Reg v Mobilio

[1990] HCATrans 294

~ J,, AUSTRALIA I.!' --))-))>)-!~~(.~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M20 of 1990

B e t w e e n -

THE QUEEN

Applicant

and

VINCENZO NICK MOBILIO

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

Mobilio 1 6/12/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 DECEMBER 1990, AT 10.17 AM

Copyright in the High Court of Australia

MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR C. FLATMAN, for the

applicant. (instructed by J.M. Buckley, Solicitor

to the Director of Public Prosecutions)

MR R. RICHTER, QC:  May it please the Court, I appear with

my learned friend, MR R.J. SARAH, for the

respondent. (instructed by Home Wilkinson & Lowry)

MASON CJ: Yes. Mr Black.

MR BLACK:	May it please the Court, I believe that the Court has already placed before it copies of our outline
of argument. Would it be convenient if I wait for
a moment?

MASON CJ: Yes.

MR BLACK:  If the Court pleases, before I come to the matter

that I must come to at the outset, namely as to why

special leave should be granted, particularly in

the circumstances of an application by the Crown,

might I make brief reference to the relevant

section and very brief reference to the essential

facts. I had not proposed to take the Court

through the facts, but simply to refer the Court to

the heart of the matter. The relevant section of

the Victorian Crimes Act is reproduced at page 226

of the application book and what it- does,

section 2A of the 1958 Act as amended by the

1980 Crimes Sexual Offences Act, is to extend the

common law notion of rape so that it now includes:

the introduction (to any extent)

in circumstances where

the introduction of the penis of the person

into the vagina ..... of another person

would be rape, of an object.

an object (not being part of the body)

manipulated by a person, either male or
female, into the vagina or anus of another
person, whether male or female.

So that the matters in issue here arise in the context of the statutory extension of rape and they

arise in circumstances where cases that were once

thought perhaps to be curiosities in the law now

have a modern practical application.

The Victorian section has a counterpart in New

South Wales in section 61A of the Crimes Act 1900

of that State and, without going to it, the

Mobilio 2 6/12/90

essential similarity is that it also extends rape

to the penetration by manipulated objects. The

Australian Capital Territory has adopted, somewhat

earlier, the New South Wales legislation to the

same general effect.

Apart from that, I think I am correct in

saying that in the other States the extension of

rape to cover manipulated objects has not, by

statute, occurred.

In very brief substance, what happened here

was that the respondent was a radiographer, not a

medical practitioner but a qualified medical

technician. He inserted into the vaginas of various women an object called an ultrasound transducer. My understanding - what I gather from

the evidence of such an object is that it works by
means of the emission of high frequency sound waves

in the region of 3.5 megahertz and the sound waves

travel differently according to the density of the

matter, the tissue through which they pass. It is

therefore possible, with computer technology, to

produce what is, apparently, a photograph, of the

tissues being examined.

The probe being used in this instance was what

was called a general purpose probe operating at

3.5 megahertz. It is an object of about

180 centimetres in length, with a cord coming out

one end. There was evidence that there are special

probes for intravaginal examinations that operate

at a higher frequency and they are a different

physical shape.

Now, the issues were summarized by the Full Court at page 226 of the application book in

these terms. The facts, generally, are summarized

at pages 219 to 226 and I will not take the Court

through that in view of the Full Court's findings.

What the Court said was, at page 226, line 25:

It was undisputed that the applicant by

manipulating the transducer introduced it into

the vagina of each woman.

There were eight women involved.

The case put against the applicant was that he

had intentionally introduced the transducer

into the woman's vagina knowing that he did so

without her consent. Each of the women had

given her apparent consent expressly or by her

conduct. The issue was whether the woman's

apparent consent was, to the knowledge of the

applicant, not a real consent.

Mobilio 6/12/90

It was contended for the

prosecution ..... that the apparent consents

were vitiated and not real consents because

each woman consented to the introduction of

the transducer only for medical diagnostic

purposes, but the applicant introduced it

solely for the purpose of his own sexual

gratification.

Now, that observation leads to a finding at

page 231 of the application book at about line 35

in these terms:

We consider that on the evidence it was open

to the jury to be satisfied that the women

consented to the transducer being inserted

solely for a diagnostic purpose but that the

applicant inserted it solely for his own

sexual gratification.

Their Honours identified the issue.

The parties are in contest as to whether on

such a finding it was open to the jury to find

there was no real consent by the individual

woman to the introduction of the transducer

into her vagina. This depends on whether it

could be found that the woman consented to an

act of an essentially different nature and
character from the act actually done by the

applicant.

The case turned in the end on the Full Court's

finding, erroneous, in our respectful submission,

that the nature and character of the act was

unaffected by the purpose, we would say sexual

purpose as opposed to a diagnostic purpose, in

respect of which the consent was given.

That is the issue. It is a very short,

important and precise issue that for reasons that,

of course, I will advance we say this Court should determine pursuant to the grant of special leave.

Now we, of course, have to face at the outset

the proposition, the fact, that the Court will only
grant special leave to appeal to the Crown in very

exceptional circumstances. The Court, as it will

recall, recently said that, or members of it said

that - there were, I must say, with respect,

different emphases - in Reg v Benz, 168 CLR 10.

The emphasis placed upon the exceptional

circumstances by Your Honour Justice Deane was, if

I may respectfully say so, very strong, as indeed many other members of the Court. Your Honour the

learned Chief Justice viewed the matter in a

somewhat different way although still stressing the

Mobilio 4 6/12/90

relative rarity of a successful Crown appeal.

Might I take the Court in a moment to some of the

precise passages in that judgment.

