Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Whether prosecution proved absence of consent on the part of both complainants - Prostitutes who engaged in sex for reward - Allegations of sexual penetration without consent - Consent allegedly overborne by threats - Allegations of intimidation and deceit - Whether consent freely and voluntarily given - First complainant allegedly forced to discount price for sexual services - Second complainant allegedly forced to provide sexual services without reward - Representations by appellant that he was a police officer - Whether representations accompanied by threats sufficient to vitiate consent - Definition of 'consent' in s 319 Criminal Code

Criminal law - Appeal against conviction - Whether prosecution case changed during course of trial - Whether directions in relation to complaint in error - Whether 'Crofts' direction required - Whether requirement to direct the jury in relation to the issue of corroboration

Criminal law - Appeal against sentence - Prosecution appeal - Effective sentence of 2 years 10 months' imprisonment imposed for convictions on five counts of sexual penetration without consent - Two complainants - Effective sentence of 2 years' imprisonment in relation to first complainant and 2 years' imprisonment partially concurrent in relation to second complainant - Whether total term of 2 years 10 months' imprisonment manifestly inadequate

Crimes Act 1900 (ACT), s 67

Crimes Act 1900 (NSW), s 61HA

Crimes Act 1958 (Vic), s 36, s 37AAA, s 57

Criminal Code (WA), s 319(2)(a), s 324G, s 325, s 347

Evidence Act 1906 (WA), s 36BD, s 50

Prostitution Act 2000 (WA), s 24

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

1 STEYTLER P: On 24 November 2006 the appellant was convicted by a jury on five charges of sexual penetration without consent. He was sentenced to a total term of 2 years and 10 months' imprisonment. He has appealed against his convictions. The State has appealed against the sentences imposed, contending that they were manifestly inadequate, individually and in total. Because Miller JA has comprehensively set out the circumstances giving rise to the appeals, I will mention only those that are critical to my own analysis.

2 The offences involved two prostitutes, 'P' and 'T'. They were drug addicts. Both gave evidence at the trial. The critical aspects of their evidence were as follows.

3 P had worked at a brothel in Perth. In late 2003 or early 2004 the appellant went to the brothel. He had sex with P after paying in advance. Afterwards, he showed her a police badge which he had obtained through the internet. He told her, untruthfully, that he was a police officer. P believed him. She was worried because she had previously been arrested for engaging in prostitution.

4 In February 2004, P was walking in Highgate, hoping to attract custom. She knew that this was illegal. The appellant was driving down the street upon which P was walking. He stopped his car. P got into the car. She asked the appellant whether she knew him from somewhere. He told her that he was the policeman who had previously met her at the brothel. P told the appellant that her price for 'oral and sex' was $150. He repeated that he was a policeman and showed her his badge. He said words to the effect that she should discount the price of her services 'or else'. She was afraid that the appellant might arrest her if she did not comply with his request. She consequently agreed to discount her fee to $100. The appellant paid her that sum and then had sex with her. P said that, if she had not believed that the appellant was a police officer, she would not have provided the services she did provide for a fee of $100. She also said that she would not have allowed the appellant to do other things that he did, including kissing and licking her breasts and kissing and licking her face.

5 The events concerning P gave rise to the first three charges on the indictment.

6 Some two months later, T was working illegally on a street in Northbridge. She was picked up by the appellant. She offered to provide oral and vaginal sex for $100. The appellant told her that he was a police officer and that she should provide those services for no charge. She could not remember the exact words used by him, but the effect of them was that she would be in 'big trouble' if she did not do what he wanted her to do for no charge. She had previously had trouble with police because she was a known drug user. She did not want any further trouble. She consequently did as he asked. She made no protest, but had tears in her eyes. She said that she would not have provided the services for free if she had not believed that the appellant was a police officer who was able to arrest and charge her.

7 These events gave rise to counts 4 and 5 on the indictment.

8 The appellant, while admitting that he performed the sexual acts spoken of by P and T, said that each freely and voluntarily consented to these acts. He said, in respect of P, that he was asked to pay $150 but that P agreed to provide the services sought by him for $100. In respect of T, he said that he was asked to pay $100 but that she agreed to provide her services for $80 and he paid her that sum. He admitted having previously told P that he was a police officer. He denied that he repeated this to P on the night in question but said, in cross-examination (ts 532), that, while he believed that he had not repeated this, he could not 'swear on oath'. He denied that he said or did anything, at the time of his negotiations with P, to suggest that a discount should be given because he was a police officer.

9 The appellant also denied ever having told T that he was a police officer. However, earlier in the trial, when his then counsel cross-examined T, he had put to her (ts 224) that the appellant had said something like, 'Look, I am actually a cop but I'm not working to-day. How about looking after me on price'. T denied that the appellant had said this. She insisted that he had told her that he was a policeman and that he had intimated that he would make trouble for her if she did not do as he asked. When asked, in cross-examination, why his counsel had put this proposition to T if, as the appellant said, he had never told T that he was a police officer, the appellant had some difficulty responding. After having acknowledged that he had heard the questions asked and that he had listened carefully to the evidence (ts 529), he at first said that he had obviously been 'mistaken between what was said the other day and what's being said now' and that he had been mistaken 'the other day' (ts 529). Then he said that he hadn't corrected his counsel because he had 'obviously missed it' (ts 530). Then, he said that he did recall his counsel asking these questions and that he guessed that what had been put by his counsel had been put on his instructions (ts 531). When asked whether he had changed his version in that respect, he said, 'Well, it would seem so' (ts 531).

10 I agree with Miller JA that the appeal against conviction should be dismissed.

11 So far as grounds 2, 3 and 4 of the appeal are concerned, I agree with Miller JA, for the reasons that he has given, that none of these grounds has been made out. There is nothing that I wish to add.

12 Ground 1 of the appeal against conviction, as particularised and argued, asserts that the trial judge erred by failing to restrict the prosecution case to one that the consent of each of P and T to the sexual conduct engaged in by the appellant was obtained as a result of threats by the accused.

13 Section 319(2)(a) of the Criminal Code (WA) (Code) defines 'consent' for the purposes of sexual offences. It reads as follows:

'consent' means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.

The prosecution case in respect of the issue of lack of free and voluntary consent was opened in the following way (ts 169, 170):

We say that in each case the accused's statements to the complainant that he was a police officer, coupled with his prior acts in relation to each complainant and his demand to be provided the service, at least at a discount, took away the free and voluntary nature of whatever consent the complainants gave and ... they would not have agreed to perform those acts upon the accused had it not been for those acts and statements.

Those acts, we say, constituted threats and intimidation so as to make the acts done ... not with the free will of the complainant.

14 The appellant's counsel made his opening address immediately after that made by the prosecutor, as permitted by s 143(3)(a) of the Criminal Procedure Act 2004 (WA). In the course of it he said (ts 174 - 175):

In short, it's the defence case that the accused paid to have sex with the complainants for an agreed amount which he paid to them, and he had sex with them without any threat or coercion or any form of deception on his part which would have induced them to consent to those acts; the sexual acts took place by consent; the girls were paid.

They may or may not have been under the mistaken impression that he as a police officer, but what the defence says is this was never critical to the question of consent in any way or at any time. The girls were paid; it's as simple as that.

15 Evidence was then led. However, on the second day of the trial the jury delivered a note to the trial judge asking him to clarify the notion of consent in the context of the charges. The trial judge did as he had been asked. He read to the jury the provisions of s 319(2)(a). He went on to say (ts 366):

That's what the Criminal Code tell us about consent. Consent must be, as I said, freely and voluntarily given and it's deemed not to be freely and voluntarily given if it's obtained by force, threat, intimidation or of [sic] a fraudulent means. So far as the prosecution case is concerned, the prosecution focuses on, effectively, the last of those phrases, 'Other fraudulent means'.

16 The following exchange then took place between the prosecutor (Ms Forrester) and the trial judge:

FORRESTER, MS: No, your Honour, when I opened, I said, 'Threat or intimidation'.

EATON DCJ: Threat or intimidation, okay. All right, but not fraud?

FORRESTER, MS: Well, I certainly didn't address that particular issue in my opening because - it's perhaps best addressed when we are discussing your Honour's charge, but it's certain

EATON DCJ: I will withdraw what I said about other fraudulent means.

FORRESTER, MS: It certainly is the case that the state case is that it was not a free and voluntary consent and that consent, if it was obtained, was obtained by means of one of the things that you set out in the section.

EATON DCJ: All right. So consent is, as I say, not free and voluntary if it is obtained by force, threat, intimidation, deceit or other fraudulent means. So that's as far as I need to say anything about consent at this stage.

17 The jury retired, at that point, for a mid-morning break. The following exchange took place immediately after this (ts 367):

EATON DCJ: Sorry about this, Ms Forrester. I understood you to be effectively saying to the jury that the pretence that he was a police officer was a fraud.

FORRESTER, MS: No, your Honour. It was, we say, a deceit, but we say that it wasn't the pretence that overcame the complainant. It was the fact that he was saying he was. They are slightly different and I did say in my opening that the acts that we allege constituted threats and intimidation so as to make the acts done not with the consent of the complainant. So that's how I particularised and I'm happy to stand by that.

18 At the conclusion of this exchange, the trial judge asked the then counsel for the appellant, Mr Percy QC, whether he wished to comment. This exchange followed (ts 367):

PERCY, MR: I understood that probably both of those might have been open on the depositions, but my friend clearly and fairly nailed the colours to the mast and said it was a threat, and I think that's the way we are going to run the case.

EATON DCJ: Yes, threat or intimidation. Yes, you said in your opening statement amongst other things: His acts, statements and demands took away the voluntary nature of the consent. If that's the position, then that's the way it will be approached and that's how I will charge the jury in due course.

19 As I understand these last two exchanges, what Ms Forrester was saying to the trial judge, and what Mr Percy QC understood her to have said, was that it was not the 'pretence', as such, that brought about the consent. Rather, it was the threat which arose out of 'the fact [the appellant] was saying he was [a police officer]'. She then confirmed what she had said in opening to the effect that the acts alleged by the prosecution 'constituted threats and intimidation'.

20 Counsel for the appellant contends that, when she came to make her closing submissions, the prosecutor told the jury that there had been no free and voluntary consent because the consent had, in each case, been obtained by threats or by deceit or fraud. He submitted that, given the way in which the case had been opened by the prosecutor, the trial judge should not have allowed her to put to the jury that they could find that the consent had been obtained by deceit or fraud.

21 Counsel for the appellant also contends that the trial judge, when summing up for the jury, wrongly reinforced what had been said by the prosecutor. The trial judge told the jury what was meant by fraudulent means. Having done so, he told them that the State contended that the appellant had acted dishonestly and that the complainants had been deceived by him into believing that he was a police officer. He reminded the jury (ts 586) of the evidence given by each of P and T that the services had only been provided because the appellant 'pretended to them that he was a police officer and by reason of what he said to them in that context and that they would not have provided those services to him for no fee or at a discount if they had known that, in truth, he was not a police officer'. Then, he spoke of the prosecution case concerning the threat and intimidation which, the prosecutor had said, arose out of the appellant's implicit threat to arrest each of the women. Finally, when dealing with this issue of consent, he said (ts 592):

Please remember that it's for the State to prove that the consent of the complainants to the acts complained of was not given freely and voluntarily.

It may do so by proving that the consent of the complainant in question was obtained by force, threat, intimidation, deceit or any fraudulent means. If you are satisfied beyond reasonable doubt that the consent of the complainant in question was obtained by any one of these factors, then her consent would not be a consent freely and voluntarily given. Of course there has been no mention of force in this case, and that effectively can be excluded.

22 As I have said, the threats relied upon by the prosecutor in her opening were those which arose, on the prosecution case, either expressly or impliedly as a result of the appellant pretending to be a police officer. Consequently, the threats and intimidation on the one hand, and the deceit or fraudulent means, on the other, were inextricably interrelated. That was how the case was run. Examination and cross-examination of the witnesses (including the appellant) proceeded upon that basis. Moreover, it seems to me that, when read in context, that was how the prosecutor put her closing submissions to the jury. The comment complained of by counsel for the appellant must be read in context. What was said by the prosecutor was as follows (closing submissions ts 2):

You can't go up to an ordinary person on the street and say, 'Hey, I'm a police officer. Give me sex for free'. They would slap him and they would probably report him, but if you go up to a sex worker and you say, 'I'm a police officer' and you say, 'You give me sex for a price less than or for nothing,' does the person then consent in the meaning of the law?

