SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  This is an appeal against a conviction for rape.  The critical evidence of the complainant upon which the conviction is founded is fully set out in the reasons for judgment of Dutney J and I will not repeat that.  The issue raised by the appeal is whether or not that evidence establishes the crime of rape as defined in s 347 of the Criminal Code as it stood on 18 August 1996 when the relevant events occurred.  Section 347 was then in these terms:

"Any person who has carnal knowledge of a female without her consent or with her consent if it is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape.

In the preceding paragraph 'married woman' includes a woman living with a man as his wife though not lawfully married to him and 'husband' has a corresponding meaning".

2. It was not disputed by the appellant that he had sexual intercourse with the complainant in her home on the night in question. He was also charged with breaking and entering that dwelling house in the night time with intent to commit an indictable offence therein. That related to his entry into the house immediately before the act of intercourse. The jury returned a verdict of not guilty on the burglary count (it was unclear how he gained entry, and it could have been through an open door or window), but returned a verdict of guilty to the alternative count of entering the dwelling house in the night time with intent to commit an indictable offence therein. Thus it is clear that the appellant was not in the house at the invitation of or with the permission of the complainant; he had no lawful excuse for being there. Indeed, until after the appellant had effected penetration the complainant had no reason to believe or suspect that any person, other than the man described as her "sexual partner", was in the house.

3. The submission on behalf of the appellant was that the case did not come within the first limb of s 347 (as it was so described in argument) because the complainant consented to being penetrated - "I thought I was having sex with my partner, Graham". If that is correct, one has to consider the second limb. It was then submitted that consent was not obtained by force, or by means of threats or intimidation of any kind; that would appear to be correct on the facts. The next submission was that there was no false representation "as to the nature of the act" - the complainant realised she was "having sex"; that is an argument which requires more detailed consideration later. Finally, it was said that for two reasons this was not a case of "personating her husband". Firstly, the evidence did not establish that the complainant's "sexual partner" Graham was living with the complainant as if they were man and wife; that can be assumed to be correct for present purposes. Secondly, it was submitted that the appellant did nothing to constitute "impersonating her husband"; given the assumption that the first argument is correct it is not necessary to explore that matter further.

4. According to counsel's argument each "limb" of s 347 had to be treated strictly separately; if there was apparent consent to the intercourse, then the case could only be considered under the second limb. The submission was also made that decisions such as Papadimitropoulos v The Queen (1957) 98 CLR 249 were inapplicable to the meaning of "consent" when used in s 347, because they were not decisions on the Code.

5. The present problem can, in my view, be more readily resolved if one has regard to the history of the crime of rape. At common law rape was a felony punishable by death. During the reign of William the Conqueror a statute was passed substituting castration and loss of eyes as the maximum penalty. That was apparently perceived as too harsh a consequence and various statutes over the next couple of centuries treated rape more in the nature of a misdemeanour. Its status as a felony was restored and confirmed by a statute passed during the reign of Elizabeth towards the end of the 16^th Century.  However, so far as one can presently ascertain, the use of force or violence was an essential element of the crime all that time.  In 1728 Hawkins (Crown Law, Vol 1, p 119) defined rape as "an offence in having unlawful and carnal knowledge of a woman by force and against her will and necessarily requires some degree both of penetration and emission".  By about 1800 emission was no longer regarded as an element of the offence (Hales, Pleas of Crown [1800] Vol 1, p 627 ff and Easts Pleas of Crown [1803] 434 ff).  The definition propounded by East in 1803 (Vol 1 p 434) was "the unlawful carnal knowledge of a woman by force and against her will".  Interestingly, Hales at about the same time (Vol 1, p 627‑8) defined rape as simply "carnal knowledge of any woman against her will".  In the 5^th ed of Russell on Crime [1877], one finds a definition of rape in Vol 1 at p 858, including the words "by force and against her will".  The use of force, rather than the absence of consent, was the critical element.

6. The Criminal Law Amendment Act 1885 (Imp) introduced into English law the forerunner of what has been described as the second limb of s 347 of the Code.  That tended to place emphasis on the concept of consent, but the courts still place significance on the element of force or violence.  Many of the judges in Queen v Clarence [1888] 22 QBD 23 used the term "consent" rather than either expression "by force and against her will" or simply "against her will" in dealing with the factual situation in that case (whether the husband was guilty of maliciously inflicting grievous bodily harm by infecting his wife with gonorrhoea when she consented to intercourse not knowing of his condition).

7. Though in the 11^th ed [1958] of Russell the author refers to "free and conscious permission" (at 789) and to the fact that "submission without resistance is not necessarily tantamount to consent" (at 795) the current English definition of rape does not appear to be based simply on "consent".  In R v Morgan [1976] AC 182 one finds expressions used such as "without consent and by force" (186-7), "against her will" (196), "there has to be some violence used against the woman to overbear her will or that there has to be a threat of violence as a result of which her will is overborne" (at 208), and "by force and against her will" (at 236).  However, throughout the judgments (the case was primarily concerned with the necessary mens rea) there is frequent reference to "intercourse without consent".  The problem is undoubtedly due to the fact that by statute rape is a crime in England, but the statute contains no definition of rape.  The courts must fall back on the common law and the definitions of Hales and East are most often cited.  Against all that background the English cases must be applied with caution where there is a definition of rape such as found in s 347 of the Code.