Now, accepting that we must show that the case

is, at least, exceptional, we say that it is for

two reasons which we would desire to develop.

Primarily, we say, it is exceptional because of the high public and general importance of the point in issue as to which the Full Court was wrong and

secondly, and we will develop this later, we say

that the circumstances relating to this case

somewhat diminish the strength of the reasons why

special leave is only granted to the Crown in

exceptional circumstances.

Might I then go to the primary argument on

this point and that is that the point has

characteristics which make it of, we would say,

unusual public importance. The starting point is,

in our submission, the nature and consequences of

what we would respectfully submit is the error on

the part of the Full Court. The result of the

Full Court's decision is, in our submission, that a

mistake as to purpose simply cannot affect the

nature and character of an act -

MASON CJ:  We need not trouble you on the public importance

of the point, Mr Black, at this stage.

MR BLACK:	May it please the Court.
MASON CJ:	Of course, in saying that it is subject to

whatever - - -

MR BLACK:  Indeed, yes. I will completely leave it and move

to the, if I -

McHUGH J: Speaking for myself, one matter that you have got

to overcome is the fact that the trial judge

apparently took the view that this verdict would be

why should the Crown by granted special leave to unsafe and unsatisfactory. In those circumstances, appeal?

MR BLACK: Because, Your Honour, the Full Court, having

found that it was open to the jury to find that the

probe was inserted solely for sexual purposes, and

that was their quite express finding on the matter,

must be taken to have taken a different view from

the primary judge, after a full examination of the

evidence, which my understanding is, was very fully

canvassed before the Court of Criminal Appeal.

DEANE J: Why do you say that? Page 247 would indicate that

the Full Court never came to that question.

Mobilio	6/12/90
MR BLACK:	Your Honour, they did not deal with the

inconsistency ground but, as my understanding is,

the ground was - indeed, Their Honours say -

extensively argued and that that involved a

substantial reference to the bulk of the evidence

in the case. Now, in the light of that what we

rely upon is the court's finding that it was open

to the jury to conclude that the act was done

solely for sexual purposes.

McHUGH J:	That would not mean it would not be an unsafe and unsatisfactory verdict simply because it was open to them as a matter of law to convict the
accused.

MR BLACK:  No, it would not, Your Honour. I accept that.

DAWSON J:  Was it a ground of appeal that the verdict was

unsafe and unsatisfactory?

MASON CJ:  There was one ground that was directed to that

point in relation to some of the verdicts.

MR BLACK:  Yes, some of the verdicts, but not as I recall

it - the grounds are reproduced in the supporting

affidavit at page 255. Certainly it was a ground

that the judge should have taken the case away and

His Honour's ruling on that is indeed reproduced in

the papers.

DAWSON J:	That is a somewhat different point, is it not?
MR BLACK:	Yes it is, Your Honour.
DEANE J:	Ground (f) is a straight safe and unsatisfactory

ground which applies to the only three convictions.

MR BLACK:	That is so. Your Honours, obviously I cannot argue here as to why the verdict was thoroughly
safe and proper on the evidence.  The Full
Court -

McHUGH J:	It is undoubted that the matter is a matter of public importance but you are seeking special leave
to appeal against a verdict of acquittal in a
criminal case and, speaking just for myself, it
seems to me that a factor that you have to overcome
is the fact that the trial judge thought that these
verdicts would be unsafe and unsatisfactory but
that he himself had no power on that ground to
direct a verdict.

MR BLACK: Well, Your Honour, all I can say is that

His Honour was not necessarily correct on that and

that would be a matter that could be, if the

respondent thought appropriate to argue it, argued

in the Full Court.

Mobilio 6 6/12/90

DEANE J:  It would have to go back to the Full Court

because -

MR BLACK:	It will have to go back any way, Your Honour.
DEANE J:	- - - they have not dealt with numerous grounds.

MR BLACK: With grounds, Your Honour, with respect, and

particularly the inconsistency ground.

DEANE J: Yes, that is the one I had in mind.

MR BLACK:  Yes, Your Honour.

McHUGH J: But, you see, this all counts against you.

MR BLACK:  I understand that, Your Honour.

McHUGH J: Because it just continues the use of State power

against the accused; who has already had a trial;

who has now been acquitted by a Court of Criminal

Appeal; you want to put him through an appeal here and, if you are successful, go back again before

the Court of Criminal Appeal.

MR BLACK:  Your Honour, I accept that, I accept it is a

component in the height of the hurdle that we must

overcome. I accept all that, but our ultimate

point is that all these matters, in our very

respectful submission, involve balancing a variety

of factors. The factors to which Your Honours

Justice Deane and McHugh have referred are, on the

authorities, very powerful factors, we accept that,

but there are very powerful factors in this matter
of the public interest and there are some matters

personal to the respondent in this case to which I

would now desire to address the Court which go on

the other side of the balancing equation. But I

accept the force - - -

McHUGH J:  Mr Black, we did grant to the Crown special leave

to appeal in Falconer in which a verdict was given

last week although the appeal was dismissed.

MR BLACK:  I was unaware of that, Your Honour.

McHUGH J: It is a case from Western Australia about

voluntariness and unsoundness of mind.

MR BLACK:  Your Honour, I am incorrect, I had heard of it on

the sort of broad basis but I was not aware of the

particular matter.

DEANE J: But non constat that special leave would

necessarily have been granted if the appeal were

going to succeed.

Mobilio	6/12/90
MR BLACK:	Your Honour, I still argue that the appeal should succeed, may it please the Court.

There are some matters that, in our

submission, weigh against, or somewhat diminish -

and I use the word "somewhat" advisedly - somewhat

diminish the effect of a successful appeal and a

remittal in this case.

