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R v Mobilio [1991] VicRp 28; [1991] 1 VR 339 (1 June 1990)

R v MOBILIO

SUPREME COURT OF VICTORIA APPEAL DIVISION COURT OF CRIMINAL APPEAL

CROCKETT (1) and MCGARVIE (1) and BEACH JJ (1)

9,13 March, 01 June 1990

The Full Court (Crockett, McGarvie and Beach JJ.) delivered the following judgment: On 1 February 1990 the applicant was presented before the County Court at Melbourne on a presentment containing eight counts of rape to each of which he pleaded not guilty. The counts of rape related to acts performed by the applicant during the course of his employment as a radiographer. The case for the Crown was that on eight separate occasions the applicant had introduced an ultrasound transducer or probe manipulated by him into the vagina of a young woman without her consent thereby committing an act of rape as defined in s 2A of the Crimes Act 1958.

Following a trial of 13 days' duration the applicant was acquitted on counts 1, 3, 4, 5 and 6, but was convicted on counts 2, 7 and 8.

By notice of appeal dated 20 February 1990 the applicant seeks leave to appeal against those convictions. The primary ground upon which the applicant seeks leave to appeal is that the learned trial judge erred in law in refusing to direct a verdict of not guilty at the close of the Crown case.

The background to the application may be summarised as follows: The applicant who is aged 29, is a qualified radiographer by occupation. For the last eight years he has been employed in that capacity at the Western Hospital in Footscray. In addition to that he has undertaken part-time radiographic work at various private clinics including the Heritage Clinic at 176 Lonsdale Street, Dandenong.

The Heritage Clinic is conducted by two radiologists, Dr Mark Scott and Dr Alan Harris. In early 1988 they commenced to provide an ultrasound service at the clinic. The applicant was employed by them to undertake the necessary ultrasound examinations.

Ultrasound technology is a comparatively recent development and is designed to provide diagnostic information on a patient's condition so as to enable the treating doctor to make more informed decisions as to the most appropriate management of the patient's health care.

In conducting an ultrasound examination the radiographer uses a transducer or probe which is placed on the area of the patient's body being examined and which causes images of the tissues and structures to be recorded on film and on a screen. In this way abnormal tissues and structures can be identified. Until comparatively recently ultrasound examinations were performed externally with the transducer placed externally on the relevant area of the patient's abdomen. However in about the year 1986, specialists in the field began to conduct transvaginal ultrasound examinations necessitating the insertion of the transducer into the patient's vagina. According to the applicant's evidence at the trial, he had been involved in transvaginal ultrasound examinations at the Western Hospital before he commenced work at the Heritage Clinic.

It is necessary now to say something of the facts disclosed by the evidence called for the prosecution in relation to each of the counts in respect of which the applicant was convicted.

Count 2 relates to an ultrasound examination carried out by the applicant on Miss B. In April 1989, Miss B attended her doctor, Dr Houghton, complaining of vaginal bleeding. Dr Houghton referred her to the Heritage Clinic for an ultrasound examination. On 7 April 1989, Miss B attended at the clinic where she was referred to the applicant. Once in the examination room he told her to take off all her clothes below the waist. She asked why that was necessary whereupon he told her just to "drop them to your knees". The applicant then conducted an external ultrasound examination on Miss B's lower stomach. During that examination the applicant pulled her underpants down to the area of her mid-thigh and at times rested his arm on her thigh area. He also asked her when she had last had sexual intercourse. He then told her that he needed to do a transvaginal interior ultrasound examination to get a proper view. Miss B asked if a female radiographer could do it but the applicant told her that there were no female radiographers available. The applicant then pulled Miss B's underpants further down to her knees and inserted the transducer about an inch into her vagina. He then moved it sideways, inserting it and withdrawing it on more than one occasion for about five minutes. Whilst the applicant was moving the transducer sideways he was studying the screen of the ultrasound equipment. At the conclusion of the examination he showed Miss B the ultrasound images which had been recorded on film. Shortly after the examination Miss B made a complaint about it to Dr Houghton. Dr Houghton swore that at no time had she asked for a transvaginal interior ultrasound examination to be carried out. If she had wished such an examination to be carried out she would have written it on the request for the ultrasound.