I have told you in the course of my opening and his Honour has read out to you in the course of the trial, and I will read it out to you again because it is such a central issue in this trial, that a consent means a consent freely and voluntarily given and, without in any way affecting the meaning of those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means and a failure to offer physical resistance does not mean that a person is not consenting, so we are right back to the way I opened at the commencement of this trial, that the accused did - and it has been established now on everybody's evidence all of those acts the subject of that indictment occurred, every single one of them.

23 Later in her submissions (closing submissions ts 6), she said:

Then he sees [P] on the street. 'I'm into a bit of bargaining. Let's see if I can use my bargaining tool,' I would suggest, so he goes up to her and she's going '150' and she's a fairly intractable young lady. 'Well, let's see if we can use this little badge. Let's see if I can use the threat. She already knows I'm a police officer. Let's just repeat that and see if I can beat her down a bit' and it worked. It even worked to the extent that he could do things to her that she didn't want him to do, not just she didn't want to have sex with him for that price; he kissed her and touched her and she didn't want him to do it. 'Wow, this is pretty good. That worked.' Straight on to [T]. 'Get the ultimate discount, shall we? Get it totally for free.'

24 Still later (closing submissions ts 8) she said:

You might think that let's just say the version is somewhere in the middle, that the girls having heard that he's a police officer, have gone that extra step. Well, he's a police officer. They sit there and they think, 'Well, he can only have told me he's a police officer so that he can get me to do something and now he's asking for a discount and what can you do? He can arrest me.'

That might be a finding of fact that you make although that is not, of course, what we say the finding you should make is but you're the judges, not me, and you might then say, 'Well, you know, the girl might not have been consenting. The particular woman in question might not have been consenting. Her consent, what was in her head, was not free and voluntary, so has the state proven that he did not honestly and reasonably but mistakenly believe it?' I would suggest to you that if that's the factual scenario that you come to on the evidence, then he did not honestly or reasonably but mistakenly believe otherwise because there is only one way, one reason that he could ever have told these girls that he was a police officer. What else could it have been meant?

This is not like someone saying, 'Hey, I'm a doctor. Sleep with me.' That would be a deception but we wouldn't be charging the accused if he had gone to these girls and said, 'Hey, I'm a doctor,' big-noted himself and tried to make himself sound more interesting. What he did is he said, 'I'm a police officer' and he even tried to pretend to you that he didn't know it was illegal. Come on. Come on. He knew it was illegal and he certainly knew it was illegal by the time [P] was in his car kneeling down, twisting, acting concerned. What did he think was going on?

He told her and he told [T] that he was a police officer and there can be only one reason for it.

25 The then counsel for the appellant closed his case upon the same basis. He said (closing submissions, ts 13):

The prosecution's primary case is that [the appellant] set up a web of deception by pretending to be a police officer, at least inferentially, and that as a result of that he made threats to [T] and got her to do it for nothing. With [P] he got it on the cheap. 'You do this or else.' That's a threat if he said it. 'You're going to be in trouble if you don't do this.' That's a threat if he said it, but you would need to be satisfied beyond reasonable doubt that he spoke those words ...

26 Later in his submissions, the then counsel for the appellant stressed that P and T had consented only because they wanted the money. He said that, whatever either of them might have thought about the 'potentiality' of the appellant being a police officer, this had nothing to do with their agreeing to the act of sexual intercourse. He said (closing submissions ts 21):

What we say is that the prosecution have not gone close to proving that the reason for these girls agreeing to have sexual intercourse with him is because they believed he was a policeman. I suggest to you they slept with him because they were being paid to do it. You see, again the problems for this girl run as deep as they do for the other; drugs, dishonesty, inconsistency. I'm not going to labour it. You've heard it. It's a question for you.

27 At no time did the then counsel for the appellant make any complaint concerning what had been said by the prosecutor in her closing address. Nor did he seek any redirection from the trial judge in respect of the issue of consent. This is unsurprising, given the way that the trial had been run and the manner in which both counsel had closed their cases. The nature of the prosecution case had always been apparent.

29 By ground 5 the appellant contends that the verdicts of the jury cannot be supported by the evidence 'because there was no absence of consent as defined by s 319(2)(a) of the Code'. The argument put by counsel for the appellant was essentially that, even accepting the prosecution evidence, there was a free and voluntary consent in each case and the threats, intimidation, deceit or fraudulent means related only to the price to be paid for the services provided. He argues that each of the complainant was willing to engage in sex with the appellant and that the only issue between each complainant and the appellant was one of the amount that should be paid for that sex.

30 These contentions put in issue the proper construction of s 319(2)(a) of the Code. That section is best understood when regard is had to the legislative history.

31 As at 1 July 1972 the Code provided for the offence of rape. This was defined in s 325 as follows:

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 personating her husband, is guilty of a crime which is called rape.

32 As from 9 December 1976, that provision was amended by the addition, after the words 'not his wife,' of the words, 'or his wife whilst he is separated from her and they are not residing in the same residence'.

33 There was, at this time, no statutory definition of the word 'consent'. The word was consequently given its ordinary meaning.

34 The issue of consent induced by fraud was considered by the High Court in Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249. In that case the appellant deceived the complainant, who could speak no English, into believing that the two of them had been married in the course of a visit to a registry office. In that belief, she had sexual intercourse with the appellant. After a few days he left her and did not return. She discovered that there had not been a marriage ceremony. The appellant was charged with rape. The trial judge directed the jury that, if the complainant had acquiesced to sexual intercourse only upon the basis that she was married to the appellant and that belief had been brought about by the appellant's deliberate misrepresentation to her, made with the intention of persuading her to consent, then there would be no consent at all. The appellant was convicted.

35 The appellant applied for leave to appeal to the Victorian Court of Criminal Appeal. By a majority, leave to appeal was granted. All three judges (Lowe, O'Bryan & Monahan JJ) drew a distinction between consent given under a deception or mistake as to the act of intercourse itself and consent to that act induced by a deception or mistake as to an antecedent or collateral matter. The majority, Lowe & O'Bryan JJ, considered that a misrepresentation as to the performance of the marriage ceremony fell within the first category, under which the jury was entitled to convict. They said:

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.

The minority judge, Monahan J, considered that the sexual act was the act to which the complainant intended to consent and that the appellant was the person with whom she consented to perform that act. Accordingly, he considered that the consent fell within the second category and that the appellant should not have been convicted.

36 When the matter came before the High Court, it was unanimous in allowing the appeal and quashing the appellant's conviction. The court (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ) said (261):

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 bear 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, as was said before, 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 ...

37 In Holman v The Queen [1970] WAR 2, attention was given, in this state, to the meaning of the word 'consent'. Jackson CJ (with whom Burt J was in agreement) was critical of the use, by the trial judge, of the expression 'willing consent' when addressing the jury in a rape case. Jackson CJ said (6):

It is clear that in the first passage cited his Honour when using the phrase 'willing consent' is seeking to distinguish between a consent which is obtained by threats or by fear and one which is not so obtained. But the adjective 'willing' is apt to convey a very different meaning. The Concise Oxford Dictionary defines it as 'not reluctant, cheerfully ready', terms which when applied to 'consent' in relation to rape could be positively misleading. The further use of the phrases 'complete willingness' and 'a completely willing consent' emphasizes, in my view, a concept which is not in any way justified by the statutory definition, which is simply intercourse 'without her consent'. A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape. In my opinion, the passages to which I have referred in the summing-up constituted a misdirection in law.

38 This was how the law stood in 1980, when Mr Michael Murray QC (as Murray SPJ then was) was commissioned to review the Code. In June 1983, he reported his conclusions to the then Attorney General in two volumes titled: 'The Criminal Code: A General Review' (Murray Report). In his report, Mr Murray identified what he saw as 'deficiencies in [s 325] as it defines consent'. He said (220, 221):

It is illogical it seems to me to say that a consent is obtained at all where acquiescence is gained by threats or fear or intimidation, or any of the other matters mentioned in the section. Those occurrences are events which logically mean that an acquiescence, which is not true consent, has been obtained. The definition of consent should emphasise that what the law is interested in is a free and voluntary consent given without any form of pressure.

Also, for example, the definition makes it clear that the only types of fraud recognised as vitiating consent are those involving the identity of a person as the husband of a married woman or as to the nature of the act of intercourse itself. There are other types of fraud which should, but have been held not to, vitiate consent so as to constitute the offence of rape and I refer in this regard for example, to the High Court decision of Papadimitropoulos [1957] HCA 74; (1957) 98 CLR 249, 261 where the fraud concerned was as to the legality of the act because there were fraudulent representations as to the nature of a ceremony which had been performed which was in fact a bogus wedding ceremony. That clearly affected the question of consent to intercourse because the woman concerned clearly consented on the basis that she was married to the accused when in fact that was not so.

39 He went on to suggest a definition of 'consent' that he had devised. This read as follows (528):

'Consent' means a consent freely and voluntarily given and, without otherwise affecting or limiting the meaning of the word, a consent is not freely and voluntarily given if it is obtained by force, threats or intimidation, or by any deception or fraudulent means.

40 Subsequently, the Criminal Code was amended by the Acts Amendment (Sexual Assaults) Act 1985 (WA). This came into effect on 1 April 1986. Amongst other changes that were made to the Code, it repealed s 325 and inserted, in lieu, s 324G, which read as follows:

324G (1) For the purposes of this chapter, 'consent' means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.

(2) A failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.

41 In a case involving sexual penetration, that section was to be read with (amongst others) s 324D, which provided that a person who sexually penetrates another person without the consent of that person is guilty of a crime.

42 As Miller JA has pointed out, subsequently, in Ibbs v The Queen [1988] WAR 91, the Court of Criminal Appeal revisited what had been said in Holman. In his judgment (93) Burt CJ said:

[If] not positively wrong, it would be highly dangerous for a jury now to be told that for the purpose of the new offence of sexual penetration without consent: 'A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits [emphasis mine] it, providing her permission is not obtained by force, threats, fear or fraud, it is not' sexual penetration without consent.

Brinsden J expressed similar views (101). Smith J generally agreed with what had been said by the Chief Justice and by Brinsden J. (See also Wagenaar v The Queen [2000] WASCA 325 [19] (Ipp J, Kennedy & Pidgeon JJ concurring).)

43 On 1 August 1992 the Acts Amendment (Sexual Offences) Act 1992 (WA) came into operation. This repealed s 324G and substituted for it s 319(2) in its present form, quoted earlier in these reasons. That section is substantially similar to s 324G save that the word 'deception' was replaced by 'deceit' and the word 'any' was introduced before 'fraudulent means'. The amending Act also replaced s 324D with s 325, which was in identical language.

44 Section 319(2) and its predecessor, s 324G, substantially altered the common law, at least if read at face value. That is because the words 'obtained by force, threat, intimidation, deceit or any fraudulent means' are not expressly limited in any way.

45 The position is not the same in most other Australian States. Although other legislation provides, in one way or another, that consent to an act of sexual penetration will not provide a defence if it is obtained by force or threats or intimidation, in most instances consent induced by fraud or deceit is, in the context of a charge of unlawful sexual penetration, treated as no consent at all in only limited circumstances. For example, s 61HA(5) of the Crimes Act 1900 (NSW) reads as follows:

A person who consents to sexual intercourse with another person:

(a) under a mistaken belief as to the identity of the other person, or

(b) under a mistaken belief that the other person is married to the person, or

(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),

does not consent to the sexual intercourse.

46 There is a similar provision in the Crimes Act 1958 (Vic). Under s 36 of that Act there will be no consent in cases including the following:

(f) the person [victim] is mistaken about the sexual nature of the act or the identity of the person [offender];

(g) the person [victim] mistakenly believes that the act is for medical or hygienic purposes.

47 The Criminal Code Act 1899 (Qld), like the Code in this State, requires, amongst other things, that consent be 'freely and voluntarily given' (s 348(1)). However, while fraud is one of the factors that will vitiate consent under the Queensland Code, this category is restricted by s 348(2)(e) to 'false and fraudulent representations about the nature or purpose of the act'.

