[1971-72] PNGLR 433

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

MEREMBU BONGAB

Port Moresby
Frost SPJ

3-4 February 1972
16 February 1972

CRIMINAL LAW - Rape - Consent - Belief that accused de facto husband - Indecent assault as alternative verdict - Break and enter with intent to commit rape - The Criminal Code (Queensland, adopted), ss. 347[cdlxxiii]1, 578 and 418.

The accused had sexual intercourse with the prosecutrix in such circumstances that she was aware that he had made some partial penetration, but that she believed that he was her de facto husband and so consented.

Held:

(1)      The proper construction of s. 347 of The Criminal Code (Queensland, adopted) is that it covers the field in that the crime of rape 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 in that the prosecutrix consented to the accused having sexual intercourse with her in the mistaken belief that he was her de facto husband.

(2)      Upon a charge of rape where there is no dispute that penetration has taken place and the only issue is consent or non-consent, the alternative verdict of guilty of indecent assault is not available.

Reg. v. Touhey (1968), 45 Cr. App. R. 23, and Reg. v. Coureas, [1967] Q.W.N. 5, applied.

Dictum of Lucas J. in Reg. v. Richards, [1965] Qd. R. 354 to the effect that in a rape case the Crown is bound to call medical evidence as to the condition of the prosecutrix’s genital organs not followed.

Additional cases referred to:

Papadimitropoulos v. The Queen (1958), 98 C.L.R. 249; Reg. v. Barrow (1868), L.R. 1 C.C.R. 156; Reg. v. Gallienne (1963), 81 W.N. (Pt. 1) (N.S.W.) 94; Reg. v. Clarence (1888), 22 Q.B.D. 23; Reg. v. Dee (1884), 15 Cox C.C. 579.

The accused was also charged with breaking and entering a dwelling house at night with intent to commit a crime therein.

Held:

That in order to prove that the accused broke and entered with intent to commit rape, the Crown must prove either that the accused was aware that the woman would not consent to his advance or else that he realized that she might not be consenting and determined to have sexual intercourse with her whether she was consenting or not.

R. v. Flannery, [1969] V.R. 31, applied.

Additional case referred to:

Reg. v. Mayers (1872), 12 Cox C.C. 311.

Criminal Trial.

The accused was charged upon indictment upon two counts, that on 23rd October, 1971, he committed rape upon the prosecutrix and that upon the same day he broke and entered her dwelling house in the night-time with intent to commit a crime.

In the early hours of the morning of 23rd October, 1971, the prosecutrix and her de facto husband returned home after drinking with friends and went to bed. The accused who was their domestic servant then entered the house by opening a door and went into the bedroom where the prosecutrix and her de facto husband were sleeping together in a double bed.

The accused then effected partial penetration of the prosecutrix. She was aware of this but believing that the man was her de facto husband she did not push him away until she realized her mistake.

The prosecutrix reported the matter to the police who interviewed the accused. The accused admitted to the police that he entered the house with intent to have sexual intercourse with the prosecutrix and he knew that she would not consent, but that because he had been drinking so much he was unable to effect his purpose.

Counsel:

Waight, for the Crown.
O’Neill, for the accused.
Cur. adv. vult.

16 February 1972

FROST SPJ:  [after stating the above facts in full, his Honour continued]:

At the close of the Crown case Mr. O’Neill submitted that there was no case on the ground that the Crown had not called any medical evidence as to the condition of the prosecutrix’s genital organs. He relied upon the decision of the Full Court of Queensland in Reg. v. Richards[cdlxxiv]2, and in particular the passage of the judgment delivered by Lucas J. at p. 357, in which it is stated that in a rape case the Crown was bound to call such evidence. However, in my opinion, in the circumstances of that case, the statement was obiter dictum, as the Court was concerned only with the admissibility of such evidence, and too wide. In my opinion, if there is such a rule of practice, that evidence would not be helpful in a case such as this in which there is no allegation of violence or ejaculation on the part of the prisoner. Accordingly I rejected the submission.

Counsel for the defence called the accused man, who gave evidence as to his movements on the night in question. He said that he had had much beer to drink. In substance his evidence was to the same effect as his account to Sub-Inspector Tali. He maintained that although he tried to have intercourse with her, he was unable to achieve penetration. He said that the prosecutrix did not wake up, nor did he see her move before he left the room.

In cross-examination he denied that he had entered the house by removing the louvres; he maintained that he had entered the house through the front door. Asked when he went inside the house what he intended to do he said he was going to have intercourse with the prosecutrix, and asked did he think that she would agree to him having sexual intercourse with her, he answered no. I should add that he admitted that on no previous occasion had there been any impropriety whatever between them.