Count 7 relates to Miss P. In April 1989, Miss P consulted her doctor, Dr Mitchell, complaining of stomach pains. Dr Mitchell referred her to the Heritage Clinic for an ultrasound examination. On 21 April, Miss P attended at the clinic and was referred to the applicant. The applicant took her to an examination room, told her to remove her tracksuit pants and to get up onto the examination table. Miss P did as she was told. The applicant then pulled her underpants to what she described as the mid-pubic line. The applicant then commenced to conduct an external ultrasound examination. After a while he told her that she had not had enough to drink as her bladder was not full. Standard practice required that the patient have a full bladder at the time of examination. The applicant told Miss P to put her tracksuit pants and shoes back on, go to the toilet, and drink some more water. She complied with the applicant's instructions and later returned again to the examination room. Once more he told her to remove her tracksuit pants and get up on the examination table. Miss P did what he told her. The applicant again pulled her underpants down to the mid-pubic region and conducted an external ultrasound examination. He then pulled Miss P's underpants down to her knees and told her to bend her knees. Before Miss P had time to do so, the applicant raised one of her knees. At the same time she lifted up her other knee. The applicant then got a bottle of gel and squirted some of it on to Miss P's vagina. The applicant then inserted the end of the transducer a distance of about one centimetre into Miss P's vagina saying as he did so that he might get a better picture. The applicant then asked Miss P when was the last time she had had sex. The applicant kept the transducer in Miss P's vagina for a couple of minutes and then removed it. During the time the transducer was in Miss P's vagina the applicant was studying the screen on the ultrasound equipment. At the end of the examination the applicant showed her the images which had been recorded on film. According to Miss P, at no time did the applicant tell her what he proposed to do or ask her permission to insert the transducer in her vagina. There was medical evidence at the trial to the effect that to insert the transducer only one centimetre into the vagina was of little or no value as the transducer had to be inserted at least two to three centimetres to obtain a satisfactory picture.

After Miss P left the clinic she returned to her place of employment and complained to a friend about what the applicant had done.

Count 8 on the presentment relates to Miss H. In May 1989, Miss H consulted her doctor, Dr Pye, complaining of abdominal pains. Dr Pye made an appointment for Miss H to have an ultrasound examination carried out at the Heritage Clinic. On 12 May, Miss H attended at the clinic and was referred to the applicant. The applicant showed her into an examination room and told her to take her clothes off. She undressed down to her polo top, bra and underpants. The applicant then told her to take off her polo top which she did. As she was getting up onto the examination table the applicant told her to remove her bra which she also did. The applicant then proceeded to make an external ultrasound examination of Miss H's abdomen. As he did so he moved her underpants further down her abdomen.

Whilst the applicant was conducting the ultrasound examination he asked Miss H a number of questions including whether she had a boyfriend and when she had last had sex.

The applicant then told Miss H that he would have to do an internal examination. The only explanation he gave her for the internal examination was that that way he would be able to see more. The applicant then removed her underpants leaving her completely naked. The applicant parted Miss H's legs and put some gel on her vagina. He then inserted the transducer into her vagina. She said that as he did so he was "sort of feeling the outside of my vagina with his hand". At first the applicant inserted the transducer into Miss H's vagina slowly and then moved it around in a circular motion. However when he re-inserted it on later occasions "it got more vigorous". In all, the internal examination took some 15 to 20 minutes. During the course of the examination, the applicant told Miss H on a number of occasions to watch the ultrasound monitor or screen. The applicant was himself watching the screen during most of the examination. Having completed the examination, the applicant wiped the gel from Miss H's vagina with a tissue. She then put on her underpants, bra and top. He then asked her to come towards him. When she did he placed his hand on her abdomen and palpated it. As he did so he asked Miss H whereabouts her pains were coming from. When the applicant concluded the examination he examined the images the films had recorded and told Miss H that he could not see anything abnormal in the photos. Miss H then dressed and went to walk out the door. However the door was locked. She unlocked the door and left the clinic. She later contacted Dr Pye and told him what had happened.

Each referring doctor was called to give evidence in respect of the counts on which the applicant was convicted. They all gave evidence to the effect that they had not requested or anticipated that a transvaginal ultrasound examination of their patient would be carried out.

The applicant gave unsworn evidence at his trial. The substance of that evidence was that, on each of the relevant occasions upon which he had conducted transvaginal examinations, he had done so because he felt that it was a necessary part of the particular examination, on the basis either of inadequate imaging on the external ultrasound or that it was necessary to see something from a different angle and this was possible by the transvaginal ultrasound. In each case he had told the patient that the transvaginal ultrasound would be needed and had explained what he was doing although he had been reluctant to tell them the pathology because he did not want them to worry too much.

There was a body of expert evidence given at the trial in relation to external and transvaginal ultrasound examinations. There was conflicting evidence before the jury as to whether the transducer used by the applicant was suitable only for external examinations or was also suitable for use in transvaginal examinations. It is unnecessary to set out the substance of the expert evidence in these reasons for judgment.

Having set out the basic facts which the evidence placed before the jury we turn to the law.