8. Sir Samuel Griffith was clearly aware of the 1885 English statute when he drafted the Code, because it is reflected in what has been referred to as the second limb of s 347.  Undoubtedly, he was also aware of the difference of judicial opinion which had resulted in the passing of that legislation, and he would also have been aware of leading cases such as Clarence.  Sir James Stephen, whose attempts at codifying English criminal law were well known to Griffith, was one of the judges in Clarence.

9. In the circumstances the basic proposition in s 347 of the Code that rape is "carnal knowledge without consent" simplified the law as it was then being applied in England in 1900. No greater force is needed to commit the crime of rape than what is actually necessary to effect penetration; no element of violence is necessarily involved. The woman does not have to forcibly resist in order to establish the absence of consent. That is the position in most, if not all, of the Australian States (cf. R v Burles (1947) VLR 392).  It is a question of fact for the jury to determine in each case whether the woman consented;  of course, it is for the prosecution to negative consent beyond reasonable doubt.  In R v I A Shaw [1996] 1 Qd R 641 at 646, Davies and McPherson JJA held it was "a perfectly proper question" for the complainant to be asked to "affirm on oath that she did not consent to having sexual intercourse with the accused on the occasion in question".

10. It is now appropriate to look at cases dealing with reasonably similar factual situations to that with which the Court is concerned here. Probably the earliest case is R v Jackson [1822] Russ & Ry 487;  168 ER 911.  The charge there was burglary with intent to commit rape upon a married woman.  The evidence established that Jackson entered the house, got into the woman's bed as if he had been her husband and commenced having intercourse with her.  When she discovered what was happening "before completion, he desisted";  I infer, given the state of the law at that time, that the words "before completion" meant before emission.  The reasoning of the 12 judges is not reported, but by a majority of 8 to 4 it was held not to amount to rape.  One gains the impression from reading the brief report that it was significant that the man desisted - used no force or violence - once the woman became aware of what was happening.

11. The next case in point of time was R v Saunders [1838] 8 Car & P 266;  173 ER 488.  In that case the complainant and her husband were lodging in the house of the prisoner.  The complainant and her husband went to bed and she fell asleep.  Afterwards she was woken by feeling a hand around her and, believing it to be her husband, made no resistance to the sexual intercourse which immediately followed.  In the course of that act she became aware the male was not her husband and pushed him off.  The prisoner jumped out of bed and left the room.  Gurney B instructed the jury that the evidence did not establish the crime of rape "as she consented, believing it to be her husband".  But significantly he went on to say that if there was "a fraud upon her, and that there was no consent as to this person, you must find the prisoner guilty of an assault".  Such a verdict was returned.  The report records the learned trial judge saying to the jury:  "If you think that the prosecutrix was imposed upon, and that under that imposition she consented, you must find the prisoner guilty of an assault; and, although in point of law this is not a rape, I consider it one of the most abominable offences that can be committed".  To similar effect was the ruling of Alderson B in R v Williams [1838] 8 Car & P 286;  173 ER 497.  There the evidence of the prosecutrix established that the prisoner had got into bed while she was asleep, that she had allowed him to have connection with her believing him to be her husband, that she did not discover who he was till the connection was over, that she then gave an alarm, and the prisoner was secured.  The ruling was that on that evidence rape was not established (evidence of actual penetration was insufficient), but it was open to the jury to find assault.  Alderson B said in that regard:  "In an assault of this nature there need not be resistance - the fraud is enough".   One gains the impression from reading the brief reports of Saunders and Williams that the rulings were to a significant extent affected by the consideration that rape required the act to be "by force and against her will".  The court also found there was no rape in R v Barrow (1868) LR 1 CCR 156.  There the complainant said that at about 2 a.m. she was in bed with her husband "between waking and sleeping" when she became aware of a male having intercourse with her.  Part of her dress was over her face and for about 5 seconds she thought it was her husband until she cleared her face.  Following Jackson, Saunders and Williams Bovill CJ on behalf of the court held there was no rape because the woman was not asleep or unconscious when first penetrated;  it was a case of consent obtained by fraud which was not rape.

12. I find the cases of Saunders and Williams difficult to reconcile with modern jurisprudence, certainly with the law as stated in the Code.  For there to be an assault there must be touching without consent.  In Saunders and Williams the only relevant touching was essentially the penetration involved in the act of sexual intercourse.  If the woman did not consent so that the offender was guilty of an assault, given (at least on the Code definition of rape - intercourse without consent) the offender must have been guilty also of rape if penetration was established.

13. It does appear that by the 1870's there was some change in thinking in England on the topic. In R v Mayers [1872] 12 Cox C.C. 311, the prosecutrix and her brother‑in-law, the prisoner, resided in the same house.  After the husband of the prosecutrix had gone to work, she remained asleep in her bed.  Her evidence went on:  "The first thing after that which I remember was finding the prisoner in bed with me, he was agate of me when I awoke . . . I cannot say that he did it altogether;  his person was to mine".  Counsel for the prisoner contended there was no evidence of force or intent to use force or that the prosecutrix resisted the prisoner and therefore he contended that it was not rape.  Lush J responded:  "But if she was asleep, she is incapable of consent, and therefore it would be a rape".  The jury was directed that there was no evidence of actual penetration therefore rape was not established, but the alternative count of attempted rape was left to the jury.  Relevantly, Lush J said in the course of his charge to the jury:  ". . . I shall lay down the law to you, that if a man gets into bed with a woman while she is asleep, and he knows she is asleep, and he has connection with her, or attempted to do so while in that state, he is guilty of rape in the one case and the attempt in the other.  Therefore, what you must consider is this - did the prisoner come into the prosecutrix's room with the intention of having connection with her while she was asleep?".  A guilty verdict was returned. 