The first is this, that, in our submission,

there is, indeed, a true distinction to be drawn

for these purposes between a verdict on an

acquittal by a Court of Criminal Appeal and the

original verdict of a jury. That was a point that

Your Honour the learned Chief Justice made in Reg v

Benz.	Your Honour Justice Deane was not of that
mind.	The matter is referred to in the judgment of

Your Honour the Chief Justice in Benz, 168 CLR 112, and we would seek to rely upon what Your Honour

said in that case.

At 112, at the top of the page, Your Honour

the Chief Justice said this:

But an appeal from a judgment of acquittal by

a Court of Criminal Appeal is not to be

equated with an appeal from a verdict of

acquittal by a jury:  R v Weaver. The latter,

unlike the former, is not sacrosanct.	As
Evatt J pointed out in Weaver:

"The verdict of acquittal entered by the

Supreme Court as a Court of Criminal Appeal,

whatever it may be in point of form, differs

greatly in substance from an original verdict

of a jury ... "

And then, over the page, at 113, reference is made

to Davern v Messel. That was the case dealing with

the Federal Court's powers on appeal, in these

terms:

In Davern v Messel Brennan J and I referred to

Friedland's comment with approval -

that is a comment by the learned author that, after

all, in these cases, it was the appellant - the

appellant meaning the accused - who sets the

appellate process in motion -

after calling attention to the observations of

the majority in United States v Wilson in

these terms:

"Although review of any ruling of law

discharging a defendant obviously enhances the

likelihood of conviction and subjects him to

Mobilio 6/12/90

continuing expense and anxiety, a defendant

has no legitimate claim to benefit from an

error of law when that error could be

corrected without subjecting him to a second

trial before a second trier of fact."

Now, that, in our submission, is the situation

here. What the respondent would face would be

another day, the vexation and the stress of another

appellate proceeding were the matter remitted.

But, the reality is that that is really all that

would happen to him. He does not face the

appalling prospect that is almost commonplace

around Australia in Crown appeals against

sentence - perhaps I say it too strongly to say it

is commonplace, but he does not face the appalling

prospect for which statutes in all the States and

territories provide of walking out of court with a

bond of some sort and walking out of the Court of

Criminal Appeal in custody. He does not face

that - although he faces much else, I concede -

because the sentence imposed upon him was a

sentence of imprisonment that was wholly suspended

and the suspension will expire, the time having

run, in February of next year.

Now, there was, I am bound to say to the

Court, a Director's appeal against sentence but I

am instructed to inform the Court that were special

appeal against sentence. It is probably inappropriate for me to say why the Director takes the view that that is appropriate. Whether the

leave to appeal granted and the appeal allowed the

appeal is in fact extinct and enlivenable or not I

perhaps need not address the Court but there was

one; it was not heard at the same time but it will

not be pursued.

So that in those circumstances, we submit that

the gravity of the observations that Your Honours

made about, essentially, practical double jeopardy

is somewhat diminished in the circumstances of this

case but I cannot say it goes away but the worse thing for an accused is the prospect of having a

trial and ultimate freedom and the freedom taken

away and that is not present in this case.

Might I then turn, if the Court pleases, to

advance the arguments as to why the Full Court was

in error in this case.

The starting point, in our submission, is the decision of this Court in Papadimitropoulos v Reg.

MASON CJ:  Mr Black, in the circumstances, it seems that we

should address the special leave question first.

Mobilio 9 6/12/90

MR BLACK: If the Court pleases.

MASON CJ:	It does not necessarily mean that we have to come to an affirmative conclusion about that, but before
I call on Mr Richter to respond on the question of
whether or not special leave ought to be granted or refused is there anything else you wish to say in
support of the grant of special leave?

MR BLACK:  Yes, there is, Your Honour. I would desire

briefly to develop the reasons	why this is not just
a matter of public importance,	but of, if there is
such a concept, special public	importance. The
reasons are these.

What the Full Court has said, as I think I

indicated before Your Honour stopped me, was that

mistake as to purpose cannot affect the nature and

character of an act so as to negate consent.

Their Honours deal with that. They recognize

that the nature and character of an act is relevant

to consent, but they find, because they eliminate

the concept of purpose, that these women consented

to the very thing that physically happened to them

and so they consented to an act of the relevant

nature and quality and therefore their consent was

real.

Now the consequence of that, in our

submission, is profound for this reason; that the

women have been held to have consented to something which, in our submission, is contrary to the common law as it developed in the 19th century and on into

this century, but it is not only contrary to the

common law, but whereas the common law, if our

submission about it is correct, was consistent with

general notions of what is consent in an area of

law that ought, if possible, to be simple and

readily understood. The Full Court's conclusion if

correct means that the common law is apart - there

is a divergence between commonly accepted notions

and what the law actually is.

That is not to say that it is not the law, but

where the argument is that the law and common

perceptions as to consent in an important area of
the law are the same, then, in our submission it is

particularly a case for the grant of special leave

so that this Court, as the ultimate Court of the

country, can determine whether in truth there is

that divergence. Now the same principles of course

would apply to a case of indecent assault in a

quasi medical situation - fondling of the breast

and so forth, or the insertion of a finger and so

forth.

Mobilio 10 6/12/90

The question is very important for some

practical reasons. The old medical treatment cases

which were discussed in Papadimitropoulos - in which, if leave were granted, I would take the

Court to - proceeded upon a basis that to the

modern reader seems very curious. The girls - the

young women - and some were girls - in those cases

consented to sexual intercourse, not knowing what

it was and believing it was something else,

although they obviously had perception of what the

physical act was. Now, they were curiosities.