48 In some cases the legislation elsewhere in Australia also provides for a less serious offence of procuring sexual penetration by fraud. For example, s 57(2) of the Crimes Act 1958 (Vic) makes it an offence to procure a person, 'by any fraudulent means' to take part in an act of sexual penetration. That offence carries a maximum term of 5 years' imprisonment.

49 The legislation in the Australian Capital Territory and in Tasmania appears to be more widely drafted. Section 67(1) of the Crimes Act 1900 (ACT) provides that consent to sexual intercourse is 'negated' if that consent is caused, amongst other things:

(f) by a mistaken belief as to the identity of that other person; or

(g) by a full misrepresentation of any fact made by the person, or by a third person to the knowledge of the other person ... .

Section 2A(1) of the Criminal Code Act 1924 (Tas) provides that consent means 'free agreement'. Subsection (2) of that section goes on to provide that, without limiting the meaning of that expression, a person does not freely agree to an act if the person, amongst other things, 'agrees or submits because of the fraud of the accused' or 'is reasonably mistaken about the nature or purpose of the act or the identity of the accused'.

Significance of the legislative change in Western Australia

50 There has been some debate concerning the significance of the change to the common law introduced by the definition of 'consent', as it presently stands in this state. This has centred around the absence of any express limitation of the words 'deceit, or any fraudulent means' and of the words 'threat' and 'intimidation'.

51 Under the common law, the notion that consent obtained by fraud is no consent at all, in this context, has not been well received. In the well-known case of R v Clarence (1888) 22 QBD 23, Wills J, after commenting that this notion is not true as a general proposition either in fact or in law, went on to say (27):

If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent. In respect of a contract, fraud does not destroy the consent. It only makes it revocable.

It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification ... Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled. These illustrations appear to shew clearly that the maxim that fraud vitiates consent is too general to be applied to these matters as if it were absolutely true ... The only cases in which fraud indisputably vitiates consent in these matters are cases of fraud as to the nature of the act done.

Consent to a surgical operation or examination is not a consent to sexual connection or indecent behaviour. Consent to connection with a husband is not consent to adultery. I do not think that the maxim that fraud vitiates consent can be carried further than this in criminal matters. It is commonly applied to cases of contract, because in all cases of contract the evidence of a consent not procured by force or fraud is essential, but even in these cases care in the application of the maxim is required, because in some instances suppression of the truth operates as fraud, whereas in others at least a suggestion of falsehood is required. The act of intercourse between a man and a woman cannot in any case be regarded as the performance of a contract ... The woman's consent here was as full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or as to the identity of the agent.

These comments accorded with what Stephen J had earlier said, in his Digest of the Criminal Law (3rd ed, 1883) 185, to the effect that 'where consent is obtained by fraud the act does not amount to rape'.

52 In Australia, the High Court adopted a similar approach to that taken in Clarence when it said, as I have earlier mentioned, that the 'essential inquiry' is whether 'the consent is no consent because it is not directed to the nature and character of the act': Papadimitropoulos (260). That, taken with the court's other comments (261) to which I have referred, effectively meant that, unless the fraud was directed to the nature and character of the act of penetration, it was irrelevant to the question whether there had, or had not, been consent.

53 In England, Clarence has since been applied in R v Linekar [1994] EWCA Crim 2; [1995] QB 250. In that case the appellant had approached the complainant, a female prostitute, and negotiated a fee of 25 pounds for sexual intercourse. At the time he had no money on him and no means of paying, but deliberately concealed this from the complainant. After he had had sexual intercourse with the complainant, the appellant ran off without making any arrangement for payment. He was charged with rape, contrary to s 1 of the Sexual Offences Act 1956 (UK). That section provided that:

A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.

The appellant was convicted. The Court of Appeal quashed the conviction. After relying upon the passages to which I have referred in the judgments in Clarence, and after referring to what the High Court had said in Papadimitropoulos, the Court of Appeal concluded that the prostitute had consented to sexual intercourse with the appellant. The court found that the 'reality' of that consent was not destroyed by being induced by the appellant's false pretence that his intention was to pay the agreed price of 25 pounds for her services.

54 Subsequent to the decision in Linekar, the Sexual Offences Act 2003 (UK) was enacted. Section 76 of that Act raised a number of presumptions that were conclusive of the issue of consent and, consequently, when intercourse was proved, conclusive of guilt. One of these (s 76(2)(a)) operated when 'the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act'. In R v Jheeta [2007] EWCA Crim 1699, the Court of Appeal (Sir Igor Judge, Simon J & Judge Goldsack QC) considered that provision. The court provided a number of examples which, it said [27], demonstrated the 'likely rarity of occasions when the conclusive presumption in s 76(2)(a) will apply'. One of these was the situation that occurred in Linekar which, the court said [27], would not fall within its ambit.

55 As Miller JA has mentioned, in an article entitled 'Rape: When Does Fraud Vitiate Consent' (1995) 25 University of Western Australia Law Review 334, Mr G Syrota considered whether Linekar would have been differently decided in this jurisdiction. He suggests that the common law approach still applies, in Western Australia, in a case of that kind. He argues that there are three difficulties with the view that virtually any false pretence (and not merely those which relate to the identity of the perpetrator or the nature of the act) may negative consent, leaving the perpetrator guilty of an offence under s 325.

56 The first difficulty is that this would leave the then s 192(2) (now s 192(1)(b)) of the Code largely or wholly redundant. That section makes it an offence for a person to procure a woman, who is not a common prostitute or of known immoral character, by any false pretence, to have unlawful carnal connection with a man. Mr Syrota points out that, as with the corresponding English legislation, it has long been established that any false pretence is sufficient for the purposes of that section, provided that it induces the woman to engage in an unlawful carnal connection. He suggests that there would be little point in retaining that offence if any false pretence was also capable of bringing an offender within the ambit of s 325.

57 His second difficulty arises from the then provisions of s 202 of the Code (now s 192(2)). That section provides that it is no defence to a charge under s 192 that the act was done 'with the consent of the person with respect to whom the act was done'. Mr Syrota suggests that it is implicit in that section that there must be at least some types of false pretence which may induce a woman to have sexual intercourse with a man, but which do not vitiate her consent to it. He offers the same example as was given by Wills J in Clarence, in the extract from his judgment quoted above. Mr Syrota suggests that, if this type of pretence does not negative consent for the purposes of s 192(2), it must also not do so for the purposes of s 325, which requires proof of sexual penetration without consent.

58 Mr Syrota's third difficulty concerns the wording of s 325. He refers, in this respect, to the distinction drawn in Papadimitropoulos between the consent to the physical act of penetration and the inducing causes of that consent. He suggests that, as under the common law, it is the consent to the sexual penetration that is in question under s 325 and, so long as the woman comprehends the nature of the act and knows the identity of the man, her consent is established whether or not there has been fraud as regards a collateral matter. He goes on to say:

It is true that section 319(2)(a), which applies to section 325, speaks not merely of 'consent' but of 'a consent freely and voluntarily given'; but it is doubtful whether these words alter the fundamental requirement that consent relates exclusively to the 'physical fact of penetration' and that an inquiry into 'inducing causes' is not in point.

59 Consequently, Mr Syrota concludes that, to vitiate consent and bring an accused person within s 325, the fraud must relate either to the identity of that person or to the nature of the act. He suggests that other frauds, which do not vitiate consent, can be dealt with either under s 192(2) or s 409 (which deals generally with the offence of fraud).

60 Mr Syrota's view, while shared by some (see EJ Edwards, RW Harding and IG Campbell, The Criminal Codes: Commentary and Materials (4th ed, 1992) 542 and see, also, E Colvin and J McKechnie, Criminal Law in Queensland and Western Australia: Cases and Materials (5th ed, 2008) [6.10]), is not shared by others. Simon Bronitt, 'Rape and Lack of Consent' (1992) 16 Criminal Law Journal 289, 300 - 301, suggests that the approach adopted by the then s 324G of the Code is such that 'any fraudulent behaviour which induces a person to have intercourse will vitiate consent'. RG Kenny, An Introduction to Criminal Law in Queensland and Western Australia (6th ed, 2004) says (307) that the definition of consent in s 319(2) of the Code 'does not limit the deceit or fraudulent means to the nature of the sexual act and these terms may be broad enough to extend to the wider aspects of deception such as arose in Papadimitropoulos'.

61 Neil Morgan, 'Oppression, Fraud and Consent in Sexual Offences' (1996) 26 University of Western Australia Law Review 223 compares what he refers to as the 'narrow view' taken by Mr Syrota and others with the 'wide view' of s 319(2)(a) taken by Mr Bronitt and others (including B Fisse, Howard's Criminal Law (5th ed, 1990) 180 - 183).

62 Professor Morgan suggests, rightly, that the ramifications of the wide view are truly dramatic. He offers examples of a man who falsely professes his undying love for a woman who agrees to have sexual intercourse only because she believes his protestations; of a woman who tells a man that she is unmarried when she is in fact married; and of a woman who agrees to sexual intercourse on the basis of the man's false promise that he intends to marry her. He suggests that it cannot have been intended that the law of sexual assault should reach so far or that attempted sexual assault charges might lie in the case of failed 'seductions'.

63 However, Professor Morgan takes a different approach from that adopted by Mr Syrota. He acknowledges that those who adopt the common law approach, notwithstanding the definition in s 319(2)(a), are able to point to the fact that, before referring to 'force, threats, intimidation, deceit, or any fraudulent means', that section specifically states that these factors do not 'in any way [affect] the meaning attributable' to the requirement that consent must be freely and voluntarily given. However, he suggests (231) that the more natural reading of the definition would seem to be that the phrase is intended to extend rather than to restrict the possible operation of the law. He points out that this would be more in line with what was said in the Murray Report. He goes on to say (231):

It is therefore submitted that section 319(2)(a) requires the courts to focus on the defendant's fraud rather than the victim's mistake. This ensures a clearer focus on the defendant's culpability and also accords with the policy behind modern sexual assault laws which ... should seek to protect victims from violence and various forms of exploitation and not from their own mistakes.

64 Professor Morgan draws a distinction between cases involving force, threats and intimidatory behaviour, on the one hand, and fraud, on the other. He suggests (233) that, in cases other than fraud, judges should leave it to the jury to decide whether, as a matter of fact, there was free and voluntary consent as opposed to mere acquiescence. However, he says that, since sexual assault laws target cases of violence and the abuse of power, they should not be used, in cases such as Linekar, to regulate what may be regarded as essentially commercial transactions. He points to the fact that the victim of Mr Linekar's deception had agreed to have sexual intercourse with him and was under no misapprehension as to the nature or moral quality of the act or the reasons for it. He argues (234) that a conviction for a lesser offence of fraud rather than sexual assault would adequately and appropriately reflect the degree of criminality. He consequently argues that the courts should reject the view that any type of fraud can vitiate consent, describing that view as unworkable and as generating many practical difficulties. He suggests that the courts should adopt legal rules which delimit the situations in which fraud vitiates consent, by reworking the common law rules, and that they should not regard this as merely a question of fact for the jury.

65 There is a helpful discussion of the factors that should vitiate consent in a discussion paper published by the Model Criminal Code Officers Committee in 1996, headed 'Chapter 5: Sexual Offences Against the Person'. The authors favour the Western Australian Code's use of the words 'consent freely and voluntarily given'. They say (49) that this phrase makes it clear that lack of consent is not confined to physical circumstances involving the use of force or violence and that it emphasises that consent should be seen as a positive state of mind. They say, as regards fraud, that the argument in favour of a wide view is that there is 'little justification for restricting the basic offence to fraud as to the identity or nature of the act, thereby excluding the circumstances which arise in cases such as Papadimitropoulos and Mobilio'. This last reference is to R v Mobilio [1991] VicRp 28; [1991] 1 VR 339, in which the fraud caused the victim to believe that penetration (by a medical instrument) was being effected for medical diagnostic purposes. This argument in favour of the wide view suggests (55) that, because the victim consents in such cases only because of the deception, it should be open to prosecute the accused 'for the basic offence'. The contrasting view put up by the Committee is that 'the basic offence should be restricted to cases involving force or the threat of force, whether express or implicit'.