The Crimes (Sexual Offences) Act 1980 introduced to the Crimes Act 1958 an amendment which defined rape as including conduct which would not have amounted to rape at common law. S2A of the Crimes Act now contains the following definition: " 'Rape' includes the introduction (to any extent) in circumstances where the introduction of the penis of a person into the vagina of another would be rape, of-- ...

(b) an object (not being part of the body) manipulated by a person (whether male or female) into the vagina or anus of another person (whether male or female) . . ."

In this case proof of a crime of rape required it to be established that the applicant introduced the ultrasound transducer into the vagina of the woman in circumstances where the introduction of the penis would have amounted to rape.

It was undisputed that the applicant by manipulating the transducer introduced it into the vagina of each woman. The case put against the applicant was that he had intentionally introduced the transducer into the woman's vagina knowing that he did so without her consent. Each of the women had given her apparent consent expressly or by her conduct. The issue was whether the woman's apparent consent was, to the knowledge of the applicant, not a real consent.

It was contended for the prosecution at the trial and before this court that the apparent consents were vitiated and not real consents because each woman consented to the introduction of the transducer only for medical diagnostic purposes but the applicant introduced it solely for the purpose of his own sexual gratification.

We first consider what deprives a woman's consent of reality when it is a penis which is introduced to her vagina.

The common law as to rape is relatively simple and practical. It is designed to deter only one form of conduct. It is designed to deter a man from having any sexual intercourse with a woman--any introduction of his penis into her vagina--without her consent. For this act to amount to rape the man must intend to have intercourse without her consent. He has this intention if he intends to have intercourse and is aware that the woman is not consenting or realises that she might not be. If, with that state of mind, a man has any intercourse with a woman who is not consenting, the crime is committed. It makes no difference whether his ultimate or ulterior purpose, motive or reason for intercourse is his own sexual gratification, his self-aggrandisement, the hurting or humiliation of the woman, her psychological or bodily betterment, or some combination of those.

Because the common law of rape prohibits only acts of sexual intercourse without consent, it is the absence of consent to an act of intercourse which the prosecution must prove. If the woman consented to an act of intercourse there is no rape. The man's act does not amount to rape if the woman consented to an act of intercourse even though she believed that he had one ultimate or ulterior purpose, motive or reason for intercourse but in fact he had another.

Difficulties have arisen where the woman consented to what was in fact sexual intercourse but later discovered that her consent was given due to her having made a mistake. In some cases she was mistaken because she did not know at the time that the act was one of sexual intercourse but thought it to be another act altogether. In other cases, while she knew the act was one of sexual intercourse, she believed the man had a purpose which would have rendered the intercourse moral, ethical and socially acceptable but later discovered he had a different purpose which rendered it immoral, unethical or socially unacceptable.

In our opinion it is established in Australia by the High Court that if the woman consented to the act knowing it to be an act of sexual intercourse, no mistake as to the man's purpose deprives her consent of reality. The consent is real even though the act of intercourse, having been done for the purpose the man actually had, may wear a different moral complexion from that it would have worn if done for the purpose the woman believed he had.

In the situations mentioned above, the woman's consent is deprived of reality only if she was mistaken so that she did not know that the proposed act to which she consented was an act of sexual intercourse, but believed that she was consenting to an act of an essentially different nature and character. For the man to be guilty of rape he must have known that the woman was only consenting to an act essentially different in nature and character from sexual intercourse, or have realised that she might only be consenting to an essentially different act.

Whether a woman's apparent consent lacked reality so that the penetration of her vagina was done without her consent and amounted to rape was considered by the High Court in Papadimitropoulos v R [1957] HCA 74; (1957) 98 CLR 249. In that case a woman consented to sexual intercourse with a man because she mistakenly believed his untrue statement that they had been married on a visit they made to a registrar of marriages.

The man was convicted of rape and an application to this court for leave to appeal against conviction was dismissed by a majority. In this court the judges of the majority (Lowe and O'Bryan JJ.) and the dissenting judge (Monahan J.) all accepted that the consent would lack reality if the woman gave it under a mistake as to the thing itself--the act of intercourse--but not if she had only been induced to consent to the act of intercourse by a mistake as to an antecedent matter--the existence of a valid marriage. The judges of the majority said of the woman's mistake, at pp. 2545: "'A mistake of such a kind in our opinion makes the act which took place essentially different from that to which she supposed she was consenting. What she was consenting to was a marital act, an act to which in her mistaken belief she was in duty bound to submit. What she got was an act of fornication--an act wholly different in moral character. On principle it seems to us that the consent relied on is no real consent at all and should afford no help to the applicant.' "

The High Court held that the woman's consent to sexual intercourse was a real consent and the man was not guilty of rape. Her consent was a real consent because her mistake was not a mistake as to the nature and character of the act of intercourse but a mistake as to the existence of a valid marriage which had induced her to consent. The court identified: " . . . the essential inquiry, namely, whether the consent is no consent because it is not directed to the nature and character of the act."

