Sopheap Khun v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0042

SOPHEAP KHUN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2024
DATE OF JUDGMENT:	23 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 246
JUDGMENT APPEALED FROM:	DPP v Khun [2023] VCC 1257 (Judge Hogan)

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CRIMINAL LAW – Appeal – Conviction – Rape by compelling sexual penetration and associated offences – Elements – Causation – In what circumstances accused will have ‘caused’ complainant to sexually penetrate themselves – Appeal allowed – Conviction set aside – New trial ordered.

CRIMINAL LAW – Appeal – Sentence – Recklessly causing injury – Guilty plea – Four months’ imprisonment manifestly excessive – Appeal allowed – Resentenced to be convicted and discharged.

Crimes Act 1958, s 39.

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Counsel
Applicant:		Ms GF Connelly
Respondent:		Ms J Warren
Solicitors
Applicant:	Nelson Brown Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

In May 2020, the applicant was in an intimate relationship with ‘SY’. He intermittently lived with SY and her three children in SY’s house, situated in a south-eastern Melbourne suburb.
On 16 May 2020, in circumstances I will later describe in more detail, the applicant told SY to put her finger into her vagina to prove that she had not had sex with another man. She did so. As a result, the applicant was subsequently charged with rape by compelling sexual penetration (and other charges).
Throughout November 2022, the applicant was tried in the County Court on an indictment that charged him with rape by compelling sexual penetration (charge 3), common assault (two charges – charges 1 and 4) and making a threat to kill (two charges – charges 2 and 5). On 24 November 2022, the jury empanelled to try him found the applicant guilty of rape by compelling sexual penetration and one charge of common assault (charge 4), but acquitted him of the other three charges.
Earlier, on 10 November 2022, the applicant had pleaded guilty to a charge on a ‘plea indictment’ of recklessly causing injury to SY on 13 November 2019. Following a plea in mitigation, on 21 July 2023 the trial judge sentenced the applicant to imprisonment on that charge, and the charges upon which he had been convicted at trial.[1]
[1]The judge sentenced the applicant to two years’ imprisonment on charge 3, rape by compelling sexual penetration; 22 months’ imprisonment on charge 4, common assault; and four months’ imprisonment on the charge of recklessly causing injury. Twelve months of the sentence for common assault, and two months of the sentence for recklessly causing injury, were ordered to be served cumulatively upon each other and the sentence on charge 3. The total effective sentence was thus three years and two months’ imprisonment, upon which the judge fixed a non-parole period of two years and two months.
The applicant now wishes to challenge his conviction (and sentence). In order to do so, he needs this Court to grant him an extension of time. If granted an extension of time, he seeks to rely on the following proposed ground of appeal with respect to conviction:
1 A substantial miscarriage of justice was occasioned by erroneous and inadequate directions of law as to the elements of charge 3, rape by compelled sexual penetration such that the conviction on charge 3 should be quashed.
PARTICULARS:
(a) Failure to direct the jury that it must be satisfied beyond reasonable doubt that the complainant submitted because of fear of harm before deeming non-consent.
(b)Failure to provide a workable test for satisfaction of the element of causation.
(c)Failure to direct the jury that before finding the element of causation proved it must be satisfied that the complainant’s penetration of herself was based on a well-founded apprehension of harm such as to make her submission a natural consequence of the applicant’s conduct.
With respect to conviction, for reasons that follow, I would grant an extension of time within which to seek leave to appeal; grant leave to appeal; allow the appeal; set aside the conviction on charge 3; and order a new trial on that charge.
As to sentence, the applicant contends that the individual sentence for recklessly causing injury, and the order for cumulation between the sentences imposed on the charges on the plea indictment and trial indictment, are manifestly excessive. As I will explain, the applicant should also enjoy success with respect to sentence.[2]
[2]See [81]–[85] below.
The circumstances of the alleged offending
SY, the complainant, gave evidence through an interpreter. Of Cambodian origin, SY came to Australia in 2013. In 2020, she had her three children living with her, having separated from their father in 2018 or 2019. She met the applicant when working on a farm in 2013 or 2014, and they developed a friendship. Around October 2019, the applicant moved into her house with her and her three children. He did not stay permanently, but was ‘in and out’.
Prior to the applicant coming to live with her, SY and the applicant did not have a sexual relationship. SY’s evidence was that a sexual relationship commenced five weeks after he moved in. Throughout their relationship, the applicant would accuse SY of having affairs with other men ‘most of the time’, and he was regularly violent towards her. The last time SY had sex with the applicant was the ‘night before the police came’.
On 16 May 2020, SY went to visit her older sister. When she left home the applicant was there, having stayed overnight. Upon her return home at 7.20 pm, the applicant was present. SY gave him some rice cooked by her sister, and he said loudly and aggressively: ‘Where have you been? You left this morning till very late in the evening and you return home. Are you going to meet and have affair with a man?’. He also said: ‘Where have you been? You just go and ‘F’ someone?’. SY’s evidence included: ‘He asking me where have I been – am I just come back from fucking a man, and I respond, “I’m not that kind of person. I don’t like the language”.’. SY said the applicant accused her of not visiting her sister, alleging: ‘I am went [sic] and fucking with the man’.
SY’s evidence-in-chief continued with the following passage:[3]
[3]Emphasis added to this and passages following.
[PROSECUTOR]: ... Did you do or say anything else to [the applicant] before you [took your son to the bedroom]?---Yes. I did say back to him, I say, ‘I am the growing up woman. I am not the cheating person. I value myself. I don’t want you to talk to or call me like that. I have pride’.
...
When you said those words to [the applicant], were you talking to him like you and I are talking now or did you raise your voice?---I did use my high volume in that regard.
All right and how many times did you say this to [the applicant]?---I spoke to him several time in that but there is a different tone and different volume because I have the gentle the softness I spoke to him. I also have the harsh words talk back to him as well.
All right, so, you told the court that you picked up your son, [V], to take him to another room. Is that right?---Yes. Correct.
Which room did you take [V] to?---It’s my bedroom.
And what did [the applicant] do when you picked up [V] and took him to your bedroom?---When I put [V] to bed I then went to the bathroom and then he went to the bathroom with me and also he asking me to put my finger in my vagina. May I say something more? I have forgot to mention that when I put [V] to bed I ask my other two daughter to go to bed as well.
All right?---And then I went to the bathroom.
... When you got to the bathroom was [the applicant] all ready in the bathroom or did he come after you had gone into the bathroom?---As soon as I enter the bathroom he went behind me because he want to check in case I wash my vagina.
Now, when [the applicant] came into the bathroom after you did he shut the door or did the door remain open?---I am the one that tried to shut the door but he push it because I couldn’t shut the door. He push it in. Yeah.
When you say he pushed it in, do you mean that he pushed it closed?---No. He didn’t do that. I’m the one that tried to close the door because I’d come to the bathroom and I want to be myself but he pushed the bathroom door open.
I understand. After he pushed the bathroom door open and came inside the bathroom did the door remain open or was it closed?---He went into the bathroom and then the bathroom door been shut.
... When you got into the bathroom what did [the applicant] say to you?---You don’t need to go and wash yourself. I mean, you don’t need to go to wash your vagina. You just need to put your finger in your vagina if there is sperm it will coming out or specimen, in other words.
All right. He said this to you in the bathroom. Was this the first time on this evening that he had told you to check your vagina?---That’s fifth – four or fifth all ready he used that word.
And when you say, ‘used that word’, what do you mean?---I (indistinct) what the word is mean because he doesn’t believe me.
Just pause there. Just listen to my question. When you say that [the applicant] ‘used that word’, what word are you referring to?---Before I enter into the bathroom, he used the word, ‘You don’t need to walk away from me. You just need to put your finger on your vagina because you sleep with a man’.
Where in the house were you when he first said these words to you?---Um, from the main entrance, it’s to the bedroom and the toilet that – where the first word been used.
So by the time you get to the bathroom, how many times had [the applicant] told you to check your vagina?---Two or three time.
And in those two to three times when he told you to check your vagina, how would you describe his tone of voice?---The tone of voice, the ordering tone of voice.
I think you used the words ‘an ordering tone of voice’. What was it about how he spoke to you that made you think it was an ordering tone of voice?---If the ordering people talk in the conversation, tell people something one or twice, that’s enough, but he’s not only done that, but he’s also following me to the bathroom.
…