14. The issue was then considered by the Court of Criminal Appeal in R v Young [1878] 14 Cox C.C. 114.  The evidence in that case established that the prosecutrix, a married woman, went to bed "being partially under the influence of drink".  About 4 a.m., when she was asleep, the prisoner entered the room, got into the bed and "proceeded to have connection with the prosecutrix, she being at the time asleep".  When the prosecutrix awoke she thought it was her husband, but on realising it was not she "immediately flung the prisoner off her".  She had not met the prisoner previously.  On the basis that the prosecutrix was asleep at the time of penetration the Court considered that the conviction was correct.

15. Whilst in both Mayers and Young the woman initially believed the male was her husband, in neither case did the offender specifically impersonate the husband;  the offender did nothing other than penetrate the woman in the matrimonial bed which could have constituted impersonating the husband.  Because the woman was asleep at the material time, and not capable of making a rational evaluation of the situation, it was not really in either case a question of impersonation.  I regard each of these cases as being decided on the simple issue that the woman did not consent to the intercourse.

16. That brings me to Papadimitropoulos.  The complainant in that case was a young Greek girl who at the time had not learned to speak English.  She met P, also a Greek but one who spoke English, and some four or five days later he asked her to marry him.  A ring was purchased and the parties went to the office of the Registrar of Marriages where some forms were filled out.  Immediately thereafter P told the complainant that they were married.  Thereafter they lived together for about four days during which time sexual intercourse took place on about three occasions.  The complainant then discovered that there had not been a marriage ceremony.  P was charged with rape and convicted by the jury.  The prosecution case was that there was no consent because the complainant only acquiesced in having intercourse because of her belief that they were married, a belief brought about by P's misrepresentations.

17. The High Court considered the modern history of the crime of rape, and referred to the recent emphasis on "no consent" rather than the use of force or violence. In that context the Court cited with approval the statement of Cussen J in R v Lambert (1919) VLR 205 at 212:

"Now, carnal knowledge is merely the physical fact of penetration, though, of course, there cannot be consent even to that without some perception of what is about to take place".

The Court then reviewed a number of English cases in the 19^th Century, many of which I have referred to above.  The judgment quoted with approval the following passage from the reasoning of Wills J in Clarence (22 QBD at 34):

"The essence of rape is, to my mind, the penetration of the woman's person without her consent.  In other words it is, roughly speaking, where the woman does not intend that the sexual act shall be done upon her either at all, or, what is pretty much the same thing, by the particular individual doing it, and an assault which includes penetration does not seem to me under such circumstances to be anything but rape". (my emphasis)

The Court also approved the following statement from the reasoning of Stephen J in Clarence (22 QBD at 44):

"I think they justify the observation that the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act". (my emphasis)

The Court also referred to the reasoning of Field J in that case at 60-61;  underlying those passages is the observation by Field J at 58 that "it is now necessary to consider what were the actual circumstances attending this act of intercourse, and what was the nature and condition of the intercourse to which the consent was given".

18. That all leads to the following critical passages from the judgment of the High Court at 260-1:

"It must be noted that in considering whether an apparent consent is unreal it is the mistake or misapprehension that makes it so.  It is not the fraud producing the mistake which is material so much as the mistake itself.  . . . it is easy to understand why the stress has been on the fraud.  But that stress tends to distract the attention from the essential enquiry, namely, whether the consent is no consent because it is not directed to the nature and character of the act.  The identity of the man and the character of the physical act that is done or proposed seem now clearly to be regarded as forming part of the nature and character of the act to which the woman's consent is directed.  That accords with the principles governing mistake vitiating apparent manifestations of will in other chapters of the law . . . To return to the central point;  rape is carnal knowledge of a woman without her consent:  carnal knowledge is a physical fact of penetration;  it is the consent to that which is in question;  such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing.  Once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape".  (my emphasis)

Applying those considerations to the facts of Papadimitropoulos the conviction was quashed.  For present purposes the most significant consequence of Papadimitropoulos is the approval given by the High Court to the decision in Young, to the quoted reasoning of Wills J, Stephen J and Field J in Clarence, and to the formulation of the appropriate test in the passage just quoted.  As already noted Sir Samuel Griffith would undoubtedly have been aware of the reasoning in Clarence when he drafted the Code, and the reference in s 347 to "false . . . representations as to the nature of the act" can therefore be taken to include issues as to the identity of the male party.   But it is not necessary to rely on those words in s 347 to sustain this conviction.