The court continued, at pp. 260-1, that:

"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.

"In the present case the decision of the majority of the Full Court extends this conception beyond the identity of the physical act and the immediate conditions affecting its nature to an antecedent inducing cause - the existence of a valid marriage."

After reference to some historical aspects it was said, at pp. 260-1:

"Rape, as a capital felony, was defined with exactness, and although there has been some extension over the centuries in the ambit of the crime, it is quite wrong to bring within its operation forms of evil conduct because they wear some analogy to aspects of the crime and deserve punishment. The judgment of the majority of the Full Court of the Supreme Court goes upon the moral differences between marital intercourse and sexual relations without marriage. The difference is indeed so radical that it is apt to draw the mind away from the real question which is carnal knowledge without consent. It may well be true that the woman in the present case never intended to consent to the latter relationship. But . . . the key to such a case as the present lies in remembering that it is the penetration of the woman's body without her consent to such penetration that makes the felony. The capital felony was not directed to fraudulent conduct inducing her consent. Frauds of that kind must be punished under other heads of the criminal law or not at all: they are not rape. To say that in the present case the facts which the jury must be taken to have found amount to wicked and heartless conduct on the part of the applicant is not enough to establish that he committed rape. To say that in having intercourse with him she supposed that she was concerned in a perfectly moral act is not to say that the intercourse was without her consent. To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the 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. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape."

The basic issue in this case is whether on the evidence it was open in law to the jury to be satisfied that while each woman had given apparent consent it was not real consent. If that was open to them, it was open to them to be satisfied that the applicant was aware that the women had not given real consent. We consider that on the evidence it was open to the jury to be satisfied that the women consented to the transducer being inserted solely for a diagnostic purpose but that the applicant inserted it solely for his own sexual gratification. The parties are in contest as to whether on such a finding it was open to the jury to find there was no real consent by the individual woman to the introduction of the transducer into her vagina. This depends on whether it could be found that the woman consented to an act of an essentially different nature and character from the act actually done by the applicant.

The argument of the prosecution receives support from the decision of the Saskatchewan Court of Appeal in R v Harms [1944] 2 DLR 61. A young woman of 20, complaining of pain in the chest and irregular menstrual periods, consulted the appellant who made his living from massage and was known as "Dr Harms". He gave her medicine and had her lie on a bed. He removed her undergarments and inserted two pills in her vagina. He then attempted to excite her so as to have intercourse with her, saying that he was doing so to make the pills operative and produce an effective cure. She objected and pushed him away and eventually he desisted saying she would have to take the consequences. Ultimately, she yielded and he had complete intercourse with her. He was convicted of rape and appealed against the conviction.

In cross-examination at the trial the young woman admitted she knew that intercourse could lead to pregnancy, and that she had discussed with the appellant the possibility of pregnancy and he had recommended the pills. She said that she knew she had sexual intercourse with him but thought that because of the pills it would be all right. In fact she became pregnant.

In that case the prosecution relied on a provision in the Criminal Code which provided that the act of a man having carnal knowledge of a woman who was not his wife, with consent obtained by false and fraudulent representations as to the nature and quality of the act, was rape.

Mackenzie JA. who delivered the judgment of the court said, at p. 65: ". . . the question of the complainant's knowledge of the nature and quality of the prisoner's act is not necessarily to be determined by a mere consideration of her understanding of the intimate incidents preceding it, or by its usually natural consequences but by the purpose which rendered her submissive to it and by the effect she was moved by the prisoner to believe would result therefrom."

Later he said, at pp. 65-6: ". . . in this case while it may be conceded that the complainant knew the meaning of carnal knowledge as a sexual act, yet it is quite clear that she was so well aware of its possible ill-consequences that she was definitely indisposed to run the risk of incurring the same for the sorry satisfaction of indulging in sexual intercourse with a man like the prisoner. It is, moreover, obvious that she did not yield to him under the expectation of receiving any money or other material reward. There still remains open the possible conclusion that she did it because he led her by false and fraudulent misrepresentations to believe that it was part of a treatment which by their sexual co-operation would correct her physical disorder. Hence, in my opinion the jury may well have decided that the nature and the quality of the act so far as she was concerned (that is subjectively) was pathological and not carnal."

After examining English decisions the learned judge concluded, at p. 68:

"In the present case counsel for the prisoner contended that running all through these cases was the doctrine that a man cannot be convicted of rape if it appear that the woman actually knew that the act he sought to accomplish involved sexual intercourse. I find myself unable to agree with him. It seems to me that the principle they are seeking to enunciate is rather that a man shall be deemed guilty of rape if he has succeeded by fraud no less than by force in overcoming her permanent will to virtue." The appeal was dismissed.