What about the volume in which [the applicant] was saying to you to check your vagina?---It’s very high tone, very high volume.
Did [the applicant] say to you anything about why he wanted you to check your vagina?---No, it doesn’t have any reason because what he said is I’d been too long, and I take the children and let somebody else look after the children, and I’m going to having affair.
...
Did [the applicant] say how you should go about checking your vagina?---He told me to put the finger in my vagina. If there is the semen in there, it will come out. And I never, never done anything like that. I never put my finger into my vagina.
So, did you do what [the applicant] told you to do? Did you put your finger into your vagina?---Yes, I did. Yes, I did. I done that because I want to show him that I have not sleeping with a man because that words, it’s very, very offensive, and it’s very hurtful because I have nothing, um, I have to do that because I have nothing to show him, what he – I’ve been accused of.
... Which part of the house were you in when you checked your vagina?---After I left the bathroom, I went into the bedroom on, near the door. I then undressed my pant and I have done the, another word is, put my hand into my vagina and show him. ‘Come and have a look – I don’t have any. Even my underpants is no, no semen stick to it. Everything is very clean.’
Later in her evidence-in-chief, SY gave the following evidence:
[PROSECUTOR]: But I’m just focussing on the period of time before you checked your vagina with your finger?---Yes.
All right. As I understand your evidence, you called out to your girls before you checked your vagina with your finger – is that right?---Yes.
All right. When you put your finger, when you went to check your vagina with your finger, did you want to do that?---No, I don’t.
So why did you do it?---Because I want to tell him that I value myself and I’m the honest woman and I take pride of what I do.
Any other reason?---Because this is my honour – yeah. I’ve been. In this case, what he had done to me, he not a gentleman because gentlemen need to respect the woman and he is not my husband.
Why did you not just say no, why did you not just refuse to do it – that is, to check your vagina with your finger?---Yes, I did. Yeah, I did. I um disagree with him what he told me to do from the beginning when I drop food for him on the table when I went to the bathroom, when I come out, when I put [V] to bed – I did. Yeah.
So when you got to the bedroom, why did you ultimately do that, check your vagina with your finger?---Because the word that he used, it hurting me emotionally, that he say I’m a dirty woman, I’m a very cheating, I’m sleeping with a man. That mean I don’t value myself. That’s how I feel. The reason also because of the threatening previously as well.
SY explained that the ‘threatening’ occurred ‘maybe four or five weeks before this checking – the vagina checking’. The threat was that he ‘will kill [her] and put [her] in the freezer and also he will mow [her] down with the car’. SY’s evidence continued:
What did you think might happen to you if you didn’t do what [the applicant] had said – that is, to put your finger into your vagina to check for sperm?---The reason, first of all, is fear for the children’s safety; secondly, fear for my safety because he is at home, and then when I fall asleep, I don’t know what he’s going to do next. That’s the reason that I have to obey him and do it.
… Before you put your finger in your vagina, is there anything that [the applicant] said or did on that day that made you in fear of your safety?---Um, the reason is because all the word he had threatening from the – previously, such as killing me and put me in the freezer, mow me down with the car. And then I report to the police, police say that I don’t have evidence. That is stuck in my head for a long, long time. That is my reason that I have to perform what he had asking me.
[SY], I am going to ask the question again because I’m not sure you quite answered it. Just listen very carefully. So before you put your finger in your vagina, on that day, had [the applicant] said or done anything to put you in fear of your safety?---The respond it will be flashback the past, killing me, put me in the fridge, drive the car and mow me down. That is the fear that I got in my head. That’s the reason I – I do it.
Understand. Maybe I’m not asking the question very clearly. So, I’m now talking about that day – 16 May – being the day that he told you to check your vagina. All right – the day he told you to put your finger in your vagina to check for sperm. So, on that day and before you put your finger in your vagina, did he say anything to you or do anything to you that put you in fear of your safety?---First of all, it will be the way that he swear at me in front of my children on that day and yelling to the children very offensive word.
Is there anything else that he did or said after you got home but before you put your finger into your vagina that put you in fear of your safety?---I can’t describe how I remember because when I been choked and strangled, I couldn’t remember what I able to say clearly – that’s the reason I don’t want to say it out because I couldn’t remember properly.
SY also gave the following evidence:
[Y]ou told the court that you checked your vagina to show him whether there was sperm on your finger, do you recall giving that evidence?---Yes. Yes.
And did you show [the applicant] your finger?---Yes, I did.
And did you say anything to [the applicant] when you showed him your finger?---I did say something.
And what is it that you said?---Is that filling your purpose because I didn’t having affair. I’m the good woman, I’m not a dirty woman.
Did [the applicant] say anything in response?---He respond ‘Today you didn’t do that but next time you will do that’.
All right. Now, you gave some evidence … that you undressed in order to check your vagina, did you dress yourself again?---Yes, I did pull up my pant back.
And when did you do that?---After I’d been asked to put the finger in my vagina and after that, I put back my underpants, pull back my underpants and then I pull my pants back.
All right. Now, after [the applicant] said words to you ‘If not today, you will’, what happened after that?---’You a prostitute. You are really dirty’.
After [the applicant] said those words to you, what happened after that?---I did, I told him after what you have said to me or accusing me, you need to leave my place. I don’t need you to be here.
And what was [the applicant’s] response to you telling him to leave your house?---He continue calling me, ‘You are the dirty woman. You are the prostitute woman’ and continue several time to mention that. That’s the reason I called my daughter to tape the video of the conversation. And I also – because I feel so, um, hopeless, and I feel so low how I’d been called all the word that I mention, and I tend to use the high volume, the tone of voice and able him to leave the place.
According to SY, she and applicant argued and pushed each other. The applicant said, ‘If you want to die you will die’ (charge 5, threat to kill – verdict not guilty). This took SY’s mind back to an earlier occasion in which he had asked her if she wanted to die. She was worried about who would look after her children. That is the reason why she did everything that the applicant asked her to do. The applicant had on one occasion previously, at a time after he commenced staying at her house but before 2020, choked her in front of her house near her car (charge 1, common assault – verdict not guilty). On that occasion he said to her: ‘You want to die? I can kill you and put you in the fridge’ (charge 2, threat to kill – verdict not guilty). In any event, the applicant pushed SY to the bed and strangled her (charge 4, common assault). Her daughter entered the room and bit the applicant on the arm to make him stop.
SY’s daughter took three videos. The complainant thought the first was taken after she exited the bathroom and before her son was moved from her bedroom. SY’s daughter said the first video was immediately before the applicant choked the complainant. The complainant could not say at what point the second video — which shows the applicant picking up SY’s infant son — was taken, although her daughter said it was after she had bitten the applicant. These videos depict verbal argument between the complainant and the applicant. SY’s daughter gave evidence that she witnessed a verbal and physical argument between the applicant and complainant. She said that she saw the applicant strangling her mother and she bit him on the arm, and she adverted to regular violence by the applicant and her mother.
SY called the ‘000’ emergency services number at 8.38 pm. She complained that she had been strangled. SY told the operator that the applicant swore at her and called her a whore and she was really angry. She did not, however, mention penetration.
Under cross-examination, SY agreed that she was furious with the applicant and he had been very hurtful to her. She could not recall having told police that she had penetrated herself because the applicant ‘had just strangled me and ordered me to do so’. SY said: ‘I can’t recall very much because, firstly, is he dishonours me, the way that I’ve been abused by him, the verbal abuse. And it also disrespectful my privacy, disrespectful my right’. She agreed she told the police that she thought if she did not penetrate herself the applicant might hit her again, but she rejected ‘puttage’ that the applicant had ‘suggested’ that she prove she had not had sex with a man. The applicant, she said, had ordered her to do it. SY repeated that she was angry that the applicant had dishonoured and mistreated her by making his accusation. She rejected further puttage that the applicant had never been violent or threatening in the way she had described. Significantly, counsel for the applicant put to SY that she did not penetrate herself. In essence, counsel put to SY that there was no act of sexual penetration, and that she had made up the allegations of sexual penetration for two reasons: first, because the applicant owed her money; and secondly, because the applicant had ‘offended’ her pride which made her angry.