Two things have happened in the last 10 years

or so - maybe longer - the Parliaments, three of

them, as a matter of social policy, have extended

the protection of the law of rape to the protection
of a person's integrity from assault by an object,

a physical object that may be and almost invariably will be inherently non-sexual, such as a diagnostic

probe.

At the same time, it is apparent from the

evidence in this case that medical advances quite routinely may involve the insertion of non-sexual diagnostic objects into people - usually women -

for diagnostic purposes. So, whereas the old

common law cases were curiosities, perhaps read by

law students and of no practical importance, the

common law as truly declared in those cases, is

.available and ready to be put into practical effect

in something that is of great modern importance.

There is another aspect to it: it is, I would

respectfully submit, a matter of general knowledge

that preventative medicine, in respect of certain

conditions of women, is encouraged and that

involves regular diagnostic gynaecological

examinations. So that the matter, whereas once

curious, is now practical and it is a live

practical problem.

The second point is this, and I wish to make

this submission with delicacy because all crime -

one cannot say that some areas of the criminal law

need to be more right than others, but accepting

that, it is in a sense what I do submit because the

crime of rape is, in our respectful submission,

particularly an area in which the law should pursue

its true course and it is for this reason, that the

law of rape seeks to protect the integrity of

persons, it deals with matters that are inherently

delicate and intensely personal.

It is one matter for the law relating to, say,

theft to deviate from its true course so that one

cannot understand why the person who stole one's

video recorder or whatever the fashionable object

Mobilio 11 6/12/90

of theft is, why the person was not guilty - video recorders or looking at other ones - yet it may be even one matter to not be able to understand why

the law did not provide for a particular

consequence if someone gets a punch on the nose

because one can perhaps usually get over a common

assault, but this is a matter so intensely personal

and so intensely the subject of the protection of

the law that a deviation from the true course is,

in our submission, something that calls to be

corrected.

The other matter is this, that if the law

deviates from its true course in matters of, say,

property, they are not likely to excite a great

deal of concern, but if the law deviates from its

true course in a matter of personal concern to a

large class of persons and if that deviation is
seen to represent a departure from what ordinary
notions would suggest, particularly in the area of
consent, then it is important for the general
administration of justice and general confidence in

the law that that deviation should be corrected

ultimately by this court if there is no other place

to correct it.

TOOHEY J:  Part of the answer to that area of concern may

lie in the way in which the Act has dealt with the

offence, by borrowing the common law notion of
rape, where the analogy may not be a truly
applicable one in the sort of situation with which
we are concerned here and it may be that the matter
could have been put beyond doubt by defining rape

in the circumstances that we are concerned with in

such a way as to make it clear that it includes

anything that is done by reason of a fraudulent

misrepresentation.

MR BLACK: There is a section in the Act -

TOOHEY J: Yes, I know there is a section, but what I am

statutory definition, rather than by borrowing the	suggesting to you is that if rape had been defined in the circumstances here, by a comprehensive
common law notion of rape, perhaps the problem
would not have arisen.

MR BLACK:  Your Honour, if I may answer Your Honour

directly - - -

TOOHEY J: But it does not dispose of your argument, but it

might point to the future.

MR BLACK:  Indeed, Your Honour, but may I respond in this

way? The legislature in doing what it did was

expressing, in our submission, a social value, and

that is that any unconsented to penetration of a

Mobilio 12 6/12/90

person - in this instance, vaginally - is to be

treated in a particularly severe way as a matter of

social policy, and if that is so, then, in our

submission, there is no difficulty in applying the

common law as it developed in the 19th century -

the rape notions of consent - in the modern

context. But one would always, Your Honour, have

to accept that so many of these Acts might have

been differently drafted.

McHUGH J:  Has Victoria got any equivalent to the statutory

offences which were created in New South Wales in

the last century and are still there today, I

think, which were in terms that any person who by

false pretences or fraudulent means, induces a

woman to have carnal connection - - -

MR BLACK:  Yes, it does, Your Honour. It is referred to

briefly, indeed, by the Full Court in the end of

Their Honours reasons - - -

TOOHEY J:	Page 247, Mr Black.
MR BLACK:	Yes.  Your Honours, there is such a provision

that the penalty is less; it is not, of course,

rape, and there are some problems with it, as the Full Court points out in this case. There is the question of corroboration, but perhaps one can pass

from that, but the sexual penetration, as defined,

is otherwise than as part of some generally

accepted medical treatment. Now, that raises an

issue in this case. There is no doubt that at

least with a special vaginal ultrasound probe, it
is a generally accepted part of medical treatment.

There may be a debate as to whether the general purpose probe is proper to be used for that

purpose, as to which I think there was conflicting

evidence below.

So, it does not solve the problem. That

question, in fact, was agitated in Williams' case

in the 1920s - the choir master case, and it was

argued then that the corresponding English

provision really meant that it was not rape, and

also more recently in New South Wales, in the case

of Gallienne.

McHUGH J: Yes, I was counsel in that.

MR BLACK:	Your Honour was, I think, successful.
McHUGH J:	No, unsuccessful.  It is the story of my career

at the Bar.

MR BLACK:  My duty, Your Honour, nevertheless, to mention

the case. The point did not succeed in that case,

Your Honour.

Mobilio 13 6/12/90

There is one final point on the public

interest aspect and it is this: not only are we

dealing here with an offence that deals with

something that is intensely personal but in the

practical application of it in facts such as this

where it is likely to arise, the law deals with

circumstances of exceptional vulnerability because
a person undergoing that sort of medical

examination, unless he or she - and it will almost

generally be she - implicitly trusts the examiner,

the person is totally vulnerable. It is just the

most vulnerable thing one can imagine. I will not

develop it; it is just utter vulnerability.