In Papadimitropoulos the court, at pp. 258-9, approved of the basic principle on which a comment in an editorial note to the report of Harms was based, saying: "In the language of a note to the Canadian decision of R v Harms [1944] 2 DLR 61, fraud in the inducement does not destroy the reality of the apparent consent; fraud in the factum does. The note distinguishes 'between the type of fraud which induces a consent that would not otherwise have been obtained but which is none the less a valid consent and the type of fraud which prevents any real consent from existing'."

Later the High Court observed, at p. 260: "In R v Harrns . . ., the Court of Appeal in Saskatchewan sustained a conviction for rape based on the 'medical treatment' cases. One may perhaps think that the facts went outside the limits of those cases. For, when all the humbug of treatment had been gone through and 'Dr Harms' proceeded to the sexual act, the woman, who understood what he was doing, resisted, but later was persuaded to submit. The editorial note makes the comments: - n the present case the complainant appreciated the nature of the act but submitted because she thought that it was a necessary part of the medical treatment. Is there not in such circumstances a real consent?' "

Although the High Court indicated its view very gently, no doubt through courtesy towards a decision in another jurisdiction, it is a compelling inference that the court regarded the decision in Hanns as wrong. We agree with the conclusion to that effect in Howard's Criminal Law, 5th ed., (ed. Fisse), p. 181, n. 82.

In Bolduc v R (1967) 63 DLR (2d) 82, decided by the Supreme Court of Canada, the majority referred to Harrns as a case where the girl's consent to the intercourse had been obtained by false and fraudulent misrepresentations as to the nature and quality of the act. However, having referred to the full review by the High Court in Papadimitropoulos of the relevant law and cases, including Harms, the majority quoted the law as stated by the High Court. There was no reference to the High Court's disapproval of Harms nor was any preference expressed as between the two views, it not being necessary.

Another case which on its face supports the argument put by the prosecution is R v Rosinski (1824) 1 Lew. CC 11; 168 ER 941. A girl attended a medical man for treatment, her parents understanding before she went that the treatment would involve her being stripped naked. Her evidence was that the medical man himself took her clothes off and laid her on a table. Then he put his private part into hers. She made such resistance as she could but did not call out. Bayley J. told the jury: "In my opinion, if a medical man falsely pretends that it is necessary for a female to strip herself naked in his presence, for the purpose of applying his medical skill, and the jury think it unnecessary, and done for his own lewd gratification, it is a question well worthy the grave consideration of the Judges, whether it be not a misdemeanor." The jury convicted, apparently of common assault, and the judge postponed sentencing until he had taken the opinion of the judges. The judges were of the opinion that in the circumstances the prisoner was properly convicted of common assault.

The editorial note in the report of Harms, at p. 61, treats Rosinski as a case in a separate category where the act committed is of an equivocal nature depending upon the intent with which it was done so that it can be said that the complainant consented to one act whereas the accused did another and quite different act. While the report of Rosinski's Case referred to in the editorial note suffers from a paucity of information, the case does not seem to have any feature which distinguishes it from many similar medical cases in which the test for reality of consent is whether the woman was mistaken as to the nature and character of the act. That test was not referred to in Rosinski.

There are statements in some of the early cases which would give support to the prosecution's argument here. However, in view of the High Court's examination and interpretation of those cases and statement of the law in Papadimitropoulos we regard it as unnecessary to go to the earlier cases.

A view along similar lines to the view advanced for the prosecution in this case is expressed by G. Roberts, "Dr Bolduc's Speculum and the Victorian Rape Provisions", Criminal Law Journal, vol. 8,1984, p. 296.

What then is involved in knowing the nature and character of an act and in directing consent to an act of a different nature and character from the act done? The Macquarie Dictionary gives as a meaning of "nature" the particular combination of qualities belonging to a person or thing by birth or constitution; native or inherent character. !t gives as a meaning of "character" the aggregate of qualities that distinguishes one person or thing from others.

In a number of cases where a woman has apparently consented to a man inserting his penis into her vagina the test for determining whether her consent was not a real consent because not directed to an act of that nature and character has been considered.

In R v Morgan [1970] VicRp 43; [1970] VR 337 the applicants' convictions for rape were based on evidence that although the 19 year old woman with whom they had had intercourse had apparently consented, to their knowledge she was mentally retarded to a marked degree, lacked capacity to consent and had given no real consent.

The trial judge told the jury that to show there was no consent it had to be shown that because of lack of knowledge and understanding she was not capable of real consent. He gave the direction that to have the knowledge and understanding to give a real consent the woman would need more than an understanding that the act consisted of the insertion of a male penis into her vagina: she must also have a rudimentary understanding of a number of what he called "rudimentary concepts": the concept of virginity and the effect of intercourse upon the hymen; that intercourse may cause pregnancy; that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy; and that to consent or not involves a moral judgment. The applicants were convicted of rape and sought leave to appeal to this court.