66 The authors say (55), in regard to fraud, that it is conceded that the common law categories are correct. They go on to say:

However, to allow consent to be negated by any type of fraud threatens the seriousness of the offence. The basic offence should not be extended to cover conduct that is merely dishonest. To do so would mean that unlawful sexual penetration could be committed by mere deceit or trickery:

'The possibilities of misrepresentations are endless, ranging from one spouse's lie that he has obtained a job or that he is the benefactor of the delivered flowers, to assurances about possession of sexual dexterity and declarations of love and respect, to proffering a prostitute a worthless cheque.' (Cunliffe I 'Consent and Sexual Offences Law Reform in New South Wales' (1984) 8 Criminal Law Journal 271 at 281).

Again, while inducing others to take part in a sexual act by deceptive means may not be acceptable to most people, there is no public interest served in making this type of behaviour subject to the sanction of the criminal law. Alternatively, there may be some particular acts of fraud which should come under the criminal law. However, these ought to be the subject of some lesser offence such as those relating to procuration.

67 The words 'obtained by force, threat, intimidation' have also given rise to difficulty. In Howard's Criminal Law above, Fisse suggested that these words, notwithstanding their literal width, left room for doubt in four directions (183). These were:

first, whether threats or the actual application of force is limited to [the victim]; secondly, whether threats or intimidation are limited to serious bodily harm; thirdly, whether [the victim's] belief that she has been threatened need be reasonable; and fourthly, whether the threats need be immediate.

68 The first and fourth of the questions posed by do not arise in this case. The threats were made, in each case, to the victim and they were immediate. However, it is difficult to see why, on the ordinary meaning of the words used in s 319(2)(a) of the Code, the threat should be one directed at the victim or why it should be 'immediate'. The question for the jury will always be whether or not the consent was freely and voluntarily given or, relevantly to this issue, whether it was obtained by threat. On the face of it, it is difficult to see why the legislature should have chosen to distinguish between a threat, for example, to a spouse or sibling of the victim, so as to force the victim to consent to intercourse, and one of harm to the victim himself or herself. As will be apparent, s 325 of the Code, in its original form, referred to 'threats or intimidation of any kind'. However, it does not seem to me that the deletion of the words 'of any kind' was intended to limit the words 'threat' and 'intimidation'. Section 324G, which followed the Murray Report, merely adopted the form of words suggested in that report. Equally, because the question is whether or not the consent was 'obtained by' force, threat, intimidation, deceit, or any fraudulent means, it is difficult to see why the threat should necessarily be immediate. The victim may be as much induced to consent by a threat of something that is to happen in the future as by something that will happen more immediately. However, because these questions were not addressed, at all, in argument, it is unnecessary to reach any final decision in respect of them.

69 The second, and perhaps the third, of the questions posed by Fisse do arise in this case, although, once again, no argument was addressed to them. Both questions were touched upon in R v P S Shaw [1995] 2 Qd R 97. That case concerned the proper construction of s 347 of the Criminal Code 1899 (Qld) and, in particular, the meaning of the words 'by means of threats or intimidation of any kind'. Pincus JA considered the meaning of those words (114). He arrived at the following conclusion:

The types of cases in which the threat has been one of creating for the complainant a problem in returning home illustrate the difficulty associated with holding that the reasonableness or proportionality of the reaction to the threat is irrelevant; if the threat not to take a complainant home is one which, if carried out, would cause her mere inconvenience or minor expense, but nevertheless induces consent, it would seem odd that this should be treated as rape. In the present case the jury might rationally have arrived at the conclusion that the complainant's submitting to intercourse and the other acts involved was, considering her personal characteristics and situation, a response to the threat which one might expect such a young girl to make. The appellant's previous treatment of the complainant was such as to give the threat that the complainant would not go home a particular significance, referred to in the Crown's submission below, namely that of a threat to keep her in the location in Innisfail where she would be 'available for sexual misuse at the hands' of the appellant. So that if, as I think one should, one reads the reference in the statute to consent obtained by means of threat as confined to instances in which the threat is one of substantial harm, the evidence is sufficient to support a conviction. Further, the judge's directions were sufficient to convey to the jury the notion that substantial harm must be threatened.

70 McPherson JA took a wider view of the operation of the section. He said (115):

The question here was not whether a woman of average fortitude, maturity, or determination would have ignored or resisted a similar threat if made to her, but whether the consent of this particular complainant was induced by the threat made to her by the appellant. Under s 347 it was sufficient for the purpose if the complainant's consent was in fact obtained by means of threats or intimidation 'of any kind'. The section does not require that the threats or intimidation must, objectively speaking, be substantial. That is not surprising when it is borne in mind just how much human attitudes and behaviour may vary from one individual to another.

71 The third judge, Fitzgerald P, found it unnecessary to consider the issue. However, he said (111):

If the law is to be amended, care should be taken not only to ensure that the law does not punish as rape conduct which ordinary members of the community would not place in that category; the law's protection should not be denied to women who are weak or vulnerable to domination and exploitation, whose consent to intercourse can be obtained by taking advantage of their condition, and is not a free and informed exercise of will.

72 There are other suggestions that reasonableness of the victim's response to the threats or intimidation is not a requirement. Joscelyn Scutt, 'Consent v Submission: Threats and the Element of Fear in Rape' (1977) 13 University of Western Australia Law Review 52, 66 said:

If the idea of consent is applied as a subjective standard - which would seem to be the only intelligible standard which could be applied to the term - then it would seem irrelevant that another person would not have been terrified, or her reason overcome, by a threat of a similar nature. What might validly interfere with one person's ability to consent may be of no moment to another. The definition of rape is not that it is 'sexual intercourse without consent of the reasonable man'.

This approach is supported by S Bronitt and B McSherry, Principles of Criminal Law (2nd ed, 2005). The authors suggest (578) that this subjective approach to fear is consistent with the policy of 'taking your victims as you find them'.

73 As to the nature of the threat, Colvin and McKechnie suggest [6.10] that the interpretation of the broad phrase 'freely and voluntarily' is yet to be determined and that there may be room for debate over the significance of harassment and economic pressure as forms of intimidation.

74 It seems to me that, on their ordinary meaning, the words 'threat' and 'intimidation' are not limited to the threat of physical violence. A threat is as much a threat if it is one, for example, of blackmail as it is if it is one of physical violence. The same is true of a threat of substantial economic harm. However, there remains a question whether a line should be drawn and, if so, where.

75 Mr Syrota suggests (344) that the word 'threat', in the definition of consent, does not mean 'any threat'. He says:

Suppose, for example, that D threatens a woman that, if she does not submit to intercourse with him, he will (i) report her to the Tax Office for tax evasion; or (ii) make sure that she is dismissed from her job; or (iii) make it difficult for her to get a bank loan which she desperately needs; or (iv) cease 'dating' her on a regular basis. Surely the Criminal Code requires a line to be drawn somewhere, but regrettably section 319(2)(a) gives no clue as where it is to be drawn.

He suggests that judges should direct juries, as a matter of law, as to which types of threat may vitiate consent, in the sense of rendering it other than free and voluntary.

76 There is an obvious difficulty, in circumstances in which no limitation has been imposed by the legislature, in the notion that judges should direct juries, as a matter of law, as to which types of threat may vitiate consent in the sense to which I have referred. While difficulties may arise if any threat is to suffice, it seems to me that the legislature has chosen to impose a subjective test which does not have regard to the nature of the threat except insofar as the jury is required to assess whether the victim's consent was in fact 'obtained by' the threat or intimidation.

77 The meaning of the words 'obtained by' was considered by the Queensland Court of Appeal in R v BAS [2005] QCA 97. Fryberg J (Davies JA concurring) said [98] that the question whether consent was obtained 'by' a representation involved an inquiry into whether there was evidence of a causal link between the representation and the obtaining. Although regarding it as inappropriate in the circumstances of that case to embark upon an examination of the concept of causation in this context, Fryberg J said:

I must however disclose the basis upon which I approach the present case. First, the law does not require the representation to be the sole cause of the obtaining of consent; it is sufficient if it plays a substantial (ie more than trivial) part in that process. Second, (without determining whether the reasoning in March v E & M H Stramare Pty Ltd ((1991) [1991] HCA 12; 171 CLR 506) can be applied in the present context) the concept of causation in this context is one of practical or commonsense causation and for that reason, particularly suited to determination by a jury. What was said of negligence in Bennett v Minister of Community Welfare is applicable here: 'In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of commonsense ((1992) [1992] HCA 27; 176 CLR 408 at pp 412 - 13)'. Third, that being so, when a material representation is made which is calculated to induce the representee to give consent and that person in fact gives consent, it is open to the jury to infer that she was induced to do so by the representation (compare Gould v Vaggelas [1984] HCA 68; (1985) 157 CLR 215 at p 236 per Wilson J). In practice I do not think that proposition involves any reversal of the onus of proof. The jury will always be deciding the question in a context; whether they draw the inference will depend upon the context.

78 It is important to bear in mind that the consent referred to in s 325 is one that is freely and voluntarily given: s 319(2)(a). The definition makes it clear that consent is not freely and voluntarily given 'if it is obtained by force, threat, intimidation, deceit, or any fraudulent means', without in any way affecting the meaning attributable to the words 'freely and voluntarily given'. As Professor Morgan points out, the more natural reading of the words 'without in any way affecting' is that the phrase is intended to extend rather than restrict the possible operation of the provision. Also, that interpretation accords with the recommendation made in the Murray Report. (Although other submissions were also received prior to the enactment of the Acts Amendment (Sexual Assaults) Act 1985 (WA), it seems very probable, from the fact that the Act effectively adopted the definition in the report, that the recommendation was accepted by Parliament.)

79 On the face of it, the question whether or not consent has been obtained by any of the forbidden means is a factual question to be determined by the jury.

80 In the present case, in my opinion, the consent of the victims must have been found by the jury to have been obtained 'by' threat or intimidation. The jury must have accepted the evidence of each of the complainants to the effect that she agreed to provide the sexual services, in circumstances in which she would not otherwise have done so (payment of less than an acceptable amount or non-payment), solely because she was afraid that the appellant would arrest her or otherwise make trouble for her.

81 That seems to me inevitably to follow from the fact of the convictions (more especially when regard is had to the way that the case was run by both prosecution and defence). I have mentioned that, in T's case, the appellant denied that he had said that he was a police officer and asserted that he had negotiated, and paid, a lower price. The jury must have rejected his evidence and accepted that of T. If the appellant told T that he was a policeman that, of itself, would have carried an implied threat. It could not sensibly be suggested (and nor was it) that he could have had any other reason for telling her that. It was not in dispute that P was under the impression that the appellant was a police officer (although the appellant said that this was only because of what he had previously told her in an attempt to 'big note' himself). The jury must have accepted P's evidence that it was only because of her belief that he was a police officer (with or without the other words said to have been spoken by him) that she was induced to agree to provide her services at a discount. That, in turn, could only have been because of the implicit threat (or an express threat, if her evidence in that respect was accepted) that, if she did not do so, he could make trouble for her because of his status as a police officer, given her vulnerable situation.

82 In these circumstances I am unable to accept that the jury could have thought that the appellant's deception of the two women played any part at all in inducing consent, other than by reason of the fact that it facilitated the making of the express threats spoken of by the two women or by means of the implicit threat that the very fact of being a police officer would have conveyed to each of the women. Each spoke of being induced to consent by her fear that the appellant would otherwise arrest her. There was no suggestion by either that her consent was induced by anything else. The only inducing factor that was put to each of them in cross-examination was that of payment of an agreed fee.

83 There is no ground of appeal relating to, and no submissions have consequently been addressed to, the issue of honest and reasonable, but mistaken, belief on the part of the appellant that the consent of each of P and T was freely and voluntarily given. It is consequently unnecessary to deal with that issue. However, because EM Heenan AJA has addressed it in his reasons for decision, I will comment briefly on it.

84 The issue was touched upon by the then counsel for the appellant in his closing address to the jury. It was also addressed by the trial judge in his summing up. Not surprisingly, however, the emphasis of the defence case was upon the unreliability of P and T and upon the suggestion that they had lied to the police about the appellant so as to ingratiate themselves with the police in order to extricate themselves from other 'difficulties' then faced by them. It is apparent from the verdicts that the jury were satisfied that a defence of mistake had been negatived. That seems to me to have been an inevitable outcome. As I have said, the appellant could have had no other motive than that of inducing fear by his claimed status as a police officer. Even if he did hold the belief that his assertion that he was a police officer had done nothing to induce consent it seems to me to be unthinkable that the jury would have found this to be reasonable.