The applicant did not give evidence. In a recorded interview with the police, however, introduced as part of the prosecution case, he admitted having an argument with SY in the living room and the bedroom about whether she had had sex with another man. On the applicant’s version, the argument started after the complainant accused him of having someone over while she was out. The applicant admitted telling SY to prove that she had not slept with her boyfriend by checking her vagina, although he said he was not serious. He said he asked her this ‘a lot of times’. The applicant said SY wanted to prove his allegation was false by going to the doctor, but he said she could check herself. He said he was teasing her, and did not make her do it. The applicant admitted to fighting with SY, but denied strangling her. In the course of the interview, police did not ask the applicant whether to his observation the complainant had penetrated her vagina, the police having cautioned him only concerning assault.
The issues at trial
As opened to the jury, the prosecution case was that SY complied with the applicant’s ‘direction’ to penetrate her vagina with her finger because she was afraid for her safety. Hence, the prosecutor’s opening included the following:[4]
Moving onto Charges 3 to 5. What the Crown says is that these charges relate to an incident on 16 May 2020. ... After [SY] arrived home, the Crown says that [the applicant] immediately accused her of having an affair, asking why she had been away for so long and whether she had had sex with another man. [The applicant] told [SY] to check her vagina and that there would be semen in there. The Crown says that [the applicant] told [SY] a number of times to do this and to go to the bathroom to check her vagina for sperm and initially she refused to do so.
[The applicant] had dinner [and] both during and after dinner, he again told her to check her vagina and after dinner, [SY] went to the toilet and then to her bedroom with [the applicant] following her.
The Crown alleges that [the applicant] kept telling [SY] to check her vagina. Telling her that if she had had sex with another man, then another man’s sperm would be inside her vagina and if she didn’t check it, then that would only confirm that she had an affair. [The applicant] told [SY] to undress and use her finger to check her vagina, to get the sperm out of her vagina. The Crown says that [the applicant] was agitated when repeatedly telling [SY] that she had an affair and was standing close to her and yelling at her.
...
Going back to the narrative. So whilst in her bedroom, the Crown says that [SY] took off her pants and she was standing beside her bed. [The applicant] was sitting on a chair in the bedroom and instructed her to put her finger in her vagina to see if there was any sperm.
[SY] used a finger on her hand and inserted it into her vagina and then showed [the applicant] her finger.
Now, ladies and gentlemen, it’s the prosecution case that [SY] complied with [the applicant’s] direction to penetrate her vagina with her finger because she was afraid for her safety. That she didn’t consent freely, and that in the circumstances of this case, that [the applicant] could not reasonably believe that [SY] was consenting to do that to herself. That’s, ladies and gentlemen, is Charge 3 on the indictment and I’ll say something about that charge. You’ll see it’s recorded there as rape by compelling sexual penetration and in terms of what must be proved is set out in the body of the charge.
Now, you heard something earlier from me about the background of this relationship, including allegations that the accused man was regularly violent towards the complainant during the relationship and that’ll be relevant, ladies and gentlemen, when it comes time for you to consider the circumstances in which the complainant, [SY], came to penetrate her vagina with her finger and specifically whether she consented to this, and also whether the accused reasonably believed that she was consenting to this. As I said, you’ll get a lot more help from Her Honour as to these issues at the end of the trial but just something to think about at the outset. It also really just helps you to understand the context as well in which these allegations took place.
[4]Emphasis added to this and passages following.
Later in the trial, during a break in the course of SY’s recorded evidence being played to the jury, there was discussion between the trial judge and counsel in the absence of the jury, in which the judge asked: ‘Just while I have the parties, I’ve been looking at the elements for the charge of rape. Is there any case law referable to intentionally causing?’. In answer, the prosecutor said there was not. Defence counsel agreed. The prosecutor then drew the judge’s attention to a publication, Victoria’s New Sexual Offence Laws: An Introduction, published by Criminal Law Review Department of Justice and Regulation. There was then further discussion, during which the judge said she could ‘always tell the jury is they’re plain English words’. Significantly, the prosecutor told the judge that, as he saw it, the issue for the jury was going to be why SY sexually penetrated herself; that is, whether she did it because she simply wanted to show the applicant that she had not had sex with another man, or whether the jury accept that she did so out of fear that she might be harmed. He observed that
it may be that the jury are asked first of all, look are you satisfied that she penetrated herself, because that seems to be an issue based on the puttage. … Number two, did the accused intentionally cause for her to do that. Now, given the accused’s admission in the record of interview that he did in fact, say to her to put her finger in her vagina, I wouldn’t imagine that that will cause the jury too much difficulty. In terms of why she did it, that’s really, as I see it, going to be the issue for the jury, that is, whether she did it because she simply wanted to show him that she didn’t in fact have sex with another person or indeed – or whether the jury accept that she did so out of fear, that is, that she might be harmed.
HER HONOUR: Or pressure, she used the term, pressure at one stage.
[PROSECUTOR]: Yes. She did. There’s a number of answers in terms of why but then of course the issue about, what is consent, in terms – I think it’s s 36 of the [Crimes Act 1958], that defines consent comes into play and then reasonable belief in consent. But the issue about the pressure, to use the complainant’s words, as to why she did so, are probably relevant to the issues of consent and reasonable belief in consent, as opposed to whether or not the accused caused her to do that.
After more of the complainant’s pre-recorded evidence was played to the jury, there was further discussion between the prosecutor and judge during another break in proceedings:
[PROSECUTOR]: I was just thinking about Your Honour’s point while we’re listening to the evidence and I suppose just on that first element, whether the accused intentionally caused the complainant to penetrate herself. Thinking back to the accused record of interview he does say that he was simply teasing her. So, while he may have caused her to penetrate her vagina with her own finger, whether he intentionally caused her to do so may well be an issue in the trial, given what he says in the record of interview about teasing. So, I’m just sort of thinking about that whilst we were listening to the evidence.
HER HONOUR: Yes. On the other hand, there’s evidence that he said it up to five times or something like that.
[PROSECUTOR]: At least on the complainant’s evidence that’s right.
HER HONOUR: Yes.
[PROSECUTOR]: But in terms of what the issues that the jury might need to decide, based on at least what’s in the accused record of interview, while he may have caused her to do there may well be an issue for the jury to decide whether he intentionally caused her to do so, if they accept as a reasonable possibility what he said in the record of interview.
From these exchanges it is plain that the ‘intentionally caused’ element of charge 3 was in issue in the trial. So much was further made plain after the prosecution case was closed, when the trial judge and counsel had the kind of discussion contemplated by ss 11 and 12 of the Jury Directions Act 2015 (‘JDA’). In that discussion, the prosecutor informed the judge that, ‘having canvassed the record of interview and the way in which the cross-examination [of SY] was conducted’, he was of the view ‘that all four elements [of charge 3] are in issue here’. Defence counsel responded that ‘it’s obvious that all elements of the offence need to be proven beyond reasonable doubt’, and said: ‘So, it’s certainly the case. Nothing is conceded’. He later added that ‘everything is in issue so far as the rapes are [scil, rape is] concerned’, and there was then further discussion:
[DEFENCE COUNSEL]: ... Insofar as the main game is concerned which is the rape Your Honour, I’d be saying that the - - -
HER HONOUR: Just a moment, I’m just making a note. Yes, sorry, go on.
[DEFENCE COUNSEL]: There’s the instructions as put that it didn’t happen and in addition, I’d be arguing that even if the jury was satisfied that she did penetrate herself, that they couldn’t be satisfied that she’d communicated non-consent or anything like that to the accused so you couldn’t be satisfied that he was aware she was not consenting. I think that’s relevant. And there’s no real evidence, in my view, that as to his mens rea, had led it all in this case.
HER HONOUR: Well.
[DEFENCE COUNSEL]: So, everything, every element - - -
HER HONOUR: There’s a bit of evidence there. She said something that he pursued her from the lounge room into the bathroom and into the bedroom and I think, at one stage, said that he’d said four times that she should go and put her finger in her vagina. So that sounds like it might be relevant to mens rea - - -
[DEFENCE COUNSEL]: Well that’s – I expect my learned friend will close.
HER HONOUR: - - - Doesn’t it, and the question of whether he’s intentionally causing her to do it, he’s not – if he’s teasing her, it’s a very protracted teasing, isn’t it? And he’s sitting there, according to her, on a chair, while she’s taken off her pants and put her finger in there. So - - -
[DEFENCE COUNSEL]: It doesn’t, I don’t resile from my position that all the elements are in contest, and the jury will need to be instructed on every element that’s required to prove the rape charge, Your Honour.
HER HONOUR: So you say the fact that he has asked her on five occasions, or whatever her evidence is, before she does it, is in no way evidence that she had some reluctance to do this, that she wasn’t consenting?
[DEFENCE COUNSEL]: That’s my position, Your Honour - - -
Both counsel dealt with what was described as the ‘second element’ in the course of their final addresses. Defence counsel tackled the issue as follows:
Now, I’ll jump to the second element, that the accused intentionally caused the complainant to penetrate herself. What has the accused done that has caused the act of penetration? Well there’s [SY], the complainant’s statement, he told me to put my finger in my vagina. If there is semen in there, it will come out. But this is the context of an argument where there’s evidence from one witness that [the applicant] is being criticised for having someone back, likely a woman back at the house, back at the complainant’s house. Listen to what the young girl said about her mum’s part in the argument initially and it gives some context to what [the applicant] says that he was teasing her. Whatever, it is what you think of those words and how they’re said and consider each person, it’s about the two people obviously, consider each of their roles in the argument. It’s likely that [SY] is, in my submission, my view of the evidence, that she’s more offended by the impugning of her character and by the request itself.
Once again, the test is very high. I keep repeating myself, it’s beyond reasonable doubt. But even if you have the view that the complainant penetrated herself, is the requirement that [the applicant] intentionally caused the penetration proven to the high standard of beyond reasonable doubt?
Thus, although the primary position adopted by the defence at trial was that sexual penetration did not occur, it is clear that the defence also adopted the alternative position that the applicant had not done anything intentionally to cause SY to sexually penetrate herself. In those circumstances, I consider that it was necessary that the judge properly direct the jury on the ‘second’ element of the charge of rape by compelling sexual penetration. In my view she did not do so.
The judge’s directions
In the course of her charge, the trial judge provided the jury with a hand-out to accompany her oral directions. It was in the following terms:
CHARGE 3: RAPE BY CAUSING ANOTHER TO SEXUALLY PENETRATE THEMSELVES
In order for the accused to be guilty of this offence, the prosecution must prove beyond reasonable doubt:
(1) that the complainant sexually penetrated herself by inserting her finger in her vagina
AND
(2) that the accused intentionally caused the complainant to sexually penetrate herself
Explanatory note:
This means that the accused actually meant the complainant to do it, he was not teasing her.