In allowing the appeals the court quoted passages from R v Lambert [1919] VicLawRp 32; [1919] VLR 205 and Papadimitropoulos and said, at pp. 341-2:

"It appears to us to follow from these statements of authority that where capacity to consent is in issue in order to establish that a girl does not have that capacity--and there is accordingly no consent--it must be proved that she has not sufficient knowledge or understanding to comprehend (a) that what is proposed to be done is the physical fact of penetration of her body by the male organ or, if that is not proved, (b) that the act of penetration proposed is one of sexual connexion as distinct from an act of a totally different character.

"The Crown may prove both (a) and (b), but if it fails to satisfy the burden as to (a) it may still establish incapacity to consent by proving she had not sufficient knowledge or understanding to comprehend (b).

"Equally so we are of opinion that capacity to consent does not involve, as a matter of law, knowledge or understanding of any of the ingredients referred to as 'rudimentary concepts' by the learned trial judge.

"Accordingly, if the prosecutrix has knowledge or understanding of what the act comprises, i.e. the fact of penetration, and of its character in the sense above mentioned, then she has all that the law requires for capacity to consent. That knowledge or understanding need not, of course, be a complete or sophisticated one. It is enough that she has sufficient 'rudimentary knowledge' of what the act comprises and of its character to enable her to decide whether to give or withhold consent.

"It follows that the charge of the learned judge, as we understand it, in directing the jury that absence of one or more of the 'rudimentary concepts' established incapacity, constituted a misdirection and that as it went to the heart of the crime charged, the verdicts based upon it cannot stand.

"Nothing that we have said is, of course, intended to suggest that considerations of the nature referred to by the learned judge in his charge are outside the purview of the jury, as the tribunal of fact, in arriving at a conclusion as to the state of the girl's knowledge or understanding in the relevant sense at the material time."

Convictions of rape have been upheld in cases where, through deception, the woman did not know that the insertion of the man's penis into her vagina was a sexual act, but believed it to be an act of medical treatment or bodily improvement. Such cases are to be understood on the background of a degree of ignorance and naivety by some women as to sexual matters in earlier days that seems incredible today. If cases such as R v Case (1850) 1 Den. 580; 169 ER 381; R v Flattery (1877) 2 QB 410 and R v Willianw [1923] 1 KB 340 are to be regarded as consistent with the law stated in Papadimitropoulos they must be regarded as decided on the basis mentioned above: Glanville Williams, Textbook of Criminal Law, 2nd ed., pp. 561-2.

There are cases in modern times where a woman, undergoing medical examination and unable to see what was being done, consented to what she believed to be the examiner's finger or a medical instrument being inserted into her vagina but later realised that the examiner had inserted his penis and was having sexual intercourse. Situations of that type are discussed in the Californian cases of Boro v Superior Court (1985) 163 Cal. App 3d. 1224; 210 Cal. Rptr. 122 and People v Ogunmola (1987) 192 Cal. App 3d. 277; 238 Cal. Rptr. 300. Under a provision of the Californian Penal Code defining rape as an act of sexual intercourse with a person at the time unconscious of the nature of the act, and this being known to the accused, the courts have treated the women as unconscious of the nature of the act and the examiners as guilty of rape.

By contrast, in the first of those cases, Boro, a man claiming to be a doctor persuaded a woman that she had a dangerous and perhaps fatal disease and the cheapest treatment was for her to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The man then pretended to be the anonymous donor and the woman consented to, and had, intercourse with him, believing that otherwise she would die. The Court of Appeal held that as the woman had understood the nature of the act the man was not guilty of rape.

In our opinion it is established that for a woman to have the knowledge of a man's proposed act of inserting his penis in her vagina, sufficient to render her consent a real one, she must understand more than that what is proposed is the physical act of penetration by the penis. She must have some further perception of what is about to take place including the immediate conditions affecting the nature of the act and the character of what he proposes to do: R v Lambert [1919] VicLawRp 32; [1919] VLR 205, at p. 212 and Papadimitropoulos, at p. 261. She needs to understand that the act is one of sexual connection as distinct from an act of a totally different character: R v Morgan [1970] VicRp 43; [1970] VR 337, at p. 341.

The decision in Morgan makes it clear that a complete and detailed knowledge of all aspects of the proposed act is unnecessary. Persons know what a proposed act is if they have an understanding which would in ordinary language be described as knowing what it is. Thus a person has sufficient knowledge to give effective consent to a complex surgical operation without a complete knowledge of all that is involved. No doubt the knowledge of the nature and character of an act requires some knowledge of its possible or probable immediate effects or future consequences.