85 Next, it seems to me that, whatever limitations there might be, if any, as regards the kind of threat that is comprehended by s 319(2)(a), a threat, whether express or implied, made to a vulnerable person to make trouble for that person by arresting her or taking other legal steps against her, in circumstances in which the person making the threat is apparently in a position to carry it out, is a threat or intimidation of the kind contemplated by the section.

86 On this analysis, there is no need to decide what is comprehended by 'deceit or any fraudulent means'. The fact that the threat or intimidation was made possible only by the appellant's dishonest behaviour seems to me to be unimportant, even if it should be thought that dishonest behaviour of that kind does not fall within the phrase 'deceit or any fraudulent means' (an argument which must cope with the width of the language used). In circumstances in which the consent was in each case obtained by threat or intimidation, it does not matter whether the ability to make the threat, or to intimidate the victim, was or was not brought about by deceit or any fraudulent means. I have mentioned that the case was left with the jury by the trial judge upon the basis that, if they were to find that any one of threat, intimidation, deceit or fraudulent means had induced the consent, they should find that consent had not been freely and voluntarily given. However, as I have said, in this case the deceit or fraudulent means (if it could be so categorised) constituted by the appellant's claim to be a police officer could only have induced consent by the resulting threat or intimidation. As I have stressed, that was the way in which the case was run by both parties and it was not (and, in my respectful opinion, could not have been) suggested otherwise. Consequently, nothing turns upon the distinction for present purposes.

87 I am also unable to accept that the consent was freely and voluntarily given, in each case, because the threat or intimidation related only to the amount to be paid. An analysis of that kind assumes that, merely because each complainant was prepared to have sex with the appellant at a price, she had freely and voluntarily consented to have sex with him regardless of whether or not he was willing to pay the price. That was not the case. In P's case, were it not for the threat and intimidation, she would not have provided the services provided by her at all. She was willing to give her free and voluntary consent only if $150 was paid. That was the plain effect of her evidence. The fact that the appellant might have provided her with an extra $50, had she held firm, is not to the point. He did not provide, or offer to provide, the extra $50. Similarly, in T's case, it is obvious from her evidence that she would not have had sex with the appellant at all, were it not for his threats and intimidation of her. She was a drug addict who needed money. It was only for that reason that she was willing to have sex with the appellant. The fact that the two complainants were prostitutes seems to me to be irrelevant in this context. While each was prepared to provide sex in return for money, neither was prepared to do so for less than the rate stipulated by her.

88 I should also say that it seems to me that, as desirable as this might be, it is no easy matter to distinguish between threats and intimidation, on the one hand, and deceit or any fraudulent means, on the other, in the way suggested by Professor Morgan. The words of the definition were plainly intended by the Murray Report to be given a wide operation and, as I have said, the wording suggested by that report was substantially adopted. It also seems to me that s 319(2)(a) cannot be read down by resort to s 192 and s 202, as suggested by Mr Syrota. The fact that the same conduct might give rise to more than one offence under the Code is a slender basis upon which to read down the plain meaning of the words used. Finally, I should say that the suggestion that this court might rework the section according to common law rules is not without its difficulty. The court is, of course, bound by the legislation enacted by the Parliament. Resort to the common law, when interpreting a statute, is appropriate only when its language is ambiguous or in other special circumstances (which are not presently applicable): Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263 (Dixon & Evatt JJ); R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 18 - 19 (McHugh J).

89 Because of these difficulties (in respect of which I express no final opinion, it being unnecessary for me to do so), it seems to me that the most appropriate solution is that the legislation should be amended. Plainly, the use of the words 'deceit or any fraudulent means' renders the section susceptible to an interpretation that is dramatic in its reach, for the reasons suggested by Professor Morgan and Mr Syrota, amongst others. There is obviously a need for some limit to be placed upon the meaning of those words. That is best done by the legislature.

90 I would grant the appellant leave to appeal on ground 5. However, for the reasons given I would decline to uphold that ground.

91 It follows that I would dismiss the appeal against conviction.

92 As Miller JA has pointed out, the State raises only two grounds in the appeal against sentence. The first is that the sentencing judge imposed inadequate terms for the individual offences, having regard to their seriousness. The second is that the sentencing judge gave undue weight to the totality principle.

93 On each of counts 1, 2, and 4 (each of which involved sexual penetration by way of fellatio) the sentencing judge imposed a term of 20 months' imprisonment. In respect of each of counts 3 and 5 (each of which involved penile/vaginal intercourse) he imposed sentences of 2 years' imprisonment. The sentences imposed in respect of the convictions on counts 1, 2 and 3 were ordered to be served concurrently. Those imposed in respect of the convictions on counts 4 and 5 were directed to be served concurrently with each other, and partly concurrently with the terms imposed on counts 1, 2 and 3. That was done by ordering that the sentences to be served in respect of counts 4 and 5 were to begin after the appellant had served 10 months of the sentences imposed in respect of counts 1, 2 and 3. This gave rise to the total term of 2 years and 10 months' imprisonment. The appellant was made eligible for parole.

94 It is trite that in appeals against sentence (whether on grounds of excessiveness or inadequacy) the following principles, enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505, must be applied:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

(See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325 (Gleeson CJ & Hayne J), 329 (Gaudron & Gummow JJ).)

95 In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672, the Court remarked that the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way. In Dinsdale (339), Kirby J, after referring to this passage, said [58]:

Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it ... As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.

96 State appeals are in a special category. The principles in respect of them are well-known. They were set out by Charles JA, with whom Winneke P and Hayne JA agreed, in R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522. Those principles have been applied in many subsequent cases: see, for example, The State of Western Australia v Houston [2005] WASCA 167 [52] - [54]; The State of Western Australia v Walley [2008] WASCA 12 [25] - [26] (Wheeler & Miller JJA). It is enough, for present purposes, to say that appeals by the State should be brought only in 'the rare and exceptional case' (Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson & Gaudron JJ)) to establish some point of principle. An example might be a case in which the sentence imposed 'reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle': Clarke (522); Everett (300). Another example is when it is necessary to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: Clarke (522); R v Osenkowski (1982) 30 SASR 212, 213 (King CJ, White J concurring).

97 The sentences imposed in this case, whether looked at individually or as a matter of totality, do not, in my respectful opinion, reveal 'such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle'. Nor do they seem to me to be so disproportionate to the seriousness of the crime 'as to shock the public conscience'. No other basis for intervention has been suggested.

98 Prostitutes need as much protection from sexual predators as anyone else. They are often more vulnerable to exploitation than others, as this case reveals. However, in the case of offences against prostitutes, as with any other victim, there is a vast range of possible criminality. That is why the legislature fixes maximum penalties for sexual offences rather than minimum penalties. It is also why the courts constantly assert that there is no 'tariff' for this kind of offending: see, for example, R v Podirsky (1989) 43 A Crim R 404, 411 (Malcolm CJ, Pidgeon J concurring); R v Quartermaine [2000] WASCA 341 [16] (Wheeler J, Kennedy & Wallwork JJ concurring). In this case, the appellant's offending behaviour seems to me to have been very much towards the lower end of the potential range of criminality. In neither case was there any violence or threat of violence. In each case the complainant was prepared to have sex with the appellant at the time and place where that was done, if her fee was paid. In P's case, she was paid money, albeit less than the minimum that she was prepared to accept in return for sex.

99 It is difficult to find truly comparative sentences in a case such as this (we were not referred to any). However, there are cases that provide some (necessarily limited) assistance.

100 In Linekar the offender was sentenced, at first instance, to a term of 2 years probation and 100 hours of community service. Because the appeal against conviction succeeded, the issue of sentence did not arise in the Court of Appeal, although Morland J commented that the sentence imposed 'indicates the unusual facts of the case' (71). The maximum penalty that could have been imposed was one of life imprisonment.

101 In R v BMA [2005] NSWCCA 328, the complainant had attempted to shoplift items from a store. The defendant approached her. He told her that he was watching her. She thought that he was employed as an 'undercover' security officer. The defendant told her that he would tell security what she had done. He then told the complainant that he could help her if she could help him, and pointed to his groin. The complainant, feeling scared because of her ongoing belief that the defendant was a security officer, accompanied him to nearby toilets. There, at the defendant's request, the complainant fellated him and then masturbated him until ejaculation. The defendant then removed $200 from the victim's purse. He left, taking the money, which he subsequently spent. The appeal was one against conviction only. However, Studdert J mentioned that the appellant had been sentenced, in respect of the act of fellatio, to a non-parole period of 12 months with a balance term of 3 years. The maximum penalty provided was one of 14 years' imprisonment.

102 In R v Rajakaruna [2004] VSCA 114; [2004] VSCA 114; (2004) 8 VR 340, the applicant was convicted of four counts of rape, two counts of assault, one count of procuring sexual penetration by fraudulent means and one count of attempting to procure sexual penetration by fraudulent means. The offences related to four different complainants. Each of them was a prostitute. In some cases physical force was used by the applicant. However, in one case, when the prostitute refused to engage in sex with the applicant in his car unless she was first paid, the appellant put his wallet on the central console in the front seat to show that he had money to pay her, implying that he would do so after sex. In the belief that she would be paid, the prostitute had sex with the applicant. The applicant did not, and had never intended to, pay her for her sexual services. This gave rise to the charge of procuring sexual penetration by fraud.

103 The applicant, who was 22 years old, had no prior convictions. He displayed a continuing lack of remorse. He was sentenced in respect of all of the offences to a total term of 9 years and 6 months' imprisonment. He was ordered to serve 7 years' imprisonment before being eligible for parole. For present purposes, only the penalty imposed in respect of the offence of procuring sexual penetration by fraud is relevant. In that respect the applicant was sentenced to a term of 2 years' imprisonment. The offence carried a maximum term of 5 years' imprisonment: s 57 of the Crimes Act 1958 (Vic). Because the majority allowed the appeal against conviction, it was unnecessary for them to determine the appeal against sentence. However, Chernov JA, who was in the minority, dismissed the applicant's appeal against sentence.

104 These cases, although decided in different jurisdictions, seem to me to support the proposition that the sentences imposed in this case, while low, are not so low as to warrant intervention on a State appeal. Although the trial judge imposed partially concurrent sentences notwithstanding that there were separate complainants who were offended against at different times (as to which see VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [295]), this was done for totality reasons. Had I been exercising the trial judge's discretion, I might have done so differently in that respect. However, that does not justify intervention. There was, in my respectful opinion, no error of principle sufficient to justify a State appeal. Nor were the individual sentences, or the total

sentence, so lenient as to shock the public conscience. I would dismiss the appeal.

105 It is unnecessary for me to deal with the notice of contention. Had it been necessary for me to deal with it, I would have dismissed it for the reasons given by Miller JA.

106 I would dismiss the appeal against conviction and that against sentence.

107 MILLER JA: The appellant in the first appeal was tried before Eaton DCJ and a jury on five counts of sexual penetration without consent. Three counts related to a complainant P. Two counts related to a complainant T. Both complainants were prostitutes.

108 The appellant was convicted on all counts by the jury on 24 November 2006. He was sentenced to an effective term of imprisonment of 2 years 10 months' imprisonment. On counts 1, 2 and 4, he was sentenced to 20 months' imprisonment and on counts 3 and 5, he was sentenced to 2 years' imprisonment. The sentences on counts 1, 2 and 3 were ordered to be served concurrently and likewise the sentences on counts 4 and 5. This meant an effective term of 2 years' imprisonment for what were described as 'each group of sentences'. There was an order for partial concurrency, so that the effective sentence was 2 years 10 months. An order was made for eligibility for parole and the appellant's earliest date for eligibility for parole is 22 August 2008.

109 In the second appeal, the State, as the appellant, contends that the sentence imposed against the respondent in that appeal was manifestly inadequate.

110 In this appeal, there are five grounds. A fifth ground was added with the leave of the court at the hearing. Leave had previously been granted to appeal on grounds 1 to 4 inclusive. Leave is required in relation to the additional ground 5.

111 The grounds, without particulars (save for ground 5), are as follows:

1. The learned trial Judge erred by failing to restrict the prosecution's case to an allegation of either threats or, alternatively, deceit or fraud as the vitiating factor relating to the Complainants' consent:

1. The learned trial Judge erred when he told the jury that each of the complainant's [sic] had recently complained of the offences, when they hadn't, such that there was a miscarriage of justice.
2. The learned trial Judge erred in failing to give to the jury a direction of the type referred to by the High Court of Australia in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427:

1. The learned trial Judge erred in law by failing to direct the jury that there was no corroboration of the essential facts in dispute in the case:

1. Pursuant to s 30(3)(a) of the Criminal Appeals Act 2004 the jury's verdict should be set aside as they cannot be supported by the evidence;

(a) there was no absence of consent, as defined in the Criminal Code, concerning either complainant.