The law, in those circumstances, in its

protective role, should take its true course, as

Your Honour the learned Chief Justice said was one

of the abiding responsibilities of the Court in

Benz's case. For those reasons we submit this case

for special leave. If the Court pleases.

MASON CJ: Thank you, Mr Black. Yes, Mr Richter.

MR RICHTER:  If the Court pleases. A summary of the

respondent's submissions has been handed up to the

Court.	Does the Court desire a moment to peruse
those?

MASON CJ:	I have read it for my part, Mr Richter.
MR RICHTER:	Thank you.

MASON CJ: Yes. Perhaps you might allow an opportunity for

some members of the Court to read it. Yes?

MR RICHTER:  If the Court pleases, we would simply seek to

take up the two heads that our learned friend

developed and if we can take the second one first,

because it is simpler to dispose of, it is this:

our learned friend submits that the effect of a

successful	- the grant of special leave to appeal
are diminished as against the respondent, when one	and a successful appeal in this Court, the effects
compares the effects in other cases, for example in
Benz's case. In our respectful submission, our
learned friend's argument is misconceived, because of the following: if special leave were granted by
this Court and if the applicant was successful, it
would have the effect of a remittal to the Court of
Criminal Appeal in Victoria, to determine the other
grounds. Now it is clear or reasonably clear that
the respondent in this Court, but the applicant in the Court of Criminal Appeal, stood a pretty good
chance of having his conviction quashed. The
question then would have arisen whether or not a
retrial ought to be ordered. Of course, if he
succeeded on the basis that the verdicts were

Mobilio 14 6/12/90

unsafe and unsatisfactory, that would dispose of it
and this is a matter which is not in the judgment

but was developed in argument and our learned friend, Mr Flatman, who was in the case, will

correct me if I am wrong.

It appeared very likely that the learned trial

judge's direction on the definition of "consent" in

ways that do not affect the central issue before

this Court, was subject to error and we were given

the opportunity of amending grounds of appeal to

permit the conviction to be quashed on that basis.

The learned presiding judge His Honour

Mr Justice Crockett, of course, at that stage

pronounced that if we were to be successful on that

ground, or indeed on some of the other grounds, it

would require a retrial rather than the entry of an

acquittal and, moreover, the learned presiding

judge also enunciated the proposition that a future

trial judge, if a retrial were to be had and if the

then applicant was convicted, would not be bound to
make the same findings of fact in respect to the

motivation of the then applicant.

So, that if he were to be convicted at a

retrial it was not be gainsaid that he would get a

suspended sentence and that was done because the

learned trial judge, having regard to the apparent
inconsistency and the unease that he felt about the

verdicts of acquittal on some and conviction on the

others, compromised the basis upon which he felt
that the jury convicted on some, acquitted on the
others, by saying that in the three instances he
was going to act on the basis that the then

applicant's motives were not in fact sexual

gratification but experimentation in the technique.

Mr Justice Crockett, the presiding judge at

the Court of Criminal Appeal, found that that was a very awkward way to compromise the verdicts for the purposes of imposing sentence and that a future

trial judge would not be so bound so that the

applicant, in this instant, faces the following

position. It is well enough for our learned friend

to say that they would not be submitting in the

Court of Criminal Appeal that their appeal as to

sentence should go forward. That, of course, would
only apply in the event that Mr Mobilio were to be

unsuccessful in the Court of Criminal Appeal but if

he were to be successful in the Court of Criminal

Appeal and the omens were all that he was going to

be successful, the only question was whether it was going to be for a quashing or for a retrial, then a new trial judge would not be bound to keep him out

of prison.

Mobilio 15 6/12/90

So he stands the following prospect: that if,

indeed, he is successful on one of the other

grounds, and it would have to be one of the other

grounds if special leave was granted and the

respondent succeeded, he would then face the

prospect of having to argue in the Court of

Criminal Appeal for a quashing of the conviction on other grounds. If successful on some grounds, not

on others, he faces the possibility of a retrial.

If sent for a retrial he faces the prospect of a possible conviction and a possible term of

imprisonment, and that possibility is magnified by

the sort of public airing and public concern to which our learned friend has indeed adverted in terms of articles in newspapers and the like.

So that the second limb of our learned

friend's argument is, in fact, not correct, but in

this case creates an even more tortuous course of

trial and suffering for the respondent, because the

future becomes all that much more uncertain. But

one thing is certain: the consequences for him are

exceedingly serious.

Even if he were not ultimately to be

retrialed, convicted and go to prison but, for

example, if his application to the Court of

Criminal Appeal was in the end dismissed, he would

still stand convicted and convicted of rape which,

in his case because of his profession and need to

be unconvicted of rape, would spell the end of his

professional life.	Now, that is a serious
consequence.	He would not be able to practice
again as a radiographer.	No one would employ him

and that would be the end of it. Not only that, he

would wear the stain of a rape conviction and would

forever have to explain the fact that he did not

assault a woman in some dark alley and use force,

battery and other means, but that it was a case of

the insertion of an ultrasound probe. The stain of

a rape conviction is a particularly serious matter

for someone in his position as, indeed, it would be

for anyone.

As to the first limb, so far as the unusual

public importance that is asserted by our learned

friend, we say that he is wrong, with respect, to

that as well. He is wrong because the judgment of

this Court in Papadimitropoulos v Reg was a

judgment which construed the development of the

common law of rape as it had reached the stage by

the time this Court came to deliver its judgment in Papadimitropoulos v Reg. Likewise, the judgment of the Court of Criminal Appeal in Victoria is based

on common law.