AND
(3) that the complainant did not consent to sexually penetrating herself
Explanatory notes:
a.   Consent means free agreement.
b.   The law is that there are circumstances in which a person does not consent to an act, and they include where the person submits to the act because of fear of harm of any type to that person or to someone else.
c.   Experience shows that:
i.There are many different circumstances in which people do not consent to a sexual act; and
ii.People who do not consent to a sexual act may not be physically injured or subjected to violence or threatened with physical injury or violence.

d. Experience shows that:
i.People may react differently to a sexual act to which they did not consent. There is no typical, proper or normal response; and
ii.People who do not consent to a sexual act may not protest or physically resist the act.

AND
(4) that the accused did not reasonably believe that the complainant consented to sexually penetrating herself.
Explanatory notes:
a.   In determining this element, you must consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent.
b.   The law says that a belief in consent based only on stereotypes or preconceptions about the circumstances in which people consent to a sexual act is not a reasonable belief.
c.   This element will be met if the prosecution prove beyond reasonable doubt any one of the following circumstances:
i.The accused believed that the complainant was not consenting
OR

ii.The accused gave no thought to whether the complainant was consenting.
OR
iii.even if the accused may have believed the complainant was consenting, this belief was not reasonable in the circumstances.

It will be noticed that, in setting out what was said to be the second element of the offence, the judge repeated the statutory expression — ‘the accused intentionally caused the complainant to sexually penetrate herself’ — and added the ‘Explanatory note’: ‘This means that the accused actually meant the complainant to do it [i.e. sexually penetrate herself], he was not teasing her’.
In her oral directions on the second element the judge said (among other things):
Element two of the offence, that the accused intentionally caused the complainant to sexually penetrate herself, involves a consideration of the accused’s mental state. So, the accused conduct must be conscious, that is he was awake and he was aware of what he was doing. It must be voluntary, that is, he is exercising freewill. And it must be deliberate. So, this element means that the accused man actually meant to make [SY] do the act of putting her finger in her vagina.
Members of the jury, you will recall the direction that I gave you yesterday about the drawing of inferences. So, you need to take into account all of the evidence about what happened on this night, in deciding whether the accused did intentionally cause [SY] to do this act of sexual penetration. The accused in his record of interview agrees that he did tell [SY] to prove that she had not slept with her boyfriend … and that she said ‘No’ and that he said: ‘It’s easy to prove that, look at your vagina. If your vagina still has men’s sperm there, it proves that you’re sleeping with a man’. And he said she could go to the bathroom to check her vagina, to see if it has got men’s sperm in there. And that they were going in and out of the living room and bedroom while this was being said.
He agreed that he said this to [SY], ‘Don’t lie to me’ … in his record of interview and that he asked her to prove that she had not had sex with another man and that he said this lots of times ... But he stated that he was not serious ... He did not mean it ... He was just teasing her ...
[The prosecutor] submitted to you that the accused would not be asking [SY] to put her finger in her vagina, to prove that she had had not sex [sic] with another man, unless he had a sexual relationship with her. And you know that the accused said that he did not have a sexual relationship with her and you know that [SY] said, that they did have sex and indeed they had last had sex the night before, 16 May 2020.
So, [the prosecutor] invited you to find that all of this asking her to prove that she had not slept with another man and put a finger in her vagina, which [the applicant] admitted in his record of interview, simply would not make any sense at all unless he was having a sexual relationship with her, unless it was of a jealous nature. So the prosecution invite you to look at [SY’s] evidence about the accused behaviour and the words that he used on this night, to infer that this element 2, that the accused intentionally caused the complainant to sexually penetrate herself, is proven. I just point out that the element is not as [defence counsel] said in his address to you, one of compulsion or force. It is intentionally causing [SY] to put her finger in her vagina.
[The prosecutor] reminded you that [SY] stated that she did not want to put her finger in her vagina. ... From the outset when she came home and put food for him on the table, he accused her of having been out, having sex with another man and said she needed to check her vagina and she said ‘No’, she refused to do it. ...
She said she had never done anything like this before. She had never put her finger in her vagina before. ... [SY] said that the accused yelled at her in an aggressive way, … and he had an ordering tone of voice …, and his voice was high volume ... [The prosecutor] reminded you of how [SY] had demonstrated how the accused was pointing at her, as he said these abusive things. ...
[SY] stated that the accused told her about two or three times before she went to the bathroom and maybe, overall, some five times to go and put her finger in her vagina and, if she did not do it, that meant she had slept with a man. ... She said the argument went from the living room to the bathroom, back to the living room and, then, he actually followed her inside the bathroom and shut the door. And he said, ‘You don’t need to wash your vagina, you just need to put your finger in it and if there’s sperm there, it’ll come out’. ...
They then went into the bedroom and he sat on a chair, while she removed her trousers and undies and inserted her finger into her vagina and she showed him her finger and said: ‘Is that filling your purpose because I don’t have an affair. I’m a good woman, not a dirty woman’. ... Under cross-examination, [defence counsel] put to her that the accused had suggested to her that she needed to show him that she had not had sex with another man and [SY] said, it was not a suggestion, he was ordering her to put her finger in her vagina. He was harassing her. ...
So, the prosecution invite you to accept all of those parts of [SY]’s evidence about what the accused said and did from the time she got home on that evening of 16 May 2020, to find that the accused was in effect persistent and aggressive in his insistence that she put her finger in her vagina and you should, on that evidence be satisfied, beyond reasonable doubt, that he caused her to perform this act of sexual penetration on herself.
The complainant did say that she put her finger in her vagina because she wanted to show the accused that she had not been sleeping with a man, because that was a very offensive and hurtful insult and she effectively wanted to show that she was not a dirty woman or a whore, and that she had pride. ... Members of jury, it does not matter that there may have been another reason, such as proving her honour, which may have been part of the reason that [SY] put her finger in her vagina. If you are satisfied beyond reasonable doubt that the conduct of the accused caused her to sexually penetrate herself and that it was his intention to cause that to happen, then that is sufficient for element 2 to be made out.
In relation to element 2, the intentionally causing [SY] to sexually penetrate her vagina, [defence counsel] said that [SY]’s description of the relationship with the accused sounded like a friends with benefits relationship. The accused would come and go as he pleased, he had another address, he had his own room at [SY]’s house. [SY] had plenty of time to do whatever she wanted while the accused was not at her house. None of this fits in with the accused intentionally causing her to put her finger in her vagina.
He reminded you of what the accused said in his record of interview, that he was simply teasing [SY] in asking her to do this and he submitted to you that [SY] seemed to be more offended by [the applicant] impugning her character, than by the request itself. And [defence counsel] submitted that you could not be satisfied of that element beyond reasonable doubt.