Is a knowledge of the purpose with which a man proposes to perform an act of intercourse part of the woman's knowledge of the nature and character of the proposed act? Our reading of the High Court judgment in Papadimitropoulos leads us to conclude that it is not. The disagreement of the High Court with the decision in Harms indicates that if a woman understands that a proposed act is an act of sexual intercourse she knows its nature and character. This knowledge is not affected by a mistake as to the purpose for which the man proposes to perform that act of known nature and character.

In relation to the crime of rape there is nothing artificial in treating a mistake by the woman as to the purpose for which the man proposes to have intercourse as not detracting from her knowledge of the nature and character of the proposed act. The actual act to which she consents, the act of sexual intercourse, is not different and has no different effect on her body if the man has one ulterior purpose rather than another. It is otherwise in other areas of law where one person having consented to another performing an act for a limited purpose is held not to have consented to the person performing the act for a different purpose. In those cases if the other person performed the act for the different purpose, its effect on the person who gave the limited consent would be harmful, or more harmful, than if it were performed for the limited purpose. Examples of such cases are provided by Barker v R [1983] HCA 18; (1983) 153 CLR 338; 47 ALR 1; 57 ALJR 426 and Pallante v Stadiums Pty Ltd (No. 1) [1976] VicRp 29; [1976] VR 331.

What was said by this court in Morgan in the last paragraph of the passage quoted above, indicates that whether or not a woman was able to appreciate the morality of the act is one of the considerations which could be taken into account in deciding whether she had the intellectual capacity to give a real consent to sexual intercourse. Situations encountered in the cases show that a woman's appreciation of the morality of a proposed act will sometimes turn on her knowledge of the man's purpose in proposing an act of intercourse. Although that statement by the court was not strictly necessary to the decision and was on a subject which does not appear to have been argued, it was made by way of guidance to trial judges and carries its own persuasive weight.

In our opinion the passage quoted from the judgment of this court in organ is to be understood on the background that the law requires that a woman must understand the nature and character of sexual intercourse before she can be capable of consenting to it, but the fact that she does understand that does not necessarily establish her capacity to consent. In addition to her knowledge of the nature and character of the act her capacity to make a decision may be relevant. A jury might think that a woman whose intellect was insufficient to enable her to make a refusal of consent or to know that she had a right to refuse consent, lacked the capacity to consent despite her understanding of the nature and character of sexual intercourse: see R v Lang (1975) 62 Cr App R 50, at p. 52 and Howard's Criminal Law, 5th ed., (ed. Fisse), p. 180; cf. R v Roden (1981) 4 A. Crim. R166. In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct. We think the court is to be understood as meaning that in saying that those things are not outside the purview of the jury.

Where the consent in issue is that of a woman possessing normal intellect the reality of her consent turns only on whether she knew, or was mistaken as to, the nature and character of the act to which she directed her consent. As Howard's Criminal Law 5th ed., (ed. Fisse), p. 181 says of the position: "If V [victim] understands the physical significance of sexual intercourse and freely consents to it, any harm she suffers through deception is outside the relatively simple concept of physical protection embodied in rape" and "If V consents to intercourse because she is told that intercourse is part of a treatment, understanding what is being done to her but being misled as to the reason why it is being done, D [defendant] is not guilty of rape."

For the consent of a woman of normal intellect to an act to be deprived of reality through difference between the nature and character of the act consented to and that actually done, the difference must be essential. In Papadimitropoulos, while the High Court disagreed with the test applied in this court by the majority, there was no disagreement with the approach of both majority and minority that their respective tests were applied so as to determine whether the act which took place was essentially different from that to which the woman thought she was consenting: see 98 CLR, at pp. 2545. This necessary degree of difference is conveyed by the reference in the passage quoted from Morgan, to "an act of a totally different character".

In referring to mistake as to the nature and character of the act the High Court was clearly referring to essential mistake. It said, at pp. 260-1, that the test of inquiring whether the woman's consent was directed to the nature and character of the act accords with the principles governing mistake vitiating apparent manifestations of will in other chapters of the law. The mistake which has that effect in other areas of the law is mistake as to that which is essential: see, for example, Salmond and Williams on Contracts, 2nd ed., (ed. Williams), pp. 219-25. That passage contains valuable discussions and illustrations of the distinction between differences of kind or essence and differences of quality or the inessential.

In applying the law with regard to rape by the penis to the statutory concept of rape by a manipulated object it is important to free the mind of incorrect assumptions which can arise from a feature almost invariably present in cases where the reality of a woman's consent to the introduction of a penis was the issue. In cases of rape by the penis it would be extraordinary for the man's conduct not to be driven, at least to some extent, by his sexual impulse and urge. In the case of vaginal rape by manipulated object, the man or woman might not be driven by any sexual impulse, but insert the object into the vagina of a woman without her consent in order to hurt, injure, degrade or humiliate her.