19. I have already referred to the decision of this Court in I A Shaw.  That was a case where at trial the appellant admitted the sexual intercourse and other sexual activity, but swore on oath that all he did was consensual.  The complainant had given evidence that she did not consent to each of the acts in question.  She also gave evidence that the appellant held a knife to the base of her neck and that any apparent consent was only because of the effect of threats or intimidation used by the appellant.  He had taken the complainant to a lonely area of bushland from which she had no ready means of escape.  Fitzgerald P referred to the fact that s 347 of the Code had simplified the law in Queensland relating to rape.  Relevantly he said:

"I can identify no reason why, if the circumstances indicate sexual intercourse consequent on 'threats or intimidation of any kind', the jury should ordinarily be directed to decide first whether the complainant consented and then, if she did, whether her consent was obtained by threats or intimidation;  it is sufficient for the jury to decide that, if she did consent, that was how her consent was obtained".

In their joint judgment Davies and McPherson JJA said that it was "only in exceptional cases" that s 347 required any distinction between the two "limbs" thereof.  It is clear from their reasoning at 645 that the essential question is whether or not the sexual intercourse was without consent.  They went on to say at 646:

"Under s 347 consent refers to a subjective state of mind on the part of the complainant at the time when penetration takes place. It is not in law necessary that the complainant should manifest her dissent, or strictly even that she should say in evidence at the trial that she did not consent to sexual intercourse.  Whether or not oral evidence to that effect is needed to prove a charge of rape depends very much on the circumstances . . . a complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it.  Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent . . .".

20. Finally, brief mention should be made of the decision of this Court in R v P S Shaw [1995] 2 Qd R 97.  Relevantly for present purposes Fitzgerald P at 111 when speaking of "consent to intercourse" referred to "a free and informed exercise of will" by the woman.  Both Pincus JA and McPherson JA agreed with that reasoning.  McPherson JA also observed at 115 that on the issue of consent "the whole history of the relationship is necessarily involved";  he took those words from the judgment of Griffith CJ in McConville v Bayley (1914) 17 CLR 509 at 512.  That was an adultery case but, as McPherson JA said, the remarks are apposite when considering the issue of consent in a rape case.  To my mind that observation is particularly pertinent here where the appellant was an intruder into the home and was a person not previously known to the complainant.

21. The evidence here clearly establishes that the complainant did not consent to the appellant having sexual intercourse with her at the time and place in question. The fact that she did not resist, or voice want of consent, because she believed the male penetrating her to be her "sexual partner" is beside the point. Given s 347 of the Code as it stood at the material time, consent involved not only an appreciation that sexual intercourse was about to take place, but also an awareness of the identity of the male about to effect that penetration. Here the complainant had no reason to believe that any male person other than her "sexual partner" was in the house at the material time. The appellant had unlawfully entered the complainant's dwelling house, and clearly intended having sexual intercourse with the woman he located there whether she consented or not. Her instinctive responses did not constitute a comprehending consent; her reasoning processes were still affected by sleep and the consumption of alcohol. Once she comprehended what was happening - a complete stranger was having intercourse with her - she made it clear that she was not a consenting party. This was a clear case of intercourse without consent, all that is required by the Code to establish the crime of rape.

22. It should also be noted that no issue was raised at the trial, or on appeal, that s 24 of the Code was relevant.  Given all the circumstances, it is clear the appellant could not have contended that he had an honest and reasonable but mistaken belief that the complainant was consenting.

23. The appeal should be dismissed.

24. BYRNE J: 

Taskforce Recommendation

In May last year, the Report of the Taskforce^[1] on Women and the Criminal Code^[2]was tabled in Parliament. One of the many recommendations^[3] was to alter the law concerning consent in s 347. The Report said:^[4]

“In Queensland consent is not defined, and the circumstances which vitiate consent are limited to force, threats or intimidation, exercise of authority, fear of bodily harm, false and fraudulent representations as to the nature of the act, and personation of a woman’s husband ...  there is a benefit in adding ... to the existing matters which vitiate consent ... a mistaken belief that the accused was the complainant’s sexual partner.”

25. Inspired by the proposal, the Criminal Law Amendment Act 2000^[5] stipulated that “consent ... is not freely and voluntarily given if it is obtained ... by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner”. But if the appellant’s conviction is to be sustained on the footing that a woman does not “consent” if mistaken about the identity of the man whose penis she has knowingly permitted to penetrate her genitalia, both the Taskforce’s recommendation and the consequential legislative amendment were unnecessary.

Section 347 in 1996

26. When the appellant entered the complainant’s house in August 1996, the Code provided:

347.(1)Any person who has carnal knowledge of a female without her consent or with her consent if it is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape.

(2)In this section –

‘married woman’ includes a woman living with a man as his wife though not lawfully married to him and ‘husband’ has a corresponding meaning.”^[6]

Common Law and s 347

27. At common law, as Papadimitropoulos v The Queen^[7] reveals, “the essential inquiry” concerning the issue of consent in a rape trial is “whether the consent is no consent because it is not directed to the nature and character of the act” of sexual intercourse; and that “the identity of the man and the character of the physical act that is done ... [form] ... part of the nature and character of the act to which the woman’s consent is directed”. But if “consent” in s 347 imports the common law, the references to “by means of false ... representations as to the nature of the act, or ... by personating ...” are otiose. And words in statutes are rarely of no effect^[8] - a general proposition that is especially true of Sir Samuel Griffith’s remarkable Code.

Ordinary and natural meaning of the words of s 347

28. Both the structure and content of s 347 indicate that “consent” here connotes assent or permission, without the additional incidents that inform the common law concept. In other words, applying the conventional principles of interpretation of a codifying statute,^[9] rape involves “carnal knowledge” without permission, or if intercourse is permitted, where permission to penetrate is “obtained” in any of the circumstances s 347 proceeds to prescribe.