112 The complainants P and T were 'street prostitutes' who were operating in the North Perth and Highgate districts of Perth. P described her activity as 'walking around the streets in Highgate' and T said that she worked the streets in Northbridge around the Hyde Park Hotel area.

113 P had previously worked at 300 International, a brothel in Pier Street, Perth. She met the appellant in late 2003 or early 2004, when he selected her for sex. He paid the appropriate money to the receptionist and engaged in sexual relations with her. She described him as 'a bit drunk'. Whilst he was dressing, after he had taken a shower, he pulled a black wallet from his trousers, opened it and showed it to P. It contained a Western Australian Police. He said, 'Well, I'm a police officer'. The badge seemed to be authentic. She was a little worried, because she regarded her activity as illegal. She had previously been arrested in relation to prostitution and had been given a 'move on notice' (Prostitution Act 2000 (WA) s 24).

114 In February 2004, P was walking the streets in Highgate when a vehicle stopped. She jumped in the vehicle and it drove away. She thought she recognised the driver, but did not initially recognise him as the man she had seen at International 300. The price for sexual services was discussed and P then said to the driver, 'Don't I know you from somewhere'. He replied, 'Yes, I'm the policeman from - and I met you at 300'. P then discussed with the driver (who transpired to be the appellant) the prices she charged for different sexual services. He then said to her, 'Well, I'm a policeman', and showed her his badge. He said, 'So you should discount your services or else'.

115 P said that she was scared of being arrested and charged. She did discount the cost of her services, indicating that she would give him a 'full service' for $100. It would otherwise have been $150.

116 The appellant then drove to an ATM at the Dog Swamp shopping centre. It appeared to P that he obtained money at the ATM. He drove back up Charles Street and out to a carpark at Herdsman Park. There, P and the appellant hopped out of the vehicle. The appellant said, 'We should jump out here and go in the bush or something', and he took a blanket from the back of the car. They lay on the blanket on the grass near some bushes and P provided the full service to which she had agreed. This was oral and vaginal sex.

117 P said that, normally, she gets the money straight away and before the services are delivered. At the point where the blanket was laid on the lawn, she asked for the money and she was given $100. Oral sex was then performed by P upon the appellant and then the appellant had vaginal intercourse with P. During the course of these events, P described herself as being scared that, if she said 'No', she would be arrested.

118 When sex had concluded, P got back into the appellant's vehicle and she asked to be dropped off near the Charles Hotel in North Perth. She said that, during the course of the journey, the appellant said that he worked at the Warwick police station and that if P wanted him to get the police off her back, he could do it. She said that she might take him up on that offer. The appellant asked her for her telephone number. She did not want to give it, so she gave him a false number. He tried to ring it, but it did not answer. She then gave her correct number and he rang it and the telephone responded.

119 P said that she would not have discounted the price she charged for sex with the appellant, but for the fact that she believed him to be a police officer. She said that she did not wish to have sex with him, or provide the full service to him for the price that she got and that she would not have 'done the other things' that she did. By this, she was referring to his kissing of her on different parts of the body.

120 P testified that, some time after this event, she received a telephone call from the appellant in which he said, 'I'm the policeman' and he inquired whether the police were still hassling her to make a statement. He said that he had taken care of things for her. According to P, he rang on two or three further occasions.

121 Some time later, P learned that the appellant was not, in fact, a policeman. After she was aware of this, she was walking along Lincoln Street, past William Street, when she saw the appellant in his vehicle. She got into his vehicle, but he said that he was meeting somebody and that he would be around later. She then got out of the vehicle. As he drove away, she took the registration number and memorised it. She walked to a telephone box and rang the street prostitution team and gave them the registration number.

122 T gave evidence that she was working on the street around the Hyde Park Hotel in Northbridge during the first part of 2004. She knew that her activity was illegal. She had been given a 'move on notice' on one occasion.

123 In early April 2004, she saw the appellant's vehicle. On one occasion, it followed her when she was in the vehicle of a client. Early in the month of April 2004, she was picked up by the appellant. Her recollection was that she asked him if he was a 'cop'. He replied that he was not. She then discussed her prices. Her price for a full service was $100. This included oral and vaginal sex. T testified that it was agreed that she would deliver a full service and that they would go to Maylands for it. They went to an undercover carpark in Maylands.

124 A few minutes before reaching the carpark, the appellant said that he was a police officer and that she was to perform the services so she would not get into trouble. The appellant told her that she would be in big trouble if she did not do what he wanted. He wanted the services without payment. She did not want to provide these services without payment and she said that at no point would she have agreed to provide them without payment. She understood that, unless she did what she was asked, she would be in trouble because she had experienced a lot of trouble with police in the past. She said that police were always trying to arrest her and she was a known drug-user. She did not want to be arrested or charged with any offences. She said that she did not actually agree to perform the services without charge, but said nothing.

125 Oral and vaginal sex then took place. She was then driven back to the location where she was working. As she got out of the vehicle, she dropped her handbag and all of her things fell out. Because she was in a hurry to collect her things, she was unable to get the numberplate of the appellant's vehicle. At the time, she made no report to the police as to what had occurred, but she subsequently reported the matter to police. She did this in consequence of finding out that a friend of hers had experienced the same problem with the appellant.

126 T was able to get the appellant's registration number on an occasion when she was with another client at her unit. She was pulling out of the driveway, when she saw the appellant go past. She followed his vehicle and came alongside him, where T said to him, 'You're dead', and wrote down his registration number. She gave that number to a police officer.

127 After the complaints made by P and T, police investigated the registration details that had been given. They revealed that the vehicle was owned by Telstra. Police then kept an eye open in the Highgate area, hoping to locate the vehicle. They checked records of infringement notices and discovered that an infringement notice had been issued to the appellant, who was the nominated driver of the vehicle.

128 Some eight days after police had received the details of the registration number officers of the street prostitution team saw the appellant's vehicle parked and unoccupied in the Highgate area. They kept watch on it and observed a man approached the vehicle, get in it and drive away. They followed and stopped the vehicle. The driver was the appellant. The vehicle was searched. A replica handgun was found in the glove-box and in the well of the driver's door a mocked-up police identification was found, coupled with a real Western Australian Police badge.

129 The vehicle was then towed to a police garage. A doona cover was taken from the boot of the vehicle. It was analysed and DNA analysis revealed cellular material on it consistent with that of P's DNA. P then identified the appellant from a photoboard.

The prosecution and defence opening statements

130 In opening the prosecution case, the prosecutor made reference to the definition of 'consent' contained within s 319(2)(a) of the Criminal Code. The prosecution case was put in this way:

We say that in each case the accused's statements to the complainant that he was a police officer, coupled with his prior acts in relation to each complainant and his demand to be provided the service, at least at a discount, took away the free and voluntary nature of whatever consent the complainants gave and you will hear from each of them that they would not have agreed to perform those acts upon the accused had it not been for those acts and statements.

Those acts, we say, constituted threats and intimidation so as to make the acts done not without the free will of the complainant - not with the free will of the complainant.

131 Senior counsel representing the appellant at trial (Mr T F Percy QC), made an opening statement to the jury in which he stated that there was no dispute that the appellant had sexual intercourse and performed the alleged sexual acts with the two complainants. Counsel said that it would not be in issue that the appellant met with both P and T on separate occasions as alleged and that he paid them for oral and vaginal sex. It was indicated that he would say that he paid both of them for their services and prior to the sexual acts agreed upon. It was said that he would testify that he paid the going rate at the time and that he had sex with each of them without any threat or intimidation on his part, so that the sexual penetration in each case was with consent.

132 It was admitted that the appellant owned a Western Australian identification police badge, but it was said that the badge had not been acquired or used for any sinister or fraudulent motive, and was meant as a joke. He admitted to foolishly showing the badge to P at International 300 and it was claimed that on no subsequent occasion had he shown the badge to either of P or T. It was conceded that he may have given the appearance to the complainants of being a police officer and that he did nothing to dispel that idea from their mind if they had formed that impression. It was said, however, that he had never suggested to either complainant that he was a police officer with a view to obtaining a discount or free sexual services from them. His contention was that they consented and that he, at all times, believed that they consented to the sexual acts which occurred.

133 The appellant gave evidence that, during 2002, he purchased an obsolete Western Australian Police hat badge through the Internet. He said that he thought it would make 'a novelty police identification' and that he would use it when fooling around.

134 The appellant said that, because of difficulties with his girlfriend which had been caused by a condition of sleep apnoea from which he suffered, sexual relations between himself and his girlfriend had more or less ceased. This led to him seeing prostitutes. He did visit International 300 in Pier Street, East Perth, in September 2003 and he did there have sexual relations with P. He agreed that his fake police badge had fallen from his pocket on that occasion, but said that it was before taking a shower, not after. P had said to him, 'You're a police officer' and he had agreed that he was.

135 The appellant said that, on 3 March 2004, he went to Highgate to pick up a street-walker. He said that he picked up P, who had been walking on Bulwer Street. She recognised him from the International 300. They drove away and, shortly afterwards, P nominated $150 as her price. The appellant said that he considered this high and there was some negotiation in which he counter-offered $100. He said that, in the end, agreement was reached at a price of $120. He denied that he had used any 'bargaining tool' and denied that he had said words to the effect, 'You'd better bring your price down or else'. He denied that he had shown the police badge. He said that, after withdrawing money from an ATM at Dog Swamp shopping centre, he had given money to P and that they had then gone to Herdsman Lake, where a blanket or doona cover was taken from the back of the vehicle and the sexual acts were performed on it. He said there was never any suggestion on P's part that those acts would have cost more than they did.

136 The appellant said that he dropped P off in Charles Street. He denied that he paid her only $100 and said that he had paid $120. He denied that he had made any offer to help her out in relation to the police. He agreed that P's mobile number was either asked for or offered He denied ringing the number and finding that it was a false number. He denied P's testimony that he was then given the correct number.

137 The appellant admitted that he did ring P a week after the events, but he denied that, on that occasion, he had said anything about being a police officer. The appellant admitted that he had seen P in Lincoln Street on a later occasion and that she had got into his vehicle. He said that there was then discussion about her price for sexual services and that she demanded $130, but that he had refused to pay it and that he dropped her back at Lincoln Street. He denied that she had recognised him and got straight out of the vehicle.

138 The appellant admitted that he picked up T. He said that this was on 2 May 2004. It was a Sunday and it was during the day. She was outside the Hyde Park Hotel and was clearly a sex worker. He drove past her, did a U-turn and parked across the road from where she was standing. She came across the road and approached his vehicle. She asked if he was looking for a girl and he said that he was. She asked if he was a 'cop' and he said he was not. He claimed that she said, 'There's a guy that looks like a cop that drives a red car around here'.

139 The appellant said that T got into the vehicle and that they went to a place she nominated in Maylands. On the way, she mentioned a price of $100 for oral and vaginal sex. This was a 'full service'. He said he negotiated with her, but did not mention, at any time, that he was a police officer. He said he made a counter-offer of $80 and she accepted that. He stopped at an ATM, withdrew money and gave her the $80. He denied her testimony that she was paid nothing for her services. He denied that he said to her, at any stage, that she would be in trouble or that he was a police officer. He said that he did drive to a carpark in Maylands, but he did not like the look of the area and they went to the East Perth industrial area, where they went to an alleyway. This was not in the vehicle, but up against a wall. She was then taken back to the Hyde Park Hotel area and dropped off. He said that he did not see T drop any of the contents of her handbag, but that she walked away from the vehicle.

140 The appellant admitted that, about two weeks after this incident, he saw somebody in a vehicle who looked like T. He denied that there was any threatening gesture made to him and denied, in particular, that the vehicle pulled up alongside him and that T had yelled out words to the effect, 'You're dead'.

The trial judge's directions to the jury and the issue of 'consent' - ground 5

141 It is convenient to deal first with ground 5 of the grounds of appeal, which contends that, on the evidence, there was no absence of consent as defined by the Criminal Code.