From the passage of the charge extracted above, it may readily be gleaned that the judge directed the jury that:
·    first, the second element ‘means’ that the applicant ‘actually meant to make [SY] do the act of putting her finger in her vagina’;
·    secondly, the element is not — as defence counsel had argued in his address to the jury — ‘one of compulsion or force’; and
·    thirdly, if the jury were satisfied beyond reasonable doubt that the ‘conduct’ of the accused caused SY to sexually penetrate herself ‘and that it was his intention to cause that to happen, then that is sufficient for element 2 to be made out’; so that it did not matter that there may have been ‘another reason’ — such as proving her honour — which may have been ‘part of the reason that [SY] put her finger in her vagina’.
I consider that, notwithstanding that neither prosecution nor defence counsel took any exception, these directions were infected by error.
The applicant’s submissions in this Court
In support of the proposed ground, counsel for the applicant submitted that the prosecution case as opened was that the applicant made demands and SY complied because she feared for her safety. In evidence, however, SY four times explained that the reason why she penetrated herself was to prove the applicant wrong and out of hurt and wounded pride. Even when, after persistent questioning, she added that she felt threatened, it was only ever as an additional reason, not a stand-alone (or even primary) reason. As counsel put it in her oral submissions: ‘[SY] used a loud voice to ‘remonstrate’ with [the applicant] … she wasn’t frightened of him … she wasn’t cowed into submission … this was to do with pride’. She also submitted: ‘The real issue is whether her response was to vindicate her pride and prove him wrong’. The element of causation would only apply if SY’s actions ‘were borne of fear of harm’.
Moreover, counsel submitted, the prosecution conceded in closing that there was no evidence of threats or physical violence on the day of the alleged rape prior to the alleged penetration. As counsel orally submitted, there was an ‘agreed absence of any proximate threat or violence’. While there was evidence of violence throughout the relationship, the prosecution limited its case to the specific alleged threats four or five weeks earlier. Significantly, however, the jury acquitted the applicant of charges 1, 2 and 5, which related to the only other evidence of a specific occasion of violence and threats.
In those circumstances, counsel submitted, it was vital that the trial judge’s directions as to causation and consent distinguished between penetration motivated in part or wholly by anger and wounded pride on the one hand and fear on the other. But they did not.
Counsel for the applicant submitted that the jury were not given a workable test for evaluating whether causation was established. The judge specifically directed the jury that if the complainant penetrated herself out of anger or wounded pride that would be no impediment to a finding of causation, leaving the jury with the wrong impression that they must find the element of intentional causation proved if they were satisfied that the applicant intended the complainant should penetrate herself and if they were satisfied that but for his conduct the penetration would not have occurred.
The applicant’s counsel submitted that the expression ‘intentionally causes’ is used in multiple sections of the Crimes Act 1958 dealing with offences against the person. Common law concepts of causation have been applied to those provisions. Applying common law concepts, the voluntary act of another (except in circumstances of innocent agency or vicarious liability) breaks the chain of causation. Only where the act of another is not truly voluntary, for example by reason of coercion, command or deceit does the chain of causation remain intact. Mere domination by force of personality is not enough.[5] Counsel submitted that even where an act of another is responsive to violence by another, its consequences will only be attributed to the accused person where that act was based on a well-founded and reasonable apprehension of harm such as to make the other’s act a natural consequence of the accused’s act.[6] Self-penetration caused by anger or wounded pride, counsel submitted, would be incapable of satisfying the requirement of causation.
[5]Counsel cited R v Franklin (2001) 3 VR 9, 20–27 [32]–[51] (Brooking JA).
[6]Counsel cited Royall v The Queen (1990) 172 CLR 378.
In oral submissions, counsel for the applicant submitted that in their discussions under s 12 of the JDA, both trial counsel had made it clear that the element of causation was in issue. In those circumstances, the jury ‘had to be directed properly about causation’. Counsel submitted that ‘embarking on the task of directing on causation, [the judge] had to do it correctly’, and ‘couldn’t just repeat the terms of the section’. The judge had to provide ‘some test for causation’.
Counsel for the applicant contended that it was necessary that the judge direct the jury that unless it could be satisfied that the complainant penetrated herself on the basis of a well-founded fear of harm so that her doing so was a natural consequence of the applicant’s actions, the element of causation was not made out. The judge had to direct the jury that if they found that the complainant penetrated herself because of anger and wounded pride, causation would not be proven. Orally, counsel submitted that a ‘willed act’ — in this case, SY’s digital penetration of her vagina — ‘will only continue to be the cause where that willed act was in fact brought about by fear of harm, force, fraud, deceit, those categories’. Failure to so direct the jury caused the trial to miscarry.
Furthermore, so far as the element of non-consent was concerned, counsel for the applicant submitted that the judge failed to direct the jury that they could not apply the circumstance of fear of harm to deem non-consent unless it found beyond reasonable doubt that that circumstance existed. This alone caused a substantial miscarriage of justice. The deemed circumstance of non-consent (fear of harm) is enlivened only if the prosecution can establish beyond reasonable doubt submission because of fear of harm. Counsel submitted that it is insufficient that penetration take place while fearing harm (concurrently with other emotions such as anger and offence). If the jury could not exclude that the complainant acted because of anger and wounded pride, they could not be satisfied beyond reasonable doubt she submitted because of fear of harm.
The respondent’s submissions
Counsel for the respondent submitted that, based on ‘puttage’ at trial by defence counsel, the defence case was that penetration did not occur. It was not put to SY that she penetrated herself of her own volition or free will, or out of anger or to restore her pride in the face of the applicant’s accusations of an affair and verbal abuse, rather than out of fear of harm. Nor was it put to SY that she was consenting to the act of penetration. It was simply put to her that she was making up the allegation of sexual penetration because she was angry and offended by the applicant’s behaviour. And in his final address, defence counsel addressed the issue of causation only ‘obliquely’, essentially arguing that the evidence that the prosecution could rely upon to establish that the applicant caused the complainant to penetrate herself was that he told her to do it. Defence counsel did not argue, however, that the only reason the complainant penetrated herself was out of a sense of anger or personal offence. Hence, the respondent’s counsel argued, the applicant was seeking to run a different defence in this Court.
The respondent’s counsel submitted that the judge correctly directed on consent in conformity with s 61 of the JDA. Thus, the trial judge directed the jury that the third element of rape — that SY did not consent to sexually penetrating herself — must be proven beyond reasonable doubt, and that the prosecution relied upon the circumstance that SY submitted to the act because of the fear of harm of any type, to satisfy the jury beyond reasonable doubt that she did not consent. Given that s 46(4) of the JDA had not been engaged, there was no occasion to direct the jury as contended for by the applicant’s counsel.
Counsel for the respondent submitted that the primary issue in the present case was whether sexual penetration occurred. The directions given by the trial judge adequately identified that as the real issue in the case and instructed the jury on so much of the law as was necessary to enable the jury to resolve that issue.
In oral submissions, the respondent’s counsel contended that, in submissions in this Court, the applicant’s counsel conflated the ‘intentionally cause’ element and the element of consent in a manner that the legislature did not intend.
Further, the respondent’s counsel submitted that the applicant’s argument that the judge’s directions on causation should have incorporated a prescriptive common law test cannot be accepted. Counsel relied on a publication titled Victoria’s New Sexual Offence Laws: An Introduction, published by Criminal Law Review Department of Justice and Regulation, as providing an explanation and guidance of the offence created by s 39(1) of the Crimes Act 1958.[7] As I understood her oral submissions, the respondent’s counsel contended that, as part of the interpretive task, the ‘express intention of Parliament’ could be gleaned from this publication. It is clear that, counsel submitted, that the intention of the legislature was to leave open what facts might constitute ‘intentionally cause’ for the purposes of s 39. In particular, counsel relied on the following passage from that publication:[8]
The term ‘compel’ is not expressly defined in the Act. Instead, the concept of compelling is substantiated in the two elements of causing the complainant to perform the relevant sexual act and the complainant not consenting to doing that act. How the accused might ‘cause’ the complainant to so act can be left relatively open. It doesn’t always require force or threats. It could, for example, involve deception. What matters is that the complainant does not consent to doing the act, but is caused or made to do so by the accused. That constitutes the essence of compelling a person to do something.
[7]See [21] above.
[8]At p 20. (My emphasis.)
Counsel submitted orally that, although ‘compelling sits at the head of s 39, there was a deliberate decision by the legislature not to define that term. Instead, the concept of ‘compelling’ is found in the two elements of causing the complainant to perform the relevant sexual act coupled with the complainant’s non-consent. It was intended that those two elements were to be considered separately by the jury. Counsel argued: ‘How the accused might cause the complainant to so act can be left relatively open. It doesn’t always require force or threats. It could, for example, involve deception. What matters is that the complainant does not consent to doing the act, but is caused or made to do so by the [applicant], and that constitutes … the essence of compelling a person to do something’. And she submitted that ‘if the jury were not satisfied that [the penetration] wasn’t of her own volition — that she had done this because she was angry or because she was trying to restore a sense of pride — then that would come under the consent element’.
Finally, counsel for the respondent submitted that there was no exception taken to the judge’s directions by defence counsel, and there was no substantial and compelling reason under s 16 of the JDA to direct the jury in the manner now contended for by the applicant’s counsel.
Discussion and analysis
Section 39(1) of the Crimes Act 1958 in its current form — as substituted by the Crimes Amendment (Sexual Offences) Act 2016 — replaced the former ss 38(3) and 38A (which themselves had been introduced by the Crimes (Sexual Offences) Act 2006). The apparent aspiration for s 39(1) was that it would create a ‘clearer and simpler’[9] (or ‘simpler and clearer’)[10] sexual offence than the offences created by the legislative provisions it replaced. Unhappily, however, as the present case demonstrates, the aspiration held for s 39 was not realised.
[9]See Crimes Amendment (Sexual Offences and Other Matters) Bill 2014, Second reading, Parliamentary Debates, Legislative Assembly, 2933, Mr Clark (Attorney-General).
[10]See Criminal Law Review Department of Justice and Regulation, Victoria’s New Sexual Offence Laws: An Introduction, 49.
So far as presently relevant, s 39(1) of the Crimes Act 1958 provides:
39 Rape by compelling sexual penetration
(1) A person (A) commits an offence if—
(a)A intentionally causes another person (B)—
…
(ii) to sexually penetrate themselves;
…and
(b)B does not consent to the sexual penetration; and
(c)A does not reasonably believe that B consents to the sexual penetration.
By reason of s 35A(2)(a), a person sexually penetrates themselves if the person introduces a part of their body or an object into their own vagina.
At the time of the alleged offence, s 36(1) provided that ‘consent means free agreement’. And, so far as relevant, s 36(2) — apparently relied upon by the prosecution at trial — provided:
(2) Circumstances in which a person does not consent to an act include, but are not limited to, the following—
…
(b) the person submits to the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else … ; …
Notably, s 36(2)(b) did not spell out the nature of the harm contemplated, and its precise boundaries have not been authoritatively determined. Since the provision speaks of ‘harm of any type’, however, it is clear that s 36(2)(b) was intended to at least embrace physical or psychological injury. By way of contrast, the current s 36AA(1)(b) expressly notes that it does not matter when the fear arose, or whether the fear is the result of a single incident or as part of an ongoing pattern. It also contains examples of the kinds of harm which might qualify for the purpose of the section, including economic or financial harm, reputational harm, harm to other relationships or employment, psychological abuse and harm to mental health or sexual harassment.
Furthermore, s 36A(1) provided that ‘[w]hether or not a person reasonably believes that another person is consenting to an act depends on the circumstances’.
Returning to s 39(1), it is curious that, although s 39 is headed ‘Rape by compelling sexual penetration’, no form of the transitive verb ‘compelling’ is to be found in the body of the section. It thus stands in stark contrast to the provisions it replaces, which specifically used the verbs compel and compels.
As I have indicated, the offence created by s 39(1) replaced previous offences created by two previous provisions of the Crimes Act 1958, s 38(3) and s 38A, both of which had been introduced into the Crimes Act 1958 by the Crimes (Sexual Offences) Act 2006. Before its repeal, s 38(3) provided:
(3) A person (the offender) also commits rape if he or she compels a person—
(a) to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or
(b) who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.
And s 38A was in the following terms:
38A Compelling sexual penetration
(1) A person must not compel another person to take part in an act of sexual penetration.
Penalty: Level 2 imprisonment (25 years maximum).
(2) A person (the offender) compels another person (the victim) to take part in an act of sexual penetration if—
(a) the offender compels the victim to introduce (to any extent) an object or a part of his or her body into his or her own anus or, in the case of a female victim, her own vagina, other than in the course of a procedure carried out in good faith for medical or hygienic purposes; or
(b) the offender compels the victim to take part in an act of bestiality within the meaning of section 59.
(3) For the purposes of subsection (2), a person compels another person (the victim) to take part in an act of sexual penetration if the person compels the victim (by force or otherwise) to engage in that act—
(a) without the victim’s consent; and
(b) while—
(i) being aware that the victim is not consenting or might not be consenting; or
(ii) not giving any thought to whether the victim is not consenting or might not be consenting.
Neither ‘compel’ nor ‘compels’ were defined for the purposes of ss 38(3) or 38A, although s 38A(3) contemplated that a person might compel a person to engage in an act of sexual penetration ‘by force or otherwise’. Presumably, therefore, the verb compel was to be given its ordinary English meaning, which, according to the Oxford English Dictionary includes:
To urge irresistibly, to constrain, oblige, force: a. a person to do a thing (the usual [construction]).
Before endeavouring to construe s 39(1) in its current form, I note that the author (or authors) of the publication, Victoria’s New Sexual Offence Laws: An Introduction, published by Criminal Law Review Department of Justice and Regulation, relied upon by the respondent,[11] apparently considered that s 39(1) criminalises essentially the same conduct as its legislative forerunners:[12]
This offence covers conduct that was previously covered by old sections 38(3) and 38A of the Crimes Act, even though the essence of the offending conduct is the same: making another person perform an act of sexual penetration without consent.
[11]See [43] above. See also [22].
[12]See p 7 [3.2].
As I have mentioned, the respondent’s counsel contended that the ‘express intention of Parliament’ could be ascertained from this publication. I cannot agree. Although s 35(b) of the Interpretation of Legislation Act 1984 provides that, in the interpretation of an Act, consideration may be given to ‘any matter or document that is relevant including but not limited to … (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies’, any views expressed in the publication can only be a reflection of the unnamed author’s (or authors’) opinion of how the legislation is intended to operate. The publication does not speak with the voice of the legislature. It certainly cannot be said to reflect the express intention of Parliament. Therefore, as tempting as it might be to adopt the opinion expressed in the publication that the offence created by s 39 ‘covers conduct that was previously covered by old sections 38(3) and 38A’, and that ‘the essence of the offending conduct is the same’, I do not regard it as proper to have recourse to the publication to assist in the interpretive task.
Returning once more to the text of s 39(1), the subsection provides that a person commits an offence if he or she ‘intentionally causes’ another person to sexually penetrate themselves (in circumstances where the person penetrated does not consent to the sexual penetration, and the person who intentionally causes the penetration does not reasonably believe that the person penetrated consents to the sexual penetration). There is, however, no attempt to define the word ‘causes’ (or the expression ‘intentionally causes’) in the Act.