29. The Taskforce was therefore right to characterize force, husband impersonation, and the other conditions s 347 nominates as the “limited” “circumstances which vitiate consent”, and correct in thinking that legislative change was necessary to criminalize as rape^[10] misconduct such as the appellant’s.

30. Although there is no ambiguity to justify resort to antecedent common law, earlier statutes, or work of law reformers, as it happens, historical considerations do not require a different interpretation.

Precursors

31. Sir Samuel Griffith had “frequent recourse”^[11] to the New York Penal Code of 1865 in composing his codification. The New York Code defined rape as:

“An act of sexual intercourse accomplished with a female” under nominated conditions, including “where she submits under a belief that the person committing the act is her husband; and this belief is induced by any ... pretense ...”.^[12]

The accompanying commentary mentioned that several reported cases had involved a “criminal connection ... by means of personating the husband ...” and continued:

“In England this is held not to be rape. (Reg. v. Clarke, Dearsly, 397; 6 Cox. Cr. Cas., 412; 18 Jur., 1059; 29 Eng. L. & Eq., 542; Rex v. Jackson, Russ & Ry., 487; Reg. v. Williams, 8 Carr & P., 286; Reg. v. Saunders, id., 265. In Scotland it has been held to be rape. Fraser’s case, Arkley, 329; Reg. v. Sweenie, 8 Cox Cr. Cas., 223. In this country the question has been differently decided in the different states. See Wyatt v. State, 2 Swan, 394; Lewis v. State, 30 Ala., 54; People v. Bartow, 1 Wheel. Cr. Cas., 378; following the English view; and State v. Shepard, 7 Conn., 54; Anon., 1 Wheel. Cr. Cas., 381, note adopting the contrary.

Without reviewing the reasoning of these cases, or questioning the soundness of the English decisions considered as exposition of the existing law, the commissioners think that this offense fully partakes of the guilt of rape, and should share its punishment in all instances in which any means are used by the accused to create a belief that he is the husband.”^[13]

32. Judicial differences persisted concerning the significance of mistake as to the man’s identity in the British Isles^[14] and in the United States.^[15]

33. In 1880, a Bill for a criminal code for England and Ireland was introduced into the United Kingdom Parliament.^[16] This comprehensive initiative had resulted from the labours of a Royal Commission comprising Lord Blackburn, Barry J, Lush J “and that very celebrated criminal lawyer, jurist, and judge, Sir James Fitzjames Stephen”.^[17] The Bill contained this definition of rape:

“Rape is the act of a man, not under the age of fourteen years, having carnal knowledge of a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman’s husband, or by false and fraudulent representations as to the nature and quality of the act. This offence shall be complete upon penetration.”

34. Another 1880 draft put before the Imperial Parliament, Criminal Code (No 2), proposed:

“523.Whoever has carnal knowledge of any woman, not being his wife, either without her conscious consent or with her consent, if such consent be obtained by the use of any force or threat, or by personating or falsely representing himself to be her husband, or by falsely pretending that such carnal knowledge is necessary, or will be beneficial to her, for any surgical or medical purpose, is guilty of an offence ...”.

35. These definitions addressed the practical issues that had emerged over the years.

36. Force was once essential.^[18] Charlatans had inveigled gullible women into sexual intercourse under pretences of medical treatment:^[19] those victims had mistaken the nature^[20] of the act. Use of the superfluous “conscious” to qualify “consent” was no doubt prompted by predation on women asleep.^[21] “Consent” itself was probably chosen because it looked more readily than its synonyms to comprehend “idiots and infants, and persons incapable of giving consent”^[22] and, more importantly, because of ancient usage.^[23]  The inclusion of “fear” and “threats” is accounted for by a jury direction in a case where a girl had submitted to her father under “dread and terror”.^[24] Several cases concerned intercourse under a misapprehension that the man was the husband. But by 1880 there had not, it seems, been any reported^[25] instance of an unmarried woman having been tricked into sex by a mistake about identity.

37. Though neither proposal prospered in the United Kingdom, they were to prove influential in Queensland.

38. In Britain, the controversy concerning a wife’s mistake as to identity was resolved the year after Dee. By s 4 of the Criminal Law Amendment Act, 1885 (UK):

“Whereas doubts have been entertained whether a man who induces a married woman to permit him to have connection with her by personating her husband is or is not guilty of rape, it is hereby enacted and declared that every such offender shall be deemed to be guilty of rape.”

39. Unlike the 1880 attempts at defining rape, this declaration did not prescribe the elements of the offence. The unambitious nature of the intervention – a declaration to resolve one controversial aspect - was to have continuing significance. More than a century later, in R v Elbekkay,^[26] the Court of Appeal,^[27] sustaining a rape conviction where the woman mistook the man for her “boyfriend”, held that the 1885 Act “was limited to husbands because it was ... designed to resolve a particular confusion”.^[28] That limited effect meant that, subject to Parliament’s declaratory prescription,^[29] it fell to the general law to fix the ingredients of the crime. Of its nature, the common law is susceptible of development in response to varying societal needs. Acknowledging as much,^[30] the Court said:^[31]

“To find that it is rape to impersonate a husband, but not if the person impersonated was merely, say, a long-term, live-in partner, or in even more modern idiom, the ‘partner’ of the woman, would be extraordinary. The vital point about rape is that it involves the absence of consent. That absence is equally crucial whether the woman believes that the man she is having sexual intercourse with is her husband or another.”^[32]

40. In Queensland, however, things had taken a different turn.

41. As a step towards a local code, in 1896, under the title A Digest of the Statutory Criminal Law in Force in Queensland on the First Day of January, 1896, Griffith CJ published his compilation of “all the existing Criminal Statute Law which it is within the competence of the Legislature of Queensland to repeal or amend”.^[33] Article 233 stated:

“Any person who commits the crime of rape is guilty of felony, and is liable on conviction to the punishment of death.