142 The trial judge told the jury that, as he saw it, the issue in the case was whether consent was freely and voluntarily given by the complainants in relation to the acts which constituted counts 1 to 5 on the indictment. He said:

So the question that you will focus on, I would have thought, in this case was whether there was a consent freely and voluntarily given because, as we have heard, there was agreement to do certain things as a result of a discussion. It's a question of what brought about that agreement.

...

In each count you will not have any difficulty with the proposition that there was a sexual penetration of the complainant having regard to what's been said to you on the evidence. The prosecution has said to you that in each case there was no free and voluntary consent. Ms Forrester told you in her opening speech that Mr Michael's statements to the effect that he was a police officer along with what he did and said to each of the complainants rendered their consent, in each case not a true and voluntary consent.

They [the complainants] say that they only provided those services to him because he pretended to them that he was a police officer and by reason of what he said to them in that context and that they would not have provided those services to him for no fee or at a discount if they had known that, in truth, he was not a police officer.

143 The trial judge pointed out to the jury that the prosecution case was that the consent of each complainant was obtained in circumstances where there was no consent freely and voluntarily given. He reviewed the evidence and said:

Now, to use fraudulent means to obtain something is to use deceit. The complainants say that they were deceived by Mr Michael into believing that he was a police officer. The state says that he acted dishonestly in that regard.

A definition of 'deceit' was given and nothing turns on it.

144 The trial judge then referred to the question of threats. He said:

The state has spoken of threat and intimidation. If there was a threat made, then it was on the evidence more in the nature of an implicit rather than express threat based on the relationship that apparently exists, according to the evidence that we've heard, between sex workers and police officers.

The latter, of course, had the power of arrest, prosecution, and the ability to issue move-on notices. Under the Prostitution Act 2000, an act of our state parliament, it is an offence both to seek a person to act as a prostitute and to seek a client for a prostitute. The police have the responsibility of enforcing the provisions of that act. As you have heard, there is within the police service a dedicated team for that purpose I think called the street prosecution (sic) squad or team or something along those lines.

The use of the words 'or else' if they were used might constitute a threat in the context of the pretence of being a police officer.

145 The final direction on the issue of consent embraced all aspects of the definition. The trial judge said:

[I]t's for the state to prove that the consent of the complainants to the acts complained of was not given freely and voluntarily.

It may do so by proving that the consent of the complainant in question was obtained by force, threat, intimidation, deceit or any fraudulent means. If you are satisfied beyond reasonable doubt that the consent of the complainant in question was obtained by any one of these factors, then her consent would not be a consent freely and voluntarily given. Of course there has been no mention of force in this case, and that effectively can be excluded.

146 Section 319(2)(a) of the Criminal Code defines 'consent' for the purposes of sexual offences. It is in the following terms:

'consent' means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or by fraudulent means.

147 The origins of s 319(2)(a) are to be found in the former s 324G of the Criminal Code, introduced in consequence of substantial changes to the law relating to sexual offences, which were brought about by the Acts Amendment (Sexual Assault) Act 1985 (WA). Prior to this time, there was no statutory definition of 'consent' for the purposes of sexual cases. Indeed, there was no offence of sexual assault. The offence now known as sexual penetration without consent was known as rape.

148 The definition of 'rape' was, prior to 1985, contained within s 347 of the Criminal Code and it was 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 personating her husband, is guilty of a crime, which is called rape.

149 It can be seen that the definition of 'rape' incorporated the words 'threats or intimidation of any kind', which are similarly used in the definition of 'consent' contained within s 319(2)(a) of the Criminal Code.

150 In Holman v The Queen [1970] WAR 2, Jackson CJ (with whom Burt J appears to have agreed) criticised a trial judge's use of the words 'complete willingness' and 'completely willing consent', pointing out that the adjective 'willing' was misleading. Jackson CJ (at 6) thought that the trial judge, when using the phrase 'willing consent' had been seeking to distinguish between a consent obtained by threats or by fear and one which was not so obtained. Nevertheless, he thought it a misdirection to use the words he did.

But the adjective 'willing' is apt to convey a very different meaning. The Concise Oxford Dictionary defines it as 'not reluctant, cheerfully ready', terms which when applied to 'consent' in relation to rape could be positively misleading. The further use of the phrases 'complete willingness' and 'a completely willing consent' emphasizes, in my view, a concept which is not in any way justified by the statutory definition, which is simply intercourse 'without her consent'. A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape.

152 Under this formulation, the appellant would be unlikely to have been convicted of the offences alleged against the complainants. Their consent would have been reluctant and grudging, but arguably they would have consciously permitted the acts of intercourse in question and, thus, there would have been consent.

Although the jury would have been most unlikely to have concluded that the learned trial judge meant by 'willing consent' or even 'completely willing consent' a 'cheerfully eager consent', they could quite well have thought that 'a reluctant submission' induced by a long persuasion was not a 'completely willing consent', even although they were not satisfied that the consent or submission had been obtained by force or induced by threats or fear.

154 The provisions of s 324G of the Criminal Code, introduced into the Criminal Code by the Acts Amendment (Sexual Assault) Act 1985, for the first time defined 'consent'. It was defined as meaning:

... a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.

This definition is in almost exactly the same words as those contained within s 319(2)(a) of the Criminal Code. There are slight variations, including deletion in s 319(2)(a) of the word 'limiting' and substitution of the word 'deceit' for 'deception'.

155 The definition contained in s 324G followed Mr Michael Murray QC's review of the Criminal Code in 'The Criminal Code: A General Review (Perth 1983)', known as 'The Murray Report'. At vol 1, page 220, Mr Murray wrote:

There should be a general definition in the Criminal Code of the meaning of the term 'consent' where that is used and there should not merely be specific reference to some of the more common problem areas only in relation to the offence of rape, as is now the situation.

In that regard there are deficiencies in the provision as it defines consent. It is illogical it seems to me to say that a consent is obtained at all where acquiescence is gained by threats or fear or intimidation, or any of the other matters mentioned in the section. Those occurrences are events which logically mean that an acquiescence, which is not true consent, has been obtained. The definition of consent should emphasise that what the law is interested in is a free and voluntary consent given without any form of pressure.

Also, for example, the definition makes it clear that the only types of fraud recognised as vitiating consent are those involving the identity of a person as the husband of a married woman or as to the nature of the act of intercourse itself. There are other types of fraud which should, but have been held not to, vitiate consent so as to constitute the offence of rape and I refer in this regard for example, to the High Court decision of Papadimitropoulos [1957] HCA 74; (1957) 98 CLR 249, 261 where the fraud concerned was as to the legality of the act because there were fraudulent representations as to the nature of a ceremony which had been performed which was in fact a bogus wedding ceremony. That clearly affected the question of consent to intercourse because the woman concerned clearly consented on the basis that she was married to the accused when in fact that was not so.

I have therefore devised a definition to be inserted in the general definition section, Section 1(1) and that is the plan which was followed in the Tasmanian Criminal Code. The definition is meant to clearly emphasise the need for a free and voluntary consent and to cover some of the difficulties which have arisen previously.

156 When the 1985 amendment to the Criminal Code was introduced, Mrs Beggs (Member for Whitford) said in the Legislative Assembly (speaking for the Premier) on 3 September 1985 (Hansard, 3 September 1985, page 699)

In the course of the last election campaign, the Government made the following election commitment -

Acts of violence against women are increasing at an alarming rate in our community; a problem which Governments have ignored.

LABOR WILL: Enact tougher more effective laws against rape, sexual assault, and other forms of violence against women.

This Bill proposed to give effect to the Government's election commitment.

Reform of laws in respect of rape and sexual assault have been advocated by concerned community groups in Western Australia for some time.

The present definition of the offences of rape and indecent assault were enacted over 70 years ago, and are based on legal principles established in the last century. Since that time, great changes have occurred in the position of women in our society as they progress towards great equality. Attitudes to women which would have been acceptable then are no longer acceptable today.

The definition of consent is tightened to ensure that consent can only be freely and voluntarily given. It is expressly provided that a failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.

This, together with the restricted definition of consent, will ensure that consent cannot be freely and voluntarily given if it is obtained by force or threat.

158 In Ibbs v The Queen [1988] WAR 91, Burt CJ said of Jackson CJ's formulation of 'consent' in Holman v The Queen at 93:

I should add that if not positively wrong, it would be highly dangerous for a jury now to be told that for the purposes of the new offence of sexual penetration without consent: 'A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits [emphasis mine] it, providing her permission is not obtained by force, threats, fear or fraud, it is not' sexual penetration without consent: see Holman v The Queen [1970] WAR 2 at 6, per Jackson CJ. The recent amendment to the Criminal Code has now made it clear that the consent which is required is to be 'freely and voluntarily given'. Whether that be the fact or not is of course entirely a question for the jury but for myself I think it would now be a misdirection and a serious misdirection to tell the jury that as a matter of law the consent as given would be of that quality notwithstanding the fact, if it be so found, that it was 'hesitant, reluctant, grudging or tearful'. It would be a misdirection to tell the jury that 'if she consciously permits it' it must as a matter of law be held that she had 'freely and voluntarily given' her consent to it. On the contrary I would find it difficult to accept that a consent of that kind was 'freely and voluntarily' given. It is, as I have said, a jury question and juries should now be directed in the terms of the definition and defence counsel in addressing the jury should in future be restrained from formulating the question so as to convey to them the idea that consent 'freely and voluntarily given' is the same thing as 'a reluctant submission' see Nevile J in _Holman'_s case (supra) at 10.

It is true that the expression 'free and voluntary consent' does not sit too readily with the dictum of Jackson CJ, in Holman v The Queen [1970] WAR 2 at 6 when he said:

'A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape.'

A hesitant, reluctant, grudging or tearful, permission may in the circumstances in which the permission is given not amount to a free and voluntary consent. His Honour's dictum however must be understood in the passage in which it appears since it occurs after he discussed the trial judge's directions to the jury that the consent must be 'willing consent', seeking to distinguish between a consent which is obtained by threats or by fear and one which is not so obtained. As Jackson CJ pointed out the adjective 'willing' is apt to convey a very different meaning since a dictionary meaning defines it as 'not reluctant, cheerfully ready', terms which when applied to 'consent' in relation to rape could be positively misleading. With respect I think that Jackson CJ's dictum should now read 'A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she freely and voluntarily consents it is not sexual assault'. However I think it best that a trial judge not address the jury in those terms.

160 The result is that s 324G, as it then was, and s 319(2)(a), as it now is, are to be read as significantly modifying the common law in relation to consent. Thus, Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249 contains a much narrower definition of 'consent'. At 261 the court (Dixon CJ, McTiernan, Webb, Kitto & Taylor JJ) said:

[R]ape 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 if comprehended and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.

161 The extended definition of 'consent' contained within s 319(2)(a) of the Criminal Code means that the inducing causes of consent can now destroy the reality of consent: if a complainant consents to sexual intercourse in circumstances in which she perceives what is about to take place, understands the identity of the man in question and the character of what he is doing, there can, nevertheless, be an absence of free and voluntarily consent if that consent is obtained by threats, intimidation, or deceit (being the aspects relevant to this case). They are the inducing causes.

Application of s 319(2)(a) to the present case

162 Translated to the present case, each of the complainants understood who the appellant was in the sense that they knew him to be a customer, each knew what was about to take place and each understood the character of what the appellant was doing. That is, they, and each of them, understood that they were engaging in sexual acts with a person whom they understood to be a customer. Those acts, they were prepared to perform for reward and, in the ordinary course of events, they would have given free and voluntary consent.

163 However, in the present case, their allegation was that, although they consented to what took place, they only did so because of a combination of threats, intimidation and deceit. Neither would have engaged in the sexual acts either for a reduced rate (P) or no fee at all (T) other than for the fact that the appellant deceived them by representing that he was a police officer; impliedly threatened them in the sense that they thought that they would be in trouble if they did not go along with what was demanded of them and they were intimidated into doing what they did because of the representations that had been made.

164 Whilst at common law the appellant may not, on the facts alleged against him, have been guilty of the offence of rape, under the extended definition of 'consent' contained within s 319(2)(a), the reality of 'consent' was, in this case, destroyed by the inducements which the complainants contended were made to them.

165 It may be that the definition contained within s 319(2)(a) means that what might formerly not have constituted the offence of rape, now does constitute the offence of sexual penetration without consent. That is a direct consequence of the statutory formulation of a definition of 'consent'. It marks a dramatic variation from the provisions of the common law.