The transitive verb cause (and its third person singular present indicative form causes) enjoys different shades of meaning, depending on context. One definition given to cause by the Oxford English Dictionary is:
To be the cause of; to effect; bring about; produce; induce; make.
And one of the meanings provided by the Meriam-Webster Dictionary online is:
[T]o compel by command, authority, or force.
To risk repetition, the heading to s 39 is ‘Rape by compelling sexual penetration’. By virtue of s 36(2A) of the Interpretation of Legislation Act 1984, the heading forms part of the Act. It is therefore legitimate to have regard to the section’s heading when endeavouring to assign a meaning to the verb causes as used in s 39(1). That is particularly so in circumstances where the language employed by the legislature in the body of the provision is, in my view, somewhat imprecise and ambiguous. Hence, notwithstanding that no derivative of the verb ‘compelling’, as used in the heading, is to be found in the body of the section, I consider that the verb ‘causes’ must draw meaning from the word ‘compelling’. In that respect, guidance as to the applicable rules may be derived from what Murray CJ said in Ragless:[13]
I think the rules … may be stated thus:
1.   If the language of the sections is clear, and is actually inconsistent with the headings, the headings must give way.
2.   If the language of the sections is clear, but although more general, is not inconsistent with the headings, the sections must be read subject to the headings.
3.   If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.
[13]Ragless v Prospect District Council [1922] SASR 299, 311. See also Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 618 (McHugh J); S & A Gallo Pty Ltd v Hollowood Pty Ltd (2012) 114 SASR 127, 139 [37] (Nicholson J); R v Mailes (2001) 53 NSWLR 251, 272 [105] (Wood CJ at CL); Gors (by his Plenary Administrator Janet Christine Gors) v Tomlinson (2020) 56 WAR 144, 161 [97] (Quinlan CJ, Murphy and Vaughan JJA).
I consider that, when read in the context in which it appears, the natural and ordinary meaning of causes is akin to compels. As used in s 39(1), therefore, ‘causes’ carries with it the notion of compulsion: force, impel, make, and similar. In light of that conclusion, it is readily apparent that the judge’s directions on the element ‘intentionally causes’ were deficient.
Hence, although, at a superficial level, the trial judge correctly identified the elements of the offence created by s 39(1), she did not give the jury sufficient assistance as to the second element, that the applicant ‘intentionally caused’ (SY to sexually penetrate herself). To merely repeat the statutory language was insufficient to bring home to the jury that ‘causes’ carries with it the notion of compulsion. In circumstances where the element was in dispute, it was the judge’s duty to explain to the jury what they had to find in order to be satisfied beyond reasonable doubt that the applicant had caused the result in question.
For the purposes of this case, the elements of the relevant charge were:
·    first, SY sexually penetrated herself (by penetrating her vagina with a finger or fingers); and
·    secondly, the applicant intentionally caused SY to sexually penetrate herself;
·    thirdly, at the time that she sexually penetrated herself, SY was not consenting to sexual penetration (that is, she was not freely agreeing to sexual penetration, and — given the way in which the case was put by the prosecution — only submitted to the act of penetration because of force, a fear of force, harm of any type or a fear of harm of any type, by or from the applicant); and
·    fourthly, at the time the applicant intentionally caused SY to sexually penetrate herself, he did not reasonably believe that SY consented to the sexual penetration.
I will later once more return to the meaning of the expression ‘intentionally causes’, and the nature of the further directions that the judge was required to give to the jury. Before doing so, however, it is necessary to deal with the issue of causation, the subject which occupied much of the argument in this Court.
At a fundamental level, causation for the purposes of the criminal law is the link between the conduct of an accused person — whether an act or omission — and its consequences. It connotes the relationship between an accused person’s act (or omission) and the consequences it produces. For the purposes of the criminal law, causation identifies the circumstances in which a proscribed result may be attributed to an act (or omission) of an accused person. To attract criminal liability, however, the accused person’s act (or omission) must be a sufficiently ‘proximate’ cause of the proscribed consequence.
The majority of cases bearing on causation in the criminal law have been cases of homicide.[14] Against that backdrop, the proper test to be applied for the purposes of determining causation has been formulated in various ways.[15] As was observed by this Court in Robb,[16] Robert Goff LJ stated in Pagett[17] that ‘it is usually enough to direct [the jury] simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result’.
[14]Strict liability offences appear to make up the next major contributor to this area of discourse.
[15]Robb v The Queen [2016] VSCA 125, [55] (Ashley, Osborn and Priest JJA) (‘Robb’).
[16]Robb, [52].
[17]R v Pagett (1983) 76 Cr App R 279, 288 (‘Pagett’).
One of the cases referred to in argument by counsel, Royall,[18] was a case of murder in which, in the course of a violent interlude with her de facto, a woman fell, was pushed or jumped out of a sixth floor window, occasioning her death. One of the three ways in which the prosecution case for murder was put against her partner was that the deceased died after jumping out of the window to avoid a violent attack. On appeal, differing formulations of causation were advanced by the members of the High Court. Mason CJ considered that the principle of causation depended on whether the result is a natural consequence of the accused’s conduct.[19] Brennan J expressed the view that the relevant act (or omission) of the accused ‘must contribute significantly to the death of the victim’;[20] Deane and Dawson JJ held that it would be sufficient if the accused’s conduct ‘is a substantial or significant cause of death’;[21] Toohey and Gaudron JJ appeared to state the inquiry to be ‘whether the act of the accused substantially contributed to the death’;[22] while McHugh J expressed the view that the ‘test of reasonable foresight is to be preferred to the “natural consequence” test and the “operating cause and . . . substantial cause” test’.[23]
[18]Royall v The Queen (1991) 172 CLR 378 (‘Royall’).
[19]Ibid 389–90.
[20]Ibid 398. See also Swan v The Queen (2020) 269 CLR 663, 674 [24].
[21]Royall, 411.
[22]Ibid 423.
[23]Ibid 449. See also Arenson, KJ, Causation in the Criminal Law: A Search for Doctrinal Consistency, (1996) Crim LJ 189, 207 et seq.
In a later case, Franklin, Brooking JA spelled out the principles relating to the law of causation in cases involving homicide in the following terms:[24]
It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the ‘main’ or ‘most substantial’ cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a ‘significant’ or ‘substantial’ cause of death. … The issue of the cause of death is of course one of fact for the jury … Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. … The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.
One such category is that of the infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case, where there is no complicating factor which may be put forward as ‘breaking the chain of causation’, it is enough for the jury to inquire whether the attack of the accused made a substantial contribution to the death. … .
[24]R v Franklin (2001) 3 VR 9, 28–29 [54]–[55]; see also R v Lam (2008) 185 A Crim R 453, 467–9 [61]–[64]; R v Withers [2009] VSCA 306, [135]–[136]; Aidid v The Queen (2010) 25 VR 593, 602 [61] (Ashley JA).
In cases in which the question arises whether an action of the victim (or a third party) subsequent to the accused person’s act (or omission) has the effect of breaking the chain of causation between his or her act (or omission) and the death or injury of the victim, the answer appears to depend on whether, notwithstanding the subsequent action of the victim or the third party, the action of the accused remains a substantial and operative cause of the victim’s death or injury.[25] An example is provided by Evans (No 2), in which it was held that the test to be applied in determining whether an act caused death was whether, in spite of the intervening act, it is still an operating and substantial cause of death.[26]
[25]See for example R v Lam (2005) 15 VR 574, 578–9 [13]–[16], 581 [23] (Redlich J); R v Lam (2008) 185 A Crim R 453, 467 [58]–[59] (Buchanan, Vincent and Kellam JJA); McAuliffe v The Queen (1995) 183 CLR 108, 118–19 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).
[26]R v Evans & Gardiner (No 2) [1976] VR 523, 529 (‘Evans (No 2)’). See also R v Rudebeck [1999] VSCA 155, [66] (‘Rudebeck’); R v Smith [1959] 2 QB 35, 42–3 (‘Smith’); R v Hallett [1969] SASR 141, 150 (‘Hallet’).
So far as offences created by statute are concerned, Feketa[27] was an early case relating to the statutory offence of culpable driving causing death, created by s 318(1) of the Crimes Act 1958.[28] When construing s 318(1) — and, in particular, the meaning of the word ‘causes’ in the expression ‘by the culpable driving of a motor car causes the death of another person’ — the Court observed that ‘the word “causes” must be construed in its legal sense; that is as denoting a causa causans and not merely a causa sine qua non’.[29] In other words, the culpable driving must be the immediate cause (causa causans) — the last link in the chain of causation — as distinct from some preceding link (causa sine qua non) but for which the immediate cause (causa causans) would not have become operative.[30]
[27]R v Feketa (1982) 10 A Crim R 287 (Young CJ, Murray and Marks JJ) (‘Feketa’). See also R v Ciantar (2006) 16 VR 26, 34–6 [25] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).
[28]Section 318 was introduced by the Crimes (Driving Offences) Act 1967, s 3.
[29]Feketa, 290.
[30]Osborn’s Concise Law Dictionary (12^th ed, 2013) Sweet & Maxwell; Jowitt’s Dictionary of English Law (3^rd ed, 2010) Sweet & Maxwell.
Based on a review of authority, I consider that, for the purposes of the offence created by s 39(1) of the Crimes Act 1958, rape by compelling sexual penetration, a person is only criminally liable under the subsection if his or her conduct is the immediate cause of sexual penetration. In other words, the accused person’s act — it is difficult to conceive of a case where an omission might qualify — must be the proximate cause of the proscribed consequence, sexual penetration.
Moreover, as I have endeavoured to convey, I consider that the word ‘causes’ carries with it the notion of some form of compulsion. In a case such as the present, a person will not be guilty of rape by compelling sexual penetration unless the accused person, by his or her conduct, compels, forces or makes another person sexually penetrate themselves, such conduct being the immediate cause of the other person doing so. Furthermore, given the use of the word intentionally in the expression ‘intentionally causes’, the person exercising some form of compulsion must intend that the person subject to compulsion will sexually penetrate themselves. Thus, for example, a mere suggestion or request that a person sexually penetrate themselves, unaccompanied by any form of compulsion, would not be caught by s 39(1).
In her evidence, SY gave various explanations for putting her finger into her vagina. They included:
·    ‘I done that because I want to show him that I have not [been] sleeping with a man because [his] words [were] very, very offensive, and [it was] very hurtful’.
·    ‘Because I want to tell him that I value myself and I’m the honest woman and I take pride of what I do ... because this is my honour … what he had done to me, he not a gentleman because gentlemen need to respect the woman’.
·    ‘Because the word that he used, it hurting me emotionally, that he say I’m a dirty woman, I’m a very cheating, I’m sleeping with a man. That mean I don’t value myself. That’s how I feel’.
·    ‘The reason also because of the threatening previously as well’ (that ‘threatening’ having occurred four or five weeks earlier).
·    ‘The reason, first of all, is fear for the children’s safety; secondly, fear for my safety because he is at home, and then when I fall asleep, I don’t know what he’s going to do next. That’s the reason that I have to obey him and do it’.
·    The reason she feared for her safety was ‘because all the word he had threatening from the – previously, such as killing me and put me in the freezer, mow me down with the car’, and ‘the way that he swear at me in front of my children on that day and yelling to the children very offensive word’.
·    She put her finger in her vagina because ‘it will be flashback the past, killing me, put me in the fridge, drive the car and mow me down. That is the fear that I got in my head. That’s the reason I – I do it’.
·    ‘I remember because when I been choked and strangled’.
Much of SY’s evidence was apt to convey, in effect, that she sexually penetrated herself to vindicate her honour, and to demonstrate to the applicant that his allegations of sexual involvement with another man were untrue. Self-evidently, if the complainant sexually penetrated herself solely for such a reason, the applicant’s request or suggestion that she put her finger in her vagina could not be said to be the cause of the sexual penetration.
But perhaps more importantly — in circumstances where the prosecution case was that SY complied with the applicant’s direction, suggestion or request to penetrate her vagina with her finger because she was afraid for her safety[31] — there was no demonstrated causal connection between SY’s subjectively expressed fear for her (and her children’s) safety and the act of sexual penetration. Nothing that the applicant said to SY in the leadup to her self-penetration threatened SY (or her children) with violence if she did not comply with his request that she put her finger into her vagina. On the evidence at trial, nothing that the applicant said in the interchange between him and SY preceding the penetration could properly have founded an inference that he had conveyed to SY that if she did not comply with his request that she place a finger into her vagina she (or her children) would be subjected to harm. So much needed to be made clear to the jury. It was not.
[31]See [20] above.
Given the foregoing, the trial judge’s directions on the ‘second element’ plainly were deficient. It was insufficient for the judge to direct the jury simply in the terms of the statutory language, with the added gloss terms that ‘intentionally caused’ the complainant to sexually penetrate herself meant that the applicant ‘actually meant the complainant to do it, he was not teasing her. Moreover, it was a significant misdirection for the judge to direct the jury that the element does not involve ‘compulsion or force’ (concomitantly potentially diminishing defence counsel’s arguments in the eyes of the jury to the detriment of the applicant).
Quite apart from the misdirection on the second element, I consider that the judge’s directions to the jury were deficient in another important respect. Thus, when it came to the further (third) element concerning the complainant’s alleged non-consent to sexual penetration, it was necessary for the judge to direct the jury that, before they could apply the ‘circumstances’ of ‘force, a fear of force, harm of any type or a fear of harm of any type’ to deem non-consent, they had to be satisfied beyond reasonable doubt that the circumstances existed.[32] As to that, I consider that there was no evidence fit for the jury’s consideration that the applicant overcame the absence of SY’s free agreement to sexual penetration by threatened force or harm. The evidence simply could not support a finding that SY submitted to sexual penetration ‘because of force, a fear of force, harm of any type or a fear of harm of any type’, whether to her or her children.
[32]That the person penetrated ‘does not consent’ to sexual penetration is an element of the offence. See JDA, s 61(a).
SY’s evidence was that the applicant accused her of having sex with another man. He asked her to put her finger in her vagina. Her evidence was that he told her that she needed to put her finger in her vagina, and if there is sperm present it would come out. The applicant said this to her in a ‘high tone’, and she talked back to him with ‘harsh words’ as well. He said: ‘You just need to put your finger on your vagina because you sleep with a man’. It was said several times in an ‘ordering tone of voice’ at ‘very high volume’. There was a complete absence of evidence, however, that when she penetrated herself SY did so as a result of any proximate force or harm of any type inflicted by the applicant, or because of a fear of force or harm of any type engendered by some proximate statement or conduct of the applicant. In that regard, the highest SY’s evidence got was that the applicant had threatened her some four or five weeks earlier, in circumstances that did not appear to have any sexual connotation.