Before I consider the law applicable it is convenient for me to state my findings of fact. Counsel for the Crown submitted that I should be satisfied beyond reasonable doubt first, that the man did achieve a degree of penetration, and secondly, that it occurred when the prosecutrix was asleep, and thus in a condition in which she was unable to consent. Now I am satisfied beyond reasonable doubt to act on the prosecutrix’s evidence that the man did achieve some degree of penetration, but I am not satisfied that she was asleep. I am satisfied that she was aware that the man had made some partial penetration, but that she believed that the man was her de facto husband, and so consented to it.

I now turn to the law applicable. The crime of rape is provided for in s. 347 of The Criminal Code (Queensland, adopted), which is in the following terms:

“Any person who has carnal knowledge of a woman, or girl, 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 impersonating her husband, is guilty of a crime, which is called rape.”

I refer also to s. 6 of The Criminal Code, the effect of which is that it is immaterial if the degree of penetration is slight: if there is penetration that is sufficient to constitute the element of carnal knowledge.

As I am satisfied beyond reasonable doubt that the accused man had carnal knowledge of the prosecutrix, who was admittedly not his wife, the question then is whether I am satisfied on the same onus whether it was without her consent. It is to be noted that the case cannot be brought within the second part of the section because the only relevant provision, which is to the effect that in the case of a married woman, rape is committed if her consent is obtained by the accused impersonating her husband, is because of its terms, not applicable. Those words refer to a married woman’s lawful husband, and counsel for the accused did not argue to the contrary. Whether upon the facts of this case there was an impersonation within the meaning of the section it is unnecessary to consider.

Counsel for the Crown argued that because of the prosecutrix’s mistake as to the identity of the accused it was without her consent within the meaning of the section that he had carnal knowledge of her, and, in effect, submitted that the statutory element of “without her consent” imported the common law. Counsel relied upon the case of Papadimitropoulos v. The Queen[cdlxxv]3. That was an appeal from a decision of the Full Court of the Supreme Court of Victoria in which, by a majority, that Court held that the mistaken belief of the prosecutrix that she had gone through a valid ceremony of marriage with the accused, which was brought about intentionally by the fraud of the prisoner, vitiated the consent which she gave to acts of intercourse with him. The High Court upheld the appeal, stating the common law, which is the law applicable in Victoria, in these terms:

“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 was doing, but once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.”

The Court thus held that the fraudulent misrepresentation by the accused that a visit paid to a registry office by the prosecutrix and him had in fact resulted in a valid marriage was an inducing cause only which did not destroy the reality of the consent which the prosecutrix gave. The appeal was accordingly allowed, and the conviction set aside.

The High Court considered the element of the crime of rape at common law of “a negative absence of consent”: op. cit. at p. 255. During the last century there were on the one hand two lines of cases which led to the consideration by the courts in England whether an actual consent to acts of sexual intercourse could in law be no consent because it was vitiated by the circumstances—“the cases in which the woman is deluded into supposing that she is undergoing medical treatment, and the cases where in the dark she is induced to assume that her husband is the man with whom she is having intercourse”: op. cit. at page 254. It was, on the other hand, accepted that consents induced by fraudulent representation made by the man as to wealth, position or freedom to marry the woman were a sufficient defence to a crime of rape (ibid.).

It is to be noted, as the High Court pointed out, 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 his mens rea may arise.” Op. cit. at p. 260. So far as mistaken identity is concerned, neither counsel was able to cite any case other than those involving a married woman supposing the prisoner to be her husband. In the first two lines of cases I have referred to the decisions were conflicting and there were judicial expressions of opinion that when consent is obtained by fraud the act does not amount to rape. See Reg. v. Barrow[cdlxxvi]4, and Stephen’s Digest of Criminal Law, 3rd ed., p. 185. “At this point a declaration of the law was made by statute. Section 4 of the Criminal Law Amendment Act, 1885 (Imp.) after reciting that doubts had been entertained whether a man who induces a married women to submit to have connexion with her by personating her husband is or is not guilty of rape, enacted and declared that every such offender should be deemed to be guilty of rape. . . .”: op. cit. 257.

In the State of Victoria that section was not introduced into the legislation, but that fact does not seem significant in the High Court’s reasoning. The High Court reviewed the cases, including some Canadian cases, and came to the conclusion that in cases of rape the consent of a woman is vitiated if it goes to the identity of the man or the character of the physical act that is done or proposed. Thus, unless the statement of principle is to be read down to the cases of a man impersonating the husband of the prosecutrix, who is a married woman, then it would appear that at common law an offence would be committed in the circumstances of this case: See the discussion by Dr. Howard in his Australian Criminal Law (1970), 2nd ed., pp. 166-167. This would also seem to be the position in New South Wales, see Reg. v. Gallienne[cdlxxvii]5. In that case the Court of Criminal Appeal considered the New South Wales legislation and upheld a conviction for rape upon a married woman who consented to the accused having intercourse with her, believing the man to be her husband. However, the legislation in New South Wales is very different from the provisions of s. 347 of The Criminal Code and I do not find it of assistance.