A man who induces a married woman to permit him to have carnal knowledge of her by personating her husband commits rape.”

42. On 28 November 1899, the Act to establish Queensland’s Code of Criminal Law received assent.^[34] In s 347, the Parliament defined rape in this way:

“Any person who has carnal knowledge of a woman, not his wife, without her consent, or with her consent, if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape.”

43. Although at home subjected to “trenchant criticism”,^[35] the 1880 Bills had borne fruit in Queensland. Adopting the scheme, and much of the language, of those British initiatives, s 347 provides a comprehensive description of the elements of rape, including an exhaustive statement of the range of circumstances sufficient to establish the crime where a female of full capacity permits “carnal knowledge”. The chosen pressures and inducements - the force, threats and duplicity that matter – mirror those 19^th century British experiences that account for the content of the rape definitions in the 1880 Bills: experiences that did not^[36] extend to complaints by an unmarried woman mistaken as to the man’s identity.

Foreboding

44. In R v Merembu Bongab,^[37] the Supreme Court of Papua and New Guinea was concerned with the question of statutory interpretation^[38] that now arises.

45. In the early hours, the accused entered a room where the complainant and her “de facto husband” were sleeping. The accused effected penetration, the woman believing that he was her “de facto”. Acquitting, Frost SPJ said:^[39]

“... the proper construction of s. 347 is that ... the crime is committed if the Crown proves that the accused had carnal knowledge of the prosecutrix without her consent or with her consent, but only in the circumstances therein set out. Accordingly the facts of the present case fall outside the section. This is the view of Dr. Howard ... : ‘In Queensland and Western Australia the definition of rape expressly limits this kind of fraud ... to the case where the accused deceives a married woman into thinking he is her husband’.”

Alarm

46. Troubled by the consequences of Merembu Bongab, within a few years of the decision, Dr Jocelynne Scutt warned that such an interpretation of s 347:

“... means that unmarried women are not protected to the same degree as married women; that protection does not extend where consent is thought to be given to a party other than a husband ... [and] also would lead to discrimination in terms of those punished. Why should it be that a man who impersonates a married woman’s husband ought to be punished by conviction for rape, when a man who personates a man not being the husband should be punished not at all?”^[40]

Partial change

47. Section 31 of The Criminal Code, Evidence Act and Other Acts Amendment Act 1989 added the concluding paragraph of s 347.^[41] It is germane for two reasons.

48. First, the additional protection is restricted to those women who satisfy the prescribed relationship: “living with a man as his wife ...”. So the change does not apply to the more casual association that existed between the complainant and the man she assumed the appellant to be.

49. Secondly, the addition was pointless if, as at common law, the reality of “consent” in s 347 depends on the accuracy of the woman’s belief concerning the man’s identity, whatever her marital status and whoever she wrongly supposes her penetrator to be.^[42]

50. Plainly, the 1989 amendment presumes that, penetration having ceased on withdrawal of permission, such as this complainant suffered was not rape.^[43]

Orders

51. The appeal should be allowed, the conviction and verdict set aside, and a judgment and verdict of acquittal substituted.

52. DUTNEY J:  The appellant was convicted of rape after a trial in the District Court in Townsville.  The facts were unusual but by no means unique.

53. The appellant unlawfully entered the dwelling house of the complainant in the early hours of 18 August 1996. The complainant was sleeping naked beside a friend, Graham Boyd, who she described as her “only sex partner”.  The friend would visit fortnightly or “sometimes weekly on weekends”.

54. On Saturday 17 August 2000 Mr Boyd and the complainant went to the Townsville Casino and stayed there for approximately five hours. When they left the casino the complainant said she was “tipsy” but not drunk. They picked up the complainant’s eight year old son and took him home. The complainant put her son to bed then made a late dinner for herself and Mr               Boyd.

55. At home the complainant drank some beer. She went to bed with Mr Boyd between 1-1:30am. She got up for a time shortly after retiring before returning to sleep on the side of the bed nearest the door. The complainant described what followed in these terms at pages 46-49 of the transcript:

“Okay.  Well, can you tell us what - what occurred next? You’re asleep in your bed? ---- I was asleep in my bed – and I was lifted out of my bed.

Okay.  You’re just demonstrating with your hands.  You’re moving your hands up.  How were you – how were you lifted out of the bed? Where were the hands placed?---I am pretty sure they were placed like here, like underneath my arms.

Okay, and how were you – when you were, you’ve described lifted, you were lifted – was – were you lifted off the ground, or were you just simply lifted up or-----? ---I was lifted out of my bed.