Conclusion: Conviction

For the foregoing reasons, the ground of appeal with respect to conviction must succeed.
Given that it could not properly be contended that there has been other than a substantial miscarriage of justice, the application for an extension of time within which to seek leave to appeal against conviction must be granted; leave to appeal must also be granted; the appeal must be allowed; and the conviction on charge 3 must be set aside.
Since I consider that the evidence at trial could not properly make out an alleged offence under s 39(1) of the Crimes Act 1958, I would enter a judgment of acquittal.

Sentence application

Given my conclusions with respect to conviction, much of the ground of appeal with respect to sentence falls away. In particular, there is no need to consider whether the order for cumulation is manifestly excessive. As to the remaining aspect of the ground, there is force in the contention that the sentence of four months’ imprisonment on the charge of recklessly causing injury is manifestly excessive.
The charge of recklessly causing injury arose out of an argument between the applicant and SY on 13 November 2019, when the applicant was standing in the doorway of SY’s bedroom, and she was in bed with her infant son. In the course of the argument, the applicant threw a remote control for an air conditioner at SY, striking her in the eye and causing bruising.

For a man with no prior convictions, I consider a sentence of four months’ imprisonment following a plea of guilty — where there were both Worboyes[33] and Verdins[34] considerations in play — to be, in the circumstances of this case, manifestly excessive.

[33]Worboyes v The Queen (2021) 96 MVR 344.

[34]R v Verdins (2007) 16 VR 269.

I would therefore grant the required extension of time; grant leave to appeal; allow the appeal; and set aside the sentence on that charge.
Given that the applicant has already served the period of imprisonment on the charge of recklessly causing injury, I would sentence him on that charge to be convicted and discharged.

NIALL JA
ORR JA:

We have had the benefit of reading in draft the reasons of Priest JA. His detailed exposition of the facts and the course of the trial relieves us of the obligation to set out those matters again. In summary, the judge erred in failing to properly direct the jury on the approach to be taken to the element of causation in s 39(1) of the Crimes Act1958. However, we respectfully disagree with Priest JA that the requirement in s 39 that the accused person ‘cause[]’ another person to engage in an act of sexual penetration requires the accused person to compel or force the person to engage in that conduct. The manner in which the accused’s acts or omissions must cause the act of penetration is not confined to acts of compulsion or force. We also disagree with Priest JA that it is necessary for the accused’s acts or omissions to be the ‘immediate’ or ‘proximate’ cause of the other person’s act of penetration. The judge should have directed the jury that the acts or omissions of the applicant had to be a significant or substantial cause of the complainant’s act of self-penetration. The failure to direct the jury properly on causation occasioned a substantial miscarriage of justice. It follows that ground 1(b) of the grounds of appeal in the application for leave to appeal against conviction should be allowed.[35]
[35]Ground 1(b) contended that a substantial miscarriage of justice was occasioned by erroneous and inadequate directions of law as to the elements of charge 3, in that there was a ‘failure to provide a workable test for satisfaction of the element of causation’.
An extension of time should be granted, leave to appeal against conviction granted, the appeal allowed and a retrial ordered. We agree with Priest JA’s reasons and proposed orders in relation to the application for leave to appeal against sentence.
Principles relevant to causation
In I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd, in a very different context, Gaudron, Gummow and Hayne JJ explained some of the difficulties that attend identifying causation in a legal setting:
There may be many acts or omissions that could be said to have contributed to the happening of an event. As has often been mentioned in learned articles on the subject of causation, the decision of a tortfeasor’s great-great grandmother to have children can be identified as one factual cause for an event which is the subject of litigation. To search for the single cause of an event is, therefore, to pursue an illusion. And, much more often than not, to speak of the ‘effective cause’ or the ‘proximate cause’ (or to use some similar expression) is to hide important assumptions that are made, or conclusions that are reached, about the

attribution of responsibility for particular kinds of act or omission. That is why it is necessary to understand the purpose for making some inquiry about causation. Only when the purpose of the inquiry is known is it possible to identify and articulate how and why some circumstances are extracted ‘out of the whole complex of antecedent conditions of an event’ and identified by the law as a cause of it.[36]
[36](2002) 210 CLR 109, 128 [56]; [2002] HCA 41 (citations omitted) (‘HTW’).