Mobilio 16 6/12/90

The only thing the statute does in Victoria to

substitute "instrument" for "penis", in so far as

matters are relevant here, but it does not tinker

with the common law interpretations of consent as

adumbrated in this Court in Papadimitropoulos and

those notions are clearly correct.

Now, if it were a matter of the Court of

Criminal Appeal striking out upon a different

direction, a new direction, and construing a

statute in an important sense, in a relevant and

material sense, and that construction of the

statute was wrong, that would be something else,

but this is not what the Court of Criminal Appeal

was about in this hearing. What it was about was

to determine what the common law was and to

determine that the Act, in fact, had no impact on

the common law concepts of consent, purpose,
mistake and the like, but that, indeed, it
substituted an instrument for a penis by way of an

extension.

We would say this: at common law, a mistake

as to purpose cannot affect the nature and

character of an act where the allegation is one of

rape. This is what Papadimitropoulos decided. If

it could not affect the nature and character of the

act with respect to penile penetration, it cannot

affect the nature and character of the act with

respect to instrumental penetration.

The exposition of the common law in

Papadimitropoulos v Reg makes it clear that that is

the situation with respect to penile penetration.

The purpose cannot affect the nature and character

of the act.

DAWSON J: Is there any difference between purpose and

motive?

MR RICHTER:  No, and that was one of the arguments we were

going to develop. In one respect, what the Court

of Criminal Appeal did when using the word

"purpose" on the one occasion where it seems to be

of significance, it was really referring to a

situation of what is in the mind of the then

applicant, what it was he was trying to achieve.

To the extent that "purpose" may mean more than

what it is that the accused is on about then, we

would say, that is not a concept which is material

to the crime of rape. To the extent that it does

not conceptually go beyond what it is that the

accused is about, there is no distinction of any

merit, we would submit, between the motion of

motive and purpose.

Mobilio 17 6/12/90

TOOHEY J:	Mr Richter, on the question of what was in the accused's mind, just by way of information, does
the Victorian practice permit an accused who is giving an unsworn statement, or making an unsworn statement, to be led through that statement by
counsel?

MR RICHTER:  Yes. By virtue of recent amendments where an

accused person is represented by counsel and does

not desire to give evidence on oath or stand mute,

he gives what is now described as unsworn evidence

and he is asked questions by his counsel in the

same way as he would be led in-chief if giving

evidence on oath. If he is unrepresented, the old

option of making the pure and simple unsworn

statement is retained.

Now, we would submit this, that the case is

not of unusual public importance because it really

does not affect other areas of the law than rape.

It does not really affect indecent assault, we

would say, and a proper reading of

Papadimitropoulos and a proper construction of the

judgments in the Victorian Full Court would make it

clear because the concept of rape was always bound

up with the notion of sexual intercourse or carnal

knowledge. It was the having of carnal knowledge

without consent that was rape, or having sexual

intercourse without consent that was the rape.

McHUGH J: But it must be a question of very considerable

public importance, must it not, as to whether or

not facts such as these amount to rape, not only

for the purpose of the law of Victoria but for the

purpose of the law of New South Wales?

MR RICHTER:  In our respectful submission, it is not unless

one is considering current community attitudes as

to what might be desirable for the legislature to

do in the future. We would say that in terms of

the law the law is settled and is clear and does

not admit of the extension that our learned friend

argues for and that from the point of statutory

McHUGH J: Well, that is the question and that does not mean

it is not a question of public importance.	But, if
you are right, then special leave would be	refused
on the ground - - -

MR RICHTER:	Your Honour, with respect, if I were here seeking special leave to appeal in a case of murder
where the law was quite clearly defined in certain
categories and had been considered settled for a
long time and I sought to argue that because of the
public clamour for the fact that euthanasia really
ought not to be treated as murder, this Court ought

Mobilio 18 6/12/90

to grant special leave so it could reconsider the

law of murder, I would have thought, with respect,

I would get very quick shrift. This is the

equivalent of what is being sought to be done by

our learned friend because we say the law is clear
and settled; it is the common law which is clear
and settled; it is the common law with which the

Full Court in Victoria dealt and it is the common

law with which this Court deals.	What the statute
did not do -

DEANE J: But, assume against yourself that the Court,

having had the benefit of reading the judgment of

the Court of Criminal Appeal and having heard what

you have said, is not persuaded that the point is a hopeless one, would you really dispute that it is a

point of considerable importance?

MR RICHTER:	No, I would not under these circumstances. of course, argue that one cannot give that reading to the decision, but if that reading was taken up	We,
as a reasonable possibility rather than merely

something that is fanciful to some extent then we

would not argue that special leave ought to be

refused because then it would become a matter of

special importance. Our submission is really that

the law is so settled that that does not arise.

DEANE J:  When you say you would not argue, you mean because

the point was unimportant. You are not meaning you

would abandon your argument that special leave

should be refused in any case?

MR RICHTER:  No, aliunde, no, but we would certainly not

argue that it is not a matter of considerable

public importance. Now, our learned friend, when

raising the issue of the special public importance,

raised the notion that technological advances have

meant that we really ought to go back and

reconsider the old medical cases and whereas this

Court in Papadimitropoulos, in effect, construed

them as meaning a particular thing, we now ought to

look at them afresh and seek to impose them.

Could we, with respect, remind the Court that

the invention of an ultrasound probe did not launch

a new era of instrumental interference with the

sexual organs of females. Indeed, the vaginal

speculum, as we understand it, was well known in

the 19th century and various forms of instrumental

penetration for the purposes of medical examination

were known prior to that. we have not studied up

the history of gynaecological instruments of application but it is our understanding that instrumental use in the vaginal examinations has

been around for a good deal longer than the

20th century. So that that, we would say, is not

Mobilio 19 6/12/90

something that introduces a new element into the

equation.

