at Fitzroy in the State of Victoria between 13th and 19th June 1956 he had carnal knowledge of Dina Karnezi without her consent. He pleaded not guilty and was tried before the Supreme Court of Victoria by Gavan Duffy J. and a jury of twelve men. The jury returned a verdict of rape with mitigating circumstances and the trial judge sentenced the accused to be imprisoned for four years.
The accused applied for leave to appeal against the conviction and sentence. The application was heard before the Court of Criminal Appeal of the State of Victoria, constituted by Lowe, O'Bryan and Monahan JJ. which court, Monahan J. dissenting,
THE QUEEN.
on 23rd August 1957 refused the application.
From this decision the accused sought special leave to appeal to the High Court of Australia.
F. Galbally (solicitor), for the applicant. It is not disputed that fraud as to the nature of the act of intercourse or as to the identity of the person with whom intercourse is had can vitiate consent. The authorities are confined to fraud as to the essential nature of the act of intercourse. In the present case the prosecutrix consented to intercourse which she believed was marital intercourse. In fact it was extra-marital intercourse. Although there may be a great social and moral difference between the two things there is no essential difference in the nature of the act which would vitiate the consent given. Such an essential difference, it is submitted, must arise from the nature of the act itself. [He referred to State of California v. Skinner 1; Reg. v. Clarence 2.] R. v. Harms 3 is, it is submitted, wrongly decided.
Sir Harry Winneke Q.C., Solicitor-General for the State of Victoria (with him J. F. Moloney), for the respondent,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Papadimitropoulos v The Queen [1957] HCA 74
Case
[1957] HCA 74
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an application for special leave to appeal from a decision of the Court of Criminal Appeal of Victoria. The applicant, John Papadimitropoulos, had been convicted of rape with mitigating circumstances and sentenced to imprisonment. The charge stemmed from allegations that he had carnal knowledge of Dina Karnezi without her consent, with the prosecution arguing that her consent was vitiated by fraud.
The central legal issue before the High Court was whether a woman's consent to sexual intercourse, induced by a fraudulent belief that she was married to the accused, rendered the act rape. Specifically, the court had to determine if such a belief, fraudulently induced by the accused, meant that there was no actual consent to the physical act of penetration, or if it constituted a consent that was merely induced by fraud.
The High Court, in allowing the appeal and quashing the conviction, reasoned that rape fundamentally involves carnal knowledge of a woman without her consent. Consent, in this context, requires a perception of what is about to take place, the identity of the person, and the character of the act. The court distinguished between fraud that vitiates the very nature of the act itself (fraud in the factum) and fraud that merely induces consent to the act (fraud in the inducement). The court held that while the applicant's conduct was wicked and heartless, and the woman's consent was induced by a fraudulent belief in marriage, this constituted fraud in the inducement. Such fraud, the court concluded, did not destroy the reality of her consent to the physical act of penetration. Therefore, the act did not amount to rape, as the consent, though induced by deception regarding an antecedent matter (marriage), was actual and comprehending of the physical act.