Because causation commonly provides an ingredient for legal responsibility or liability in various contexts, both civil and criminal, it is often discussed in terms of both factual causation and the attribution of liability. In the context of the criminal law, it is important to bear in mind that the law is generally concerned with conduct (acts or omissions) that bring about certain consequences. Two limiting factors are causation and fault. The former ensures that liability attaches to the consequences that can be sheeted home to the accused and the latter serves to bring together moral culpability and legal responsibility.
As the passage quoted from HTW demonstrates, whether one act is to be regarded as a cause of another act depends very much on the context in which the question arises. On one approach, often described as ‘but for’ causation, an act or omission will be the cause of another event if the other event would not have happened without it. That potentially covers a very wide range of matters. In the context of the criminal law, causation is generally confined to those acts or omissions that play a material role in bringing about the relevant act. Generally, an act does not need to be the sole cause of the result to establish causation. A person can be criminally liable for something that has multiple causes, even if they are not responsible for all of those causes.[37] In that way, the acts or omissions more closely align with the responsibility for the criminal act than would be the case if a ‘but for’ causation test were applied.
[37]Royall v The Queen (1991) 172 CLR 378, 398 (Brennan J), 411–12 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 441 (McHugh J); [1991] HCA 27 (‘Royall’); R v Stein (2007) 18 VR 376, 384 [26] (Kellam JA, Vincent JA agreeing at 377 [1], Neave JA agreeing at 377 [2]); [2007] VSCA 300; R v Withers [2009] VSCA 306, [133] (Buchanan, Ashley and Weinberg JJA); R v Aidid (2010) 25 VR 593, 602–3 [61]–[62] (Ashley JA, Weinberg JA agreeing at 612 [101], Coghlan AJA agreeing at 612 [102]; [2010] VSCA 56.
Causation raises particular difficulties in circumstances where the relevant conduct is engaged in by a person other than the accused. Usually, in the context of the criminal law, the relevant act is the actus reus of the offence and the person who commits the act is regarded as the principal. Criminal responsibly for persons who do not commit the relevant act but play some antecedent role in its commission are usually addressed through complicity principles, such as the doctrine of acting in concert and the law in relation to innocent agents, which addresses the scenario where a person procures another innocent person to perform the criminal act. Section 39(1)(a)(ii) provides a further variant where the physical act is performed by the victim themselves, and would likely be harmless (and well outside the scope of the criminal law) if done with that person’s consent.
In Royall, the statutory requirement that the act of the accused ‘caus[e] the death charged’ was said to require that the jury be satisfied that the act of the accused was ‘a substantial or significant cause of death’ or a ‘sufficiently substantial’ cause.[38] As explained in Swan v The Queen, that requirement reflects the circumstances in which it is appropriate to ascribe criminal responsibility: ‘boundaries must be drawn for legal responsibility; not every act that is necessary for death to occur is sufficient for the imposition of legal responsibility for the death’.[39]
[38]Royall (1991) 172 CLR 378, 411–12 (Deane and Dawson JJ); [1991] HCA 27; see also at 398 (Brennan J), 423 (Toohey and Gaudron JJ), 442 (McHugh J).
[39](2020) 269 CLR 663, 674 [24] (Bell, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 11.
In R v Franklin, another case of homicide, Brooking JA discussed the role of causation in the criminal law.[40] The issue of causation arose because in a trial of multiple accused for murder, the trial judge had directed the jury that the acts of one or more of the accused could be attributed to another of the accused on the basis that he had exercised control over them. That is, the accused should have the acts of the other men attributed to him so that he may be regarded as having caused the injuries that they inflicted. Justice Brooking regarded this as a fallacious approach. Drawing on the work of Hart and Honoré, Brooking JA observed that ‘for the purposes of the criminal law one person does not cause another to act where the act of that other is wholly voluntary’.[41] An act will not be wholly voluntary where it is induced by coercion, threats or deceit, but it will be wholly voluntary where it was merely induced by persuasion or a request or promise of reward.[42] To that effect, Brooking JA quoted the following observation of Professor Kadish:
As Hart and Honoré’s study has shown, a voluntary action is treated as the terminal point of a causal inquiry beyond which the inquiry does not usually proceed. The primary party’s voluntary act is his own action. No one and nothing caused him to act as he did. He chose to act.[43]
[40](2001) 3 VR 9, 24–5 [46]ff; [2001] VSCA 79 (‘Franklin’).
[41]Ibid 26 [49], citing HLA Hart and Tony Honoré, Causation in the Law (Oxford University Press, 2^nd ed, 1985), 52–7, 336–7, 363–4, 380–1.
[42]Franklin (2001) 3 VR 9, 26 [49], 27 [51]; [2001] VSCA 79.
[43]Ibid 26 [49], quoting Sanford H Kadish, ‘Complicity, Cause and Blame: A Study in the Interpretation of Doctrine’ (1985) 73 California Law Review 323, 405.
Construction of s 39(1) of the Crimes Act
Of course, principles applied in one context may not be apt in another and ultimately the proper approach to an element of causation in a statutory offence is to be determined through the process of statutory construction. That process involves the interpretation of the text, in the light of its context and purpose, to bring about a harmonious result.
Starting with the text, s 39(1) of the Crimes Act proscribes a situation in which a person (A) ‘intentionally causes another person (B)’ to do a certain act (‘sexually penetrate’)[44] in circumstances in which B does not consent to the sexual penetration and A does not reasonably believe that B consents to the sexual penetration. The requirement of intention is important. By their acts or omissions, A must intend to bring about a certain result, namely the act of penetration. The acts or omissions of A must cause the act of penetration to be performed by B. We reject the submission of the respondent that the element of intentionally causing the act of penetration is only concerned with the state of mind of the accused. Of course, the intention to bring about a result is directed to the mental state of the accused and refers to what they subjectively intend to bring about. But intent is tied to causation which, in this context, must be concerned with the reason why B engaged in the act of penetration, in this case self-penetration.
[44]Various acts of sexual penetration are listed in s 39(1)(a): A must intentionally cause B ‘(i) to sexually penetrate A; or (ii) to sexually penetrate themselves; or (iii) to sexually penetrate another person (C) or an animal; or (iv) to be sexually penetrated by C or by an animal’.
In our opinion, the ‘but for’ test of causation can readily be discounted. In the context of a provision creating a serious criminal offence,[45] it would be too broad and is unlikely to have been intended. It is not enough that the accused merely supplied a factual precondition, one of potentially many, to the act of penetration. Notably, the provisions dealing with various sexual offences in the Crimes Act employ a range of concepts to pick up various forms of conduct including ‘causes’, ‘allows’, ‘facilitates’[46] and ‘encourages’.[47] So, for example, in the context of sexual assault of a child under 16, s 49D refers both to conduct that ‘causes’[48] and conduct that ‘causes or allows’,[49] which suggests that ‘causes’ is in that context intended to cover more overt or positive acts on the part of the offender rather than merely permitting an act to occur. In contrast, there is no attempt in s 39 to extend the scope of the provision beyond those acts which intentionally ‘cause’ the act of penetration.
[45]The maximum penalty for the offence is 25 years’ imprisonment: s 39(2).
[46]See, eg, Crimes Act, s 49S.
[47]See, eg, ibid, s 49L.
[48]Section 49D(1)(a)(iii).
[49]Section 49D(1)(a)(ii).
The real contest is whether the requirement in s 39(1) that an accused ‘intentionally causes’ an act of sexual penetration requires, as the applicant submits, the acts or omissions of the accused to overbear by force or threat the free will of the other person. In considering this issue, two aspects of the provision are relevant: the interrelationship between the elements of causation and consent and the heading to s 39, which contains the words ‘compelling sexual penetration’.
The analysis undertaken by Brooking JA in Franklin referred to above reveals that whether a person causes another person to do an act may, in some contexts, depend on whether or not the act done by that other person is ‘wholly voluntary’. That is, the issue of causation requires consideration of the effect that the relevant act or omission has on the mind of the person engaging in the act.
It is significant that s 39(1) relevantly requires both that the accused intentionally cause the act of penetration to occur and that it occur in circumstances where the person who engaged in the act of self-penetration does not consent. In the latter respect, the section addresses the mental state of the person who engages in the act of penetration in a specific way, through the consent element. Further, consent was defined at the relevant time in a way that extended to a broad range of circumstances accommodated by the notion of ‘free agreement’.[50] Circumstances in which a person does not consent included where the person submits to the act because: of force or the fear of force, whether to that person or someone else; of a fear of harm, whether to that person or someone else; they are so affected by alcohol as to be incapable of consenting to the act; they are incapable of understanding the sexual nature of the act or are merely mistaken about it or about the identity of any other person involved in the act; or they do not say or do anything to indicate consent to the act.[51]
[50]Crimes Act, s 36(1). In its current form, s 36(1) speaks of ‘free and voluntary agreement’.
[51]Ibid s 36(2)(a), (b), (e), (g), (h), (i) and (l). Similar circumstances are now listed in s 36AA.
It is not uncommon for a statutory provision to deal with the same or similar concepts in an overlapping way. Similarly, it is often the case that the same facts might be relevant to proving different elements. Equally, provisions are not generally read in a way that renders different parts otiose or merely repetitive. In each case, it is necessary to read the provision as a whole to arrive at a harmonious construction.
It is very likely that the facts that establish that the acts of the accused caused the other person to penetrate themselves will also be relevant to the question of consent. Indeed, they may entirely overlap. Most obviously, the threat of harm to the person unless they engage in the act of sexual penetration will likely satisfy both causation and non-consent: proof of the threat may establish causation and negative consent. On the other hand, again depending on context, the fact that a person engages in an activity of their own free will is not necessarily inconsistent with the act being caused by another person. That is particularly so if the search is not for a sole cause of that act.
Treating causation for the purpose of s 39(1) as requiring the accused to force or compel the person to engage in the act of penetration would foreclose consideration of a range of circumstances in which the victim does not consent. It would give primacy to a narrow view of causation over the full range of issues potentially relevant to consent. It is plain that the crime of rape, and other sexual offences which depend on the absence of consent, including the offence in s 39(1), is not confined to circumstances in which the act of penetration occurs as a result of threats or an overbearing of will. A lack of consent extends to those cases in which free agreement to engage in the act of penetration is affected by a range of disabling factors including intoxication, mistake and an incapacity to understand the sexual nature of the act. In that context, the acts that might cause the penetration to occur might correspondingly be broad and cover coercion, threats, persuasion and the promise of a reward.
The applicant’s construction therefore has the effect of requiring the words ‘intentionally caused’ to be read down in a manner that is inconsistent with the way a lack of consent may be established and does not produce a harmonious result.
We have not found the heading to s 39, which refers to ‘compelling sexual penetration’, to be of much assistance in resolving the question of construction. The text of the offence provision does not use the words ‘compel’ or ‘compulsion’. It is true that the heading forms part of the Act[52] and that, where the meaning of the words used in a provision is doubtful or ambiguous, the heading can aid in the construction of those words.[53] However, the section must be construed as a whole. When the act or omission of the accused that caused the act of penetration is combined with the absence of consent of the other person, it makes sense to speak of ‘compelling’ in the sense of causing a person to do an act without their free agreement. In that sense, there is no inconsistency between the heading and the preferred construction of the words ‘intentionally cause’, so it is not necessary to confine the range of matters that cause the act of penetration to acts of the accused that force or compel the act of penetration to occur.
[52]Interpretation of Legislation Act 1984 s 36(2A).
[53]Ragless v District Council of Prospect [1922] SASR 299, 311 (Murray CJ); Victoria v Intralot Australia Pty Ltd [2015] VSCA 358, [60] (Beach and Kyrou JJA, Cavanough AJA).
Adequacy of the judge’s direction on causation
At the trial, the applicant put all of the elements of the offence the subject of charge 3, including causation, in issue. In conformity with the Jury Directions Act2015, the judge was required to give directions that assisted the jury in their task.
In our opinion, it was necessary for the judge to assist the jury by telling them that the acts or omissions of the applicant had to be a substantial or significant cause of the act of penetration but that they need not be the sole cause. There were substantial and compelling reasons for giving such a direction in accordance with s 16 of the Jury Directions Act. The failure of the judge to direct the jury properly on causation amounted to a substantial miscarriage of justice. Ground 1(b) should be upheld.
By ground 1(c), the applicant contended that there was a substantial miscarriage of justice because the judge failed to direct the jury that ‘before finding the element of causation proved it must be satisfied that the complainant’s penetration of herself was based on a well-founded apprehension of harm such as to make her submission a natural consequence of the applicant’s conduct’. For the reasons we have given, ground 1(c) does not succeed. Causation in s 39(1) does not require proof that the act of penetration was a ‘natural consequence’ of the acts or omissions of the accused person.
Adequacy of the judge’s direction on consent
By the final ground, ground 1(a), the applicant contended that there was a substantial miscarriage of justice because the judge failed to direct the jury that it must be satisfied beyond reasonable doubt ‘that the complainant submitted because of fear of harm before deeming non-consent’.

At the hearing, this argument was developed by reference to s 46(4) of the Jury Directions Act, which contains two types of directions on consent. At the time of the applicant’s trial, s 46 relevantly provided:
46Direction on consent
(1)The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on consent.
(2)In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—
(a)in the case of a request for a direction on the meaning of consent—one or more of the directions set out in subsection (3); or
(b)in the case of a request for a direction on the circumstances in which a person is taken not to have consented to an act—one or more of the directions set out in subsection (4).
Note
Section 36 of the Crimes Act 1958 provides that consent means free agreement. That section also sets out circumstances in which a person has not consented to an act.
…
(4)For the purposes of subsection (2)(b), the prosecution or defence counsel may request that the trial judge—
(a)inform the jury of the relevant circumstances in which the law provides that a person does not consent to an act; or
Note
Section 36 of the Crimes Act 1958 sets out these circumstances.
(b)direct the jury that if the jury is satisfied beyond reasonable doubt that a circumstance referred to in section 36 of the Crimes Act 1958 existed in relation to a person, the jury must find that the person did not consent to the act.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that are substantial and compelling reasons for doing so.
The parties agreed that the prosecutor requested some form of direction on consent. The prosecutor did not refer to s 46 and did not, as required by s 46(2), specify one or more of the directions set out in s 46(4). The applicant described the request as a ‘generic’ request.
The judge gave a direction in accordance with s 46(4)(a), informing the jury of the relevant circumstances in which the law provides that a person does not consent to an act — being where the person ‘submits to the act, because of a fear of harm of any type, whether to that person or someone else’. She did not give the direction in s 46(4)(b) that, if they were satisfied beyond reasonable doubt that a circumstance referred to in s 36 of the Crimes Act existed (such as the one she had identified), the jury must find that the person did not consent to the act.
The applicant submitted that the judge erred by not giving the direction in s 46(4)(b). However, he did not request such a direction, nor did he take exception when the judge did not give that direction. This may well have been a forensic decision. There may be a good reason why an accused person would not seek a direction under s 46(4)(b), given that its effect is to tell the jury that they are obliged to find an element of an offence (absence of consent) proved in certain circumstances.
In circumstances where the defence did not seek a direction under s 46(4)(b), and the judge responded to the prosecution’s ‘generic’ request by making a direction under s 46(4)(a), we are not persuaded that the judge’s directions on consent occasioned any substantial miscarriage of justice. Ground 1(a) does not succeed. Of course, on any retrial, careful attention will need to be given to the appropriate directions on consent.
Conclusion
The applicant has succeeded on ground 1(b). His conviction should be quashed and there should be a retrial.

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[2024] VSCA 246

23 October 2024