The statutory crime of vaginal rape by a manipulated object is based on the same policy and legal principles as common law rape. It is designed to deter the introduction by a man or woman of a manipulated object into a woman's vagina without her consent. The consent which must be proved to be absent, in order to establish the crime, is consent to the introduction of the object. If the woman consented to the person introducing the object by the act which he or she did, the crime of rape is not committed whatever was, or was believed by the consenting woman to be, the ulterior purpose of the person for doing that act. On the other hand if the woman consented to the introduction of an object by an act of one nature and character and the person introduced an object by an act of an essentially different nature and character, the woman's consent would lack reality and the object would be introduced without her consent.

In this case each of the women consented to the applicant introducing the transducer into her vagina in the performance of the act of conducting a transvaginal ultrasound examination. That is precisely what the applicant did. For the reasons earlier discussed the woman's consent to the proposed act which she knew to be of the nature and character of the act which was done, was not deprived of reality if she believed the applicant proposed to do the act solely for a medical diagnostic purpose and if he actually did it solely for his own sexual gratification. The applicant did no act which was essentially different from the act which the women knew he proposed to do, and to which they consented.

We have discussed this case on the basis that the jury could have found that the applicant inserted the transducer solely for his own sexual gratification. The position would be the same if the jury found that he inserted the transducer partly for a medical diagnostic purpose and partly for his sexual gratification.

It is established by Papadimitropoulos that where a woman consents to a man introducing his penis into her vagina, but is mistaken as to the man's identity, her consent may lack reality. No issue of mistaken identity arises in the present case. It is unnecessary to consider the effect, in a case of rape by manipulated object, of a mistake by the consenting woman as to the identity of the person who introduces the object into her vagina.

In our opinion as a matter of law it was not on the evidence open to the jury to convict the applicant on any of the counts on which he was convicted.

The first ground on which the applicant seeks leave to appeal, that the learned judge erred in law in refusing to direct a verdict of not guilty at the close of the Crown case, is made out in substance though not in strictness. His Honour was not requested at the close of the Crown case to direct an acquittal. However, as his Honour mentioned in his report to this court, the issue of directing an acquittal was considered during the retirement of the jury. The judge then said that if he had formed the view that it was not open to the jury to convict, it would be his obligation to direct them to acquit: transcript, at p. 1197. He took the view that it was open to the jury to convict. He appears to have taken the view, however, that on the evidence before the jury any conviction would be unsafe and unsatisfactory. He decided that in view of the decision of this court in Attorney-General's Reference (No. 1 of 1983) [1983] 2 VR 410, he was not entitled on that basis to direct the jury to acquit.

The convictions should be quashed and judgment and verdict of acquittal entered.

In view of this conclusion it is unnecessary to deal with the extensively argued ground that there was inconsistency in the verdicts, or with any other ground.

In this case it was open to the jury to conclude that the applicant, acting unethically, induced each of the women to undergo the transvaginal ultrasound examination by falsely representing that it was to be done for, and was appropriate for, medical diagnostic purposes. That would amount to a conclusion that the women's mistaken acceptance of those misrepresentations as true, induced them to give their consents. If he had been charged with the offence of procuring an act of sexual penetration by false representation the applicant might have been open to conviction.

S54 of the Crimes Act 1958 provides: "(1) A person who -

(a) by threats or intimidation procures or attempts to procure any person to take part in an act of sexual penetration outside marriage; or

(b) by any false pretence, false representation or other fraudulent means procures or attempts to procure any person to take part in an act of sexual penetration outside marriage -

is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

"(2) A person shall not be convicted of an offence against this section upon the evidence of one witness only unless the witness is corroborated in a material particular by evidence implicating the accused."

S2A(2)(b) provides:

"(2) For the purposes of this Act, an act of sexual penetration is -

(b) the introduction (to any extent) of an object (not being part of the body) manipulated by a person of either sex into the vagina or anus of another person of either sex, otherwise than as part of some generally accepted medical treatment."

There would be questions of corroboration and much could turn on whether, within the words at the end of s2A(2)(b), what the applicant did was part of some generally accepted medical treatment. These points are not relevant to this case and we express no view on them. It was not argued that those words are applicable to the determination of the application now before the court and we do not think that they are.

Appeal allowed and convictions quashed.

Solicitors for the appellant: Home Wilkinson and Lowry.
Solicitor for the respondent: JM Buckley, solicitor to the Director of Public Prosecutions.

[An application for special leave to appeal to the High Court was dismissed: Ed VR ]


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