BRENNAN J: But it would be right to say, would it not, that

the problems of informed consent are now much more

acutely problems of the law than they were one

hundred years ago?

MR RICHTER:  Yes, Your Honour. Indeed, in certain areas,

for example, suits for medical malpractice and the
like, but in the sphere of rape law, for example,

the primary requirement, we would say, is one of

certainty. The law has been settled and certainly,

since Papadimitropoulos, the statutory amendments

have not affected it and the notion of informed

consent cannot be imported into the sphere of rape

law. It may be into indecent assault, because that

is not defined by reference to the concept of

sexual intercourse or carnal knowledge, but it is,

in our respectful submission, not apposite in rape,

which was always defined by reference to carnal

knowledge or sexual intercourse and the

understanding that was required to give the

character to the act was that it was an act of

sexual intercourse or sexual penetration. Now,

what the amending statute did not do was to define

"instrumental penetration" as sexual intercourse or

carnal knowledge. It did not do that at all. Had

it done so, then the question might have arisen,

but it did not do so. All it said was that - and the significant words of the amending section are the words "in circumstances where the introduction

of the penis would" constitute rape, the

introduction of an instrument constitutes rape.

But it did not say that the introduction of an

instrument constitutes sexual intercourse or carnal

knowledge.

It is around the concepts of sexual

intercourse and carnal knowledge that the law of

rape was developed and was pronounced on

authoritatively in Papadimitropoulos v Reg.

BRENNAN J: Will not the law on this offence be developed

around the concept of consent; that is, consent to

the introduction of objects?

MR RICHTER: 

We would submit that it will not be developed

because the law as settled in Papadimitropoulos is
immediately and certainly understood in its

application to instrumental penetration.

BRENNAN J: 

I understand the argument but once you get to

the stage of saying that that may not have the

precise analogy in cases dealing with common

assault, it seems to me that the problem

immediately arises as to whether this offence is to

Mobilio 20 6/12/90

be characterized as closer to rape or closer to

common assault in the common law senses of those

terms, although, obviously, statutorily it is

called rape.

MR RICHTER: In our respectful submission, the amending

legislation does not go to redefine the notion of consent in a way that aligns consent in rape with

consent in assaults. It does not do that.

MASON CJ: It seems to me the argument is now straying into

the substantial question, Mr Richter, and there
seems little point in exploring it further at this

stage.

MR RICHTER:  Indeed. The real submission is that the law is

certain and its application is certain. If the

Court feels that it is uncertain, and that the

Court of Criminal Appeal has rendered it uncertain,

then indeed we would say it is a matter of general

importance - of great general importance - for the

law of rape but we would then submit that, in these
circumstances, having regard to the submissions I
made with respect to the second argument about the
consequences of a grant of special leave, they are
serious and the Court ought not to depart from its
course in other cases, including Benz's case. If

the Court pleases.

MASON CJ: Thank you, Mr Richter. There is one question I

did want to ask you and that is this: if I can

take you to the judgment of the Court of Criminal

Appeal at page 247 where there is, at line 9, that

reference to the view that the trial judge appears to have taken that on the evidence before the jury

any conviction would be unsafe and unsatisfactory,

on what is that statement based? In looking
through the application book I have not been able

to identify what the foundation for the statement

is.

MR RICHTER:  During the course of the trial and in arguing

about sentence, the learned trial judge expressed

misgivings about the jury's verdict because he

found that there was an inconsistency which struck

him in the acquittal, for example, in the one case

where there was evidence that the use of the

ultrasound probe could not be medically justified -

evidence across the board - the jury, nevertheless

acquitted. In all the other cases the medical

evidence went on the basis that a jury could find

that it was medically appropriate and yet in some

there were acquittals and in some convictions. He

felt uneasy about the apparent inconsistency which

was not really an inconsistency in law in the Mraz

sense, and so that was discussed extensively during

the plea and over a number of days. In his report

Mobilio 21 6/12/90

to the Court of Criminal Appeal he reported the

misgivings about the safety and satisfactoriness.

DEANE J: It seems to go a bit further because the next

sentence is that he decided that in view of

Attorney-General's reference he was not entitled to

act on his doubts before verdict and direct a

verdict of acquittal.

MR RICHTER: Yes, indeed. Although there was -

MASON CJ:  Were the remarks made on sentence or were they

made at an earlier stage?

MR RICHTER: Those observations, my recollection of reading

the transcript, were made at a stage after the jury

had been sent out. There was some discussion about

the trial judge's feelings about the matter because
there was no unsafe submission made, there was no

submission of unsafety or rather a submission that

the case should be taken away from the jury at that

stage but it was something that was raised after

the jury had gone.

MASON CJ:  So the remark was made before any question of

inconsistent verdicts arose?

MR RICHTER: That is right. It was made before verdicts

were announced.

BRENNAN J:  It would be no case ruling which appears at

pages 183 to 185.	Did it vary from what His Honour
had said at that stage?	He held there at the

bottom of page 184 - the question he asked was

whether -

the jury could be satisfied beyond reasonable

doubt of each element of each of the offences.

And then he said it was so open to the jury to

find.

MR RICHTER: Yes, it was open, but at that stage the learned

trial judge was not pronouncing on his feelings of

whether it would be safe or not safe. So whilst

finding that in a formal sense it was open, which

is what he needed to find at the stage of a no-case

submission because there was, at the very least, a

scintilla of evidence to go to each and every

element as he found and defined "character of the

act" for himself, it was not necessary to decide

upon that because the submission to take the case

from the jury is generally made at the end of all

the material.