Okay.  Were you – did you have your eyes open?---No

How – when you were lifted out of bed, were your feet still on the ground?  Were your feet touching the ground?  You know, if someone lifts you under the arms they can lift you right off the ground, or they can simply just lift you up so you’re standing on your feet.  Do you remember which ----?--- I can’t really remember.

Okay.  Well, tell us what you do remember after being lifted out of  bed? –Okay.  I was carried out, like walked out into the hallway part where the closet is.

Okay.  Miss D, did you walk out there by yourself? ---No.

Okay.  Well, can you describe how you walked out there?  As in -----?----- I was being like walked out.

……….. Miss D, when you – when you’ve gone from your bedroom to the hallway, was this person touching you at all? –Yes.

Where was he touching you?---He – he proceeded to –I was – I was up against the hallway wall.

……….

…..And my right leg was – the person put his hand in – like under my right leg and proceeded to lift it up and as he was doing that, I felt him penetrating me with his penis into my vagina.

Miss D, did you have your eyes opened at that time? --- No

……….

Okay.  Sit back down please, Miss D.  You’ve described this person as penetrating your vagina.  What occurred then?---He – I just felt sperm all over my legs – like it – like all over them, running down – running down my inner thighs ----

………..

Did you say anything to this person?---Not at all.

Did this person say anything to you?---Not at all.

Miss D, who – did you know who it was at that stage? --- No.

Did you know – did you think it was someone? ---I thought I was having sex with my partner, Graham.

……….

Miss D, I think before the break you told us about out in the hallway and you’ve described feeling sperm running down your thigh. Can you tell us what occurred then?---He – I was moved – like, being walked over more near to where the dining table and the lounge room carpet is.

When you say you were being walked, can you just -----?-----Like led.

Okay, led.  Did this person ----?---- Physically led.

Did he have hold of you physically?  Did he have his hands on you at all? ---Yes.

Well, can you describe where his hands were?---Okay, his – he lost his footing at one stage.  He – he didn’t fall over, okay.  He had straddled my legs.

…….

Can you tell us what happened then? He’s straddled – you’ve described him as straddling your legs?---He – he proceeded to continue – continued with the penetration of my vagina and there was more of this substance, sperm, and I’ve – I’ve said, “Oh Graham,” and moved my hands up towards the back of his hair and I realised it wasn’t Graham.

What made you realise it wasn’t Graham?--- The hair, the hair.  It was tight, like Afro.  It wasn’t Graham’s hair.

Okay.  What did you do, Miss D? --- I yelled out and I pushed – I yelled out, “Graham, get up.  There’s someone in the house.  Help me,” okay, and ---

56. Later the complainant was asked and responded as follows:

“…did you consent to having sex with George Allan Pryor?---No”

57. At the time these events occurred s 347 of the Criminal Code was in the following terms:

1. Any person who has carnal knowledge of a female without that person’s consent or with her consent if it is obtained by force, or by means of threats or intimidation of any kind,  or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called “rape”.
2. In this section-

“married woman” includes a woman living with a man as his wife  though not lawfully married to him and “husband” has a corresponding meaning.

58. The submission for the appellant is fairly summarised in the following way. Section 347(1) comprises 2 limbs. The first limb refers to carnal knowledge of a person “without that person’s consent” and the second to carnal knowledge “with that person’s consent” but where the consent is vitiated by a               number of specified matters.

59. It was submitted that “consent” in the first limb refers only to agreement, acquiescence or permission to, in or for the act of penetration itself. The penetration here was agreed to or acquiesced in. It was submitted that this case is quite different to a case where a person takes advantage of a sleeping or insensible woman who is incapable of sufficiently comprehending the act to consent. Here the complainant was awake at least sufficiently to give a coherent account of what took place. She did not resist. She believed the other party was her partner until such a time as she felt his hair and recognised it was that of a stranger. It would seem that throughout the event the complainant was in a state of drowsiness and kept her eyes shut.

60. The strength of the submission on behalf of the appellant depends on giving a narrower construction to the word “consent” in the first limb of s 347(1) than would be the case at common law. A narrow construction rendered necessary because, so it was submitted, to fail to do so would render the vitiating factors listed in the second limb otiose.

61. If the submission succeeds then it is said the conviction cannot stand. None of the vitiating factors apply. The consent (if it be so) is not vitiated by any threat or intimidation. The complainant was not misled as to the nature of the act and the appellant did not impersonate the complainant’s husband. The complainant was unmarried and the relationship with Mr Boyd was not such as would bring the complainant within the extended statutory definition of “married female”. He did not live with the complainant on any regular basis.

62. “Consent” is now defined in s 348(1) of the Criminal Code to mean:

“….consent freely and voluntarily given by a person with cognitive capacity to give the consent”

63. Subsection(2) lists a number of vitiating factors but these are stated to be without limitation to the general definition. Among them, is paragraph (f) which provides that “a person’s consent to an act is not freely and voluntarily given if it is obtained by the mistaken belief induced by the accused person that the accused was the person’s sexual partner”.

64. I have no doubt that this case would fall within the present s 348(2)(f) since the complainant’s belief that the appellant was Mr Boyd was induced by the appellant having placed himself in the complainant’s bedroom at night where no person other than Mr Boyd would reasonably be expected by the complainant to be.