The question before the Court is the construction of s. 347. If counsel for the Crown is right in his submission that the woman’s consent is vitiated, under the Code, if given under the mistaken belief that the man having intercourse with her was another known man not her husband, thus importing the common law as laid down broadly in Papadimitropoulos v. The Queen (supra), then it would seem that the whole of the common-law principles relating to the circumstances in which the consent is vitiated is also imported into the section, for example in the case of duress. For the purposes of the argument it is irrelevant that there may be no difference between the Code and the common law on this point. Such a construction would clearly render the rest of s. 347 otiose, which cannot have been the intention of the legislature. Further, it is significant that the words of s. 347 “by means of false and fraudulent representations as to the nature of the act” appear to be derived from the statement by Stephen J. in Reg. v. Clarence[cdlxxviii]6 referring to Reg. v. Barrow (supra), and Reg. v. Dee[cdlxxix]7, both cases of the prisoner impersonating the prosecutrix’s husband, as follows: “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 connexion 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.” (Cited Papadimitropoulos v. The Queen (supra), at p. 258), and it is significant that the Code omits the wide words concerning false representations as to the identity of the person who does the act and includes only the limited class of case of the prisoner impersonating the woman’s husband.

In my judgment the proper construction of s. 347 is that it covers the field in the sense 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 (supra), at p. 166. He states: “In Queensland and Western Australia the definition of rape expressly limits this kind of fraud (he is referring to fraud as to the identity of the prisoner) to the case where the accused deceives a married woman into thinking he is her husband.”

It may be said that the construction of the section which I have upheld is too restricted, due possibly to the more rigid moral attitudes of the late nineteenth century towards sexual relationships when the Code was formulated. However, it has the advantage of certainty in prescribing the precise circumstances in which a man’s conduct is punishable as rape in this type of case.

Accordingly in my judgment the accused is not guilty of the first count.

Counsel for the prosecution submitted that, pursuant to s. 578 of the Code, an alternative verdict that the accused was guilty of unlawfully and indecently assaulting the prosecutrix in that he had touched her leg, and, by inference, other parts of her body, whilst she was asleep and thus incapable of giving consent, should be found. Upon this point the decision of the Court of Criminal Appeal in England in R. v. Touhey[cdlxxx]8 is relevant. The headnote reads as follows: “On a charge of rape, where there is no dispute that penetration has taken place and the only issue is consent or non-consent, the alternative verdict of guilty of indecent assault should not be left to the jury. Such a verdict may appropriately be considered by the jury in a case where the question of penetration is in issue and may be returned when the jury are not satisfied that penetration has taken place. In a case where there is no dispute that penetration has taken place, if the prosecution desire to ask for a verdict of guilty of indecent assault based on the conduct of the prisoner preliminary to penetration, a separate count for indecent assault should be preferred.” See also Reg. v. Coureas[cdlxxxi]9. The English practice is no doubt laid down to prevent a compromise verdict being given by the jury in cases where penetration is in issue, but, in my opinion, this Court should follow it, although there is no jury. Accordingly I do not find any alternative verdict.

Upon the second count, the question is whether at the time he broke in and entered the house, his intention was to commit rape. That intention has been defined in a decision of the Full Court of the Supreme Court of Victoria as follows: “It is established by authority binding in this Court that one of the elements to be established on a charge of rape is an intention on the part of the accused to have carnal knowledge without the consent of the woman concerned, and that this involves proof by the Crown either that the accused was aware that the woman was not consenting, or else realized that she might not be and determined to have intercourse with her whether she was consenting or not”, R. v. Flannery[cdlxxxii]10, and I am content to adopt this statement of the law. On his own evidence he intended to have intercourse with the prosecutrix and he knew that she would not consent. Probably the way in which he hoped to achieve it was that, knowing that the prosecutrix had just retired to bed and possibly that she was, as she said, a heavy sleeper, the act could be done without waking her, which of course would constitute the crime of rape. See Reg. v. Mayers[cdlxxxiii]11, in which it was held that it is rape for a man to have carnal knowledge of a woman whom he knows to be asleep. However, whether this was his explanation or not, I am satisfied beyond reasonable doubt that being aware that she would not consent he was determined to have intercourse with her whether she consented or not, and that accordingly the element of the requisite intention to have carnal knowledge of her without her consent, is proved. On this second count, therefore, I find the accused guilty of the crime alleged in the second count.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[cdlxxiii]Infra p. 435.
[cdlxxiv][1965] Qd.R. 345.
[cdlxxv](1956) 98 CLR. 249.
[cdlxxvi](1868) L.R. 1 CRR. 156, per Bovill C.J.
[cdlxxvii](1963) 81 WN. (Pt. 1) (N.S.W.) 94.
[cdlxxviii](1888) 22 QBD. 23.
[cdlxxix](1884) 15 Cox C.C. 579.
[cdlxxx](1960) 45 Cr. App. R. 23.
[cdlxxxi][1967] QWN. 5.
[cdlxxxii][1969] VR. 31, at p. 33.
[cdlxxxiii](1872) 12 Cox C.C. 311.