In this case it was not made, and the reason

it was not made was because of the finding on the

Mobilio 22 6/12/90

no-case submission essentially, one would imagine,

because of the way the learned trial judge defined
the issue of the "character of the act". It was

obviously not felt by the end that the evidentiary

picture had so changed that no jury could find a

mistake as to the character of the act, but the

retirement of the jury did cause some misgivings to

the learned trial judge. By then he had started

feeling misgivings about safety, so that albeit no

submission to take the case away was made, he

commented on it.

That, of course, became of great significance

after the verdicts in his report to the Court of

Criminal Appeal.

MASON CJ:	Thank you, Mr Richter.	Yes, Mr Black.
MR BLACK:	Your Honours, as to the

MASON CJ:  We need not trouble you on the aspect of public

importance.

MR BLACK:  May it please the Court. As to what might happen

were leave granted and the matter to proceed, the

inconsistency matter is, on the face of it,

troubling, but perhaps the central point in answer
to it, as I understand it, put before the Court of

Criminal Appeal, is that the characteristics of the

three cases in which a conviction was recorded are

that they were the three cases in which the women

concerned actually complained; in one case to the

police, in one case to a doctor and in the other

case, I think, to her boyfriend. The other women

had not complained, but when the police came along

investigating the matter then they recalled the

circumstances and it went on from there. The jury

were, as I am told, instructed to deal with each

case separately, and the three in respect of which

a conviction was recorded had a number of special

characteristics, including, perhaps relevantly, but

even if illogically, a complaint by the victims.

BRENNAN J:  So evidence of recent complaint was admitted?

MR BLACK:  It went in, Your Honour, yes it did. I am

reminded that it was the subject of cross-

examination so perhaps there were tactical reasons

why that all occurred. As to what happened in the

Court of Criminal Appeal, counsel will nearly

always be wrong about omens - and my learned

junior's perception of the omens is different from

that of my learned friend - but it would have to be

conceded that, were the grounds of appeal to be

amended and were it to be argued that the learned

trial judge's charge on consent on other issues was

wrong, as to which my learned junior has excellent

Mobilio 23 6/12/90

omens, but were those omens to be wrong, and the

charge could not be supported, then in that

instance it would have to be conceded that it would

be open to the accused to have a new trial.

All we can say is that it would be our

submission - it can really be no more than an

assertion, that is a small remote possibility, but

its existence cannot be denied and is not denied by

us. We would submit the most likely thing is that

either the inconsistency argument succeeds, or it

does not, and if it does not succeed that is the end of the matter; if the inconsistency argument

succeeds, then the accused remains acquitted.

As to the other points I have nothing to say because the parties are in complete contest as to

whether Papadimitropoulos was correctly applied or

was not. We say, it - - -

MASON CJ:	I do not think you need trouble about that.
MR BLACK:	Indeed, Your Honour. Well, beyond that, all I

can say is that it is a matter of balance and if the public importance - and indeed the weight of

public importance must be relevant. There are some

matters that are of public importance that are more
important than others and we say, for reasons
advanced primarily, that the scales come down on

the side of setting the law on its true course, in

our respectful submission.

AT 11.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.57 AM:

MASON CJ: Justice Toohey and I would grant special leave to

appeal in this matter.

BRENNAN J:  What I am about to say represents my view and

the views of Justices Deane, Gaudron and McHugh.

Although the questions which the Crown seeks

to raise in this application are of general public

importance and although those questions are, in our

opinion, fairly arguable, the case is attended by

some features which make it an unsatisfactory

vehicle for the grant of special leave.

In the first place it is an application for

special leave to appeal from a verdict of

Mobilio 24 6/12/90

acquittal, albeit the verdict was entered by the

Full Court.

Next, the trial judge has expressed some

misgiving as to the safety of the verdict and the

jury has acquitted on some counts which are not

easily distinguishible from the counts on which

they convicted, save by reference to evidence of recent complaint, the admissibility of which has

been assumed.

Thirdly, this Court could not give a final

decision if special leave were granted and the

appeal allowed. The matter would have to go back

to the Full Court for further consideration on

outstanding grounds.

In these circumstances, in our opinion,

special leave should be refused.

DAWSON J:  I would refuse special leave to appeal. I do not

think that there is sufficient reason to doubt the

correctness of the decision of the Court of

Criminal Appeal.

MASON CJ:  The order of the Court then is, application for

special leave to appeal refused.

Yes, Mr Richter.

MR RICHTER:  May it please the Court, I am instructed by the

Legal Aid Commission of Victoria to seek costs

consonantly with the refusal of special leave in

Benz with costs and in some other refusal cases.

MASON CJ:	Mr Black.
MR BLACK:	I cannot, for the moment, think of anything I can

say about that, Your Honour. Your Honour, there is

nothing I can usefully say about that. I thought

that it was unusual in such cases, that the costs

simply fell where they lay. I am not in a position

to make the submission on instructions. I do not

know what view the Director would take where it is

a publicly funded respondant who is brought here by

the Director.	Beyond that I am not able to assist
the Court.	My impression is that it is departure

from the normal practice, so I could not say

anything further.

MASON CJ:  The order of the Court is application for special

leave to appeal refused with costs. The Court will

now adjourn until 9.00 o'clock tomorrow morning in

Canberra and 9.30 tomorrow morning in Sydney.

AT 12.01 PM THE MATTER WAS ADJOURNED SINE DIE

Mobilio 25 6/12/90