65. The present definition of “consent” does not, however, have any relevance to the appellant’s position.

66. At common law it seems to be settled by the decision of the High Court in Papadimitropoulos v R (1957) 98CLR 249 that “consent” requires “a perception as to what is about to take place, as to the identity of the man and the character of what he is doing” (p261).  In relation to a mistake as to the identity of the man Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ in their joint judgment in Papadimitropoulos said at 260:

“it must be noted that in considering whether an apparent consent is unreal it is the mistake or misapprehension that makes it so.  It is not the fraud producing the mistake which is material so much as the mistake itself.  But if the mistake or misapprehension is not produced by the fraud of the man there is logically room for the possibility that he was unaware of the woman’s mistake so that a question of mens rea may arise”.

67. The controversy in Papadimitropoulos arose because of uncertainty in the authorities as to whether mistake or fraud was relevant to consent or whether it required only knowledge of and the acquiescence in the physical act of penetration.  Doubts as to whether a mistake as to the identity of the man even when that mistake was induced by him can vitiate consent arise as far back as R v Jackson (1822) Russ & Ry 487;168 ER 911 where it was held by a               majority of 8 to 4 that it was not rape for a man to unlawfully enter a woman’s bedroom at night and obtain her consent to intercourse by pretending to be her husband.  Similar outcomes were obtained in R v Saunders (1838) 9 Car & P 265; 173 ER 488; R v Barrow (1868) LR 1 CCR 156 and R v Young (1878) 38 LT 540; 14 Cox CC 114.   The decisions were not uniform and in R v Dee (1884) 15 Cox CC 579, an Irish case, and R v Clarence (1888) 22 QBD 23 a quite different view was taken.  In the latter case at p34 Wills J expressed his view as follows:

“The essence of rape is, to my mind, the penetration of the woman’s person without her consent.  In other words it is, roughly speaking, where the woman does not intend that the sexual act shall be done upon her either at all, or, what is pretty much the same thing, by the particular individual doing it…..”.

68. An attempt was made to resolve the inconsistency in the authorities by statute with the enactment in the United Kingdom of s 4 of the Criminal Law Amendment Act 1885 which acknowledged the doubts regarding the vitiating effect of mistake or fraud on consent and declared to be guilty of rape an offender who obtained consent by impersonating a woman’s husband.

69. The clarification is in these terms:

“Whereas doubts have been entertained whether a man who induces a married woman to permit him to have conexion with her by personating her husband is or is not guilty of rape, it is hereby enacted and declared that every such offender shall be deemed to be guilty of  rape”.

70. The enactment of s 347 of the Criminal Code must be looked at in the light of the doubt surrounding the common law meaning of “consent” as it existed at the time of the enactment of the Criminal Code Act 1899.

71. In relation to s 347(1) I am satisfied that the legislative purpose of the second limb of the subsection was not to limit the scope of the first limb but among other things to overcome what in relation to the married woman qualification was then a real question in the common law as to whether or not “consent” encompassed not just penetration but penetration by the man accused. Insofar as it impacts on the first limb, the purpose of the second limb is thus clarification rather than limitation of the general scope of the first limb. The second limb has the dual purpose where consent is in fact given of identifying circumstances in which that consent will be ineffective. It follows that the               limitation in the second limb qualification in relation to a married woman even with the extension by the definition of “married female” in subsection (2) does not limit the operation of the first limb nor create a lacuna of the type of which the appellant seeks to avail himself here.  The second limb is not concerned with whether or not there is consent but with whether that consent is ineffective.  Similar doubt as to the extent of force or intimidation necessary at common law to vitiate consent may well have founded the inclusion of at least some of the other factors listed in the second limb of s 347(1).  It is not necessary to consider that matter in order to determine this appeal.  Some reference to or discussion of the uncertainty can be found in R v PS Shaw [1995] 2 Qd R 97 at 113 and in an article by Dr Scutt in 13 WALR 52 at 58.

72. Having arrived at this point the distinction between the first and second limbs of s 347 can be adequately preserved if it is recognised that a mistake about the identity of the man is not a vitiating factor of consent. Consent only exists in the presence of a perception “as to what is about to take place, as to the identity of the man and the character of what he is doing” (Papadimitropoulos, supra at 261).  Only if consent is established in this sense is it necessary to look at whether that consent is rendered void by one of the factors mentioned in the second limb.

73. In reaching the above conclusion I am conscious that it is contrary to the decision of Frost SPJ in the Papua & New Guinea Supreme Court in R v Merembu Bongab [1971-1972] P & NGLR 433.  With respect to Frost SPJ it is wrong, in my view, to suppose that giving the word “consent” in the first limb of s 347 a meaning consistent with that given to it at common law in Papadimitropoulos (supra) necessarily imports into the first limb of s 347 all of the common law principles relating to circumstances in which consent is vitiated (see p438). It is not necessary for the purposes of this case to decide whether all or any of such principles are in fact imported.  It is sufficient for present purposes that the requirement of knowledge of the identity of the man as explained in Papadimitropoulos is an element of consent not that a mistake as to that matter however caused is a factor which renders consent otherwise given ineffective as is the case in relation to the matters listed in the second limb of s 347(1).

74. It should be noted that no question arose in this case as to whether the appellant was mistaken as to the existence of consent on the part of the complainant. The appellant neither gave nor called evidence.

75. It follows in my view that the appellant has failed to make out the amended  grounds of appeal and the appeal should therefore be dismissed.