166 This conclusion accords with the legislative intent of the amending provisions relating to sexual offences, of which the definition in s 319(2)(a) is part.

167 The process of amendment of the Western Australian Criminal Code means that it and the Queensland Criminal Code, which were previously very similar, now differ in marked respects. Different amendments have been made to both codes, particularly in the area of sexual offences.

168 In R v BAS [2005] QCA 97, the Court of Appeal of the Supreme Court of Queensland (Davies, McPherson JJA and Fryberg J) gave consideration to the meaning of 'consent' within the extended definition of 'consent' contained within s 348 of the Queensland Criminal Code. It is a different definition of 'consent' from that contained in s 319(2)(a) of the Western Australian Criminal Code . In the Queensland code, 'consent' means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. A person's consent to an act is not freely and voluntarily given if it is obtained in certain circumstances. One of those is by false and fraudulent representations about the nature or purpose of the act, and it was this aspect of the definition which was under review in R v BAS.

169 The issue was whether consent was obtained by fraud in that the accused person had allegedly held himself out to be a person who was performing sexual acts for genuine therapeutic reasons. The prosecution case was that the accused was lying when he did that and, thus, deceiving the complainants. The case for the prosecution was that the accused person was guilty of the various offences alleged because, in each case, consent was vitiated or obtained by fraud. Consent obtained by fraud (false and fraudulent representation that the purpose of the conduct was therapeutic) was relied on to mean that consent was not freely and voluntarily given and therefore not consent within the meaning of s 349 of the Queensland Criminal Code.

170 Fryberg J (with whom Davies JA agreed) at [87] made reference to the purpose of the amendments of the Criminal Code in 2000:

The definition of consent in s 348 has some unique features. It was inserted in 2000 after the report of the Task Force on Women and the Criminal Code was tabled in Parliament. The objective of the amendment bill was to amend the Criminal Code and certain other legislation in accordance with the recommendations of the Task Force. The amendment implemented (among others) a recommendation of the Task Force that the list of circumstances vitiating consent be enlarged by the addition of a false and fraudulent representation as to the purpose of the act.. It is not clear whether under s 348(2)(e) an act may have a purpose distinct from the purpose of the actor; but in the present case that problem does not arise. The purposes of the appellant's acts must have been his purposes in performing them. More importantly, the amendment in 2000 changed the effect of fraud (and other 'vitiating' factors) in the context of rape. Under the amended provisions, consent is given an artificial definition. The presence of one of the vitiating factors prevents what would otherwise be consent. from having the qualities necessary to satisfy that definition.

There are some structural similarities between the definition of assault in s 245 of the Code and the definition of rape as it stood until 2000. Relevantly, the terms of the definition are satisfied if the act constituting the alleged assault occurred either without the consent of the person assaulted or with that consent if it was obtained by fraud. The effect of fraud is not to negate the existence of consent, but to render its existence irrelevant..

172 These passages serve to highlight the fact that amendments in relation to sexual offences in the Criminal Code of Queensland, as with amendments to the Criminal Code of Western Australia in the same area, have had a profound effect. The amendments have changed the effect of fraud and other vitiating factors in the context of rape. The effect of fraud is no longer to negate the existence of consent, but to 'render its existence irrelevant'.

173 In the same way, the definition of 'consent' within s 319(2)(a) of the Criminal Code (WA) means that by statute, whether there be consent in the popular understanding of the word or not, there will not be consent to sexual acts within the meaning of s 319(2)(a) itself if consent is given, but it is obtained by force, threat, intimidation, deceit or any fraudulent means. Such consent is not freely and voluntarily given, whether it be consent in its popular conception or not.

174 In other Australian States there have also been extended definitions of 'consent': Crimes Act 1900 (NSW), s 61HA; Crimes Act 1958 (Vic), ss 36, 37AAA and 57; Criminal Code 1899 (Qld), s 348; Criminal Code Act 1924 (Tas), s 2A; Criminal Code (NT), s 192; Crimes Act 1900 (ACT), s 67. It is unnecessary to analyse those provisions, as none are in the same terms as s 319(2)(a).

175 In England, the view still prevails that if a prostitute consents to sexual intercourse with a client, the reality of that consent is not destroyed by being induced by the false pretence of an intention to pay for the services when, in fact, there was no intention to pay and no payment was made: R v Linekar [1994] EWCA Crim 2; [1995] QB 250 .

176 When R v Linekar was decided, the definition of 'rape' was contained in s 1 of the Sexual Offences Act 1956 (UK) in the following terms:

A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.

177 While the definition of 'consent' has since been extended, it remains narrower than the definition in the Western Australian Criminal Code (see Sexual Offences Act 2003 (UK) s 74, s 75 and s 76). In England, the authority of Papadimitropoulos v The Queen is still relied upon (see R v Linekar at 259 - 260; Sexual Offences Act 2003 (UK) s 76(2); and R v Jheeta [2007] EWCA Crim 1699 at [27]).

178 In Rape: When Does Fraud Vitiate Consent (1995) 25 University of Western Australia Law Review 334, Mr G Syrota argues that, even applying the definition of 'consent' contained in s 319(2)(a) of the Criminal Code, Linekar could not have been convicted under s 325 of the Western Australian Criminal Code. The author argues against an 'artificially wide interpretation' of s 325 (page 343) and suggests that, because the accused could be adequately dealt with under the general fraud provision of the Criminal Code (s 409), this should tell against such a wide interpretation. The general thesis of the article is that 'the complicated definition of "consent" in s 319(2)(a) does not significantly alter the law from what it was previously understood to be in this State' (page 344). For the reasons I have previously set out, I disagree. On any view of it, the extended definition of 'consent' was introduced into the Criminal Code to alter the law as it previously stood. Burt CJ makes this clear in Ibbs v The Queen. See also Oppression, Fraud and Consent in Sexual Offences Neil Morgan (1996) 26 University of Western Australia Law Review 223, where it is argued that, in the wake of reforms to the law of sexual offences in Western Australia, different principles should apply to intimidation on the one hand, and fraud on the other in the context of vitiating consent. It is perhaps sufficient to say that the present case is not concerned with fraud. Although I have placed some emphasis on the judgment of Fryberg J in R v BAS (a fraud case), it is only for the purpose of pointing out how significantly the extended definition of 'consent' has rendered consent irrelevant in some circumstances. Such circumstances will be where consent has been vitiated by a combination of threats, intimidation and deceit. That is the present case.

179 I am of the opinion that, in the present case, accepting the evidence of the two complainants, there was a lack of consent on the part of each. That was because consent had not been freely and voluntarily given. The consent was not freely and voluntarily given because it was obtained by a combination of deceit (representation by the appellant that he was a police officer), threats and intimidation.

180 The threats were a little different in each case. In the case of P, the threat was more direct than it was in the case of T. The allegation was that the appellant had said, 'Well, I am a policeman' and, after showing his badge, he had said, 'So you should discount your services - or else'. This threat was taken by the complainant to mean that, unless she discounted her services, the appellant could make trouble for her. That trouble could be in the form of her arrest, or in the form of a 'move on' notice within the meaning of s 24 of the Prostitution Act 2000.

181 In the case of T, she believed that the appellant was a policeman. She had actually received a move on notice in the past and she was acutely aware of the trouble that she could get into if the police chose to arrest her or give her a move on notice. She understood that she could be arrested because her conduct was illegal. T said that the appellant told her that he was a police officer and she was to perform the services so she would not get into trouble. He wanted the services without payment. She did not wish to provide those services without payment and would not otherwise have agreed to do so without being paid. She understood the words 'big trouble' to mean that, because she had always had a lot of trouble with the police, who were always trying to pick her up and arrest her, she did not need that sort of trouble. According to her, she was a known drug-user. She understood that she could have been arrested or charged.

182 P consented to the sexual acts because of deceit and because of the threat and/or intimidation offered by the appellant. She was paid, but she was paid less than she wanted and she would not ordinarily have agreed to sex on those terms. She would not have consented to sex for $100, had it not been for the deceit, threats and/or intimidation. T consented to the sexual acts without payment by reason of the deceit, threats and/or intimidation. She gave evidence that she would not ordinarily have consented to the sexual acts without payment. She only did so because of the combination of deceit, threats and intimidation offered by the appellant.

183 I am therefore of the opinion that it was open to the jury to convict the appellant in relation to all counts on the indictment if they accepted the testimony of the complainants. Their consent to sexual acts was, on the evidence, induced by a combination of threats, intimidation and deceit and, that being so, it was not a free and voluntarily consent in either case.

184 It follows that, in my opinion, there is no substance in ground 5 of the grounds of appeal. I would grant leave to appeal on ground 5, but dismiss the appeal the appeal on that ground.

185 This ground contends that the trial judge erred in failing to restrict the prosecution case to an allegation of either threats or, alternatively, deceit or fraud as the vitiating factor relating to the complainants' consent.

186 I have already quoted the trial judge's direction to the jury in which the jury was told that the State might prove that consent to the sexual acts on the part of each complainant was not given freely and voluntarily if that consent was obtained by force, threat, intimidation, deceit, or any fraudulent means. The trial judge said that, if the jury was satisfied beyond reasonable doubt, the consent of either complainant was obtained by any one of these factors (my emphasis), then her consent would not be a consent freely and voluntarily given. His Honour did exclude force, because it was never suggested that force had any relevance to the case.

187 In my opinion, this direction was correct. As I have pointed out, the issues of deceit, threat and intimidation were all closely related. The appellant was alleged to have deceived the complainants into thinking that he was a police officer. He was alleged to have threatened each and by threatening them to have intimidated them into performing sexual acts with him - in one instance for a reduced amount and in another for no fee at all.

188 The prosecutor did open the case on the basis that the appellant had made threats and intimidated the two complainants to do the acts they did without their free will and, in that sense, made no immediate reference to the issue of deceit. However, the prosecutor made it clear that, in each case, the appellant had allegedly said that he was a police officer when he was not, and I have already quoted a portion of the opening in which the prosecutor said that the deceit 'coupled with' his threats and intimidation constituted conduct which took away from a free and voluntary consent.

189 This being so, it seems to me that it was open to the trial judge to direct the jury as he did. Indeed, it was necessary that the trial judge direct the jury that, on all the evidence, if the jury was satisfied beyond reasonable doubt that consent was obtained by any one of the factors mentioned, then it would not be a consent freely and voluntarily given.

190 I can find no basis for a suggestion that the jury would each need to be satisfied beyond reasonable doubt that at least one of the vitiating factors was present before a verdict of guilty would be open. The question was whether, by a combination of deceit, threats and intimidation the consent given was vitiated. It was impossible to separate out deceit from threats/intimidation because the deceit on the part of the appellant that he was a police officer underlay the implicit threat that, if the complainants did not do what he wanted (sex at a discounted price in the case of one and sex free in the case of the other), they would be in trouble. They were, thus, intimidated into consenting to sexual intercourse, but the consent was vitiated by those factors.

191 I do not consider that there is any substance in ground 1.

192 This ground contends that the learned trial judge erred in telling the jury that each of the complainants had recently complained, when they had not.

193 The trial judge's direction to the jury on complaint related to the complaints that each of the complainants had made about the appellant to police. I have already made reference to the circumstances in which each did so. The trial judge related how T later saw the appellant's motor vehicle and got the registration number, which she put into her telephone and later gave to the police. He also referred to how P met up with the appellant in Lincoln Street, Highgate, managed to get his registration number and reported it to the police shortly afterwards.

194 The prosecutor led the circumstances in which the complaints were made to the police from each of the complainants. The content of the complaints was not led. No independent evidence was led from the police officers about what was said.

195 In cross-examination, senior counsel for the appellant put to P that she had made no complaint to the police for a period of approximately three months. She was asked whether, on the occasion she had seen the appellant in Lincoln Street, she had telephoned the police to say that she had seen the person. She said that she had. She said that she had rung the street prostitution team and had spoken to a lady. At a later time, she made a statement.

196 It was also put to P that her report to the police was 'trying to curry some favour with them', or to 'get in their good books'. P responded that she did not try and 'play tricks like that'.

197 T was cross-examined on the basis that, when she told the police about what had occurred, she was 'just trying to buy some collateral with them'. It was put to her that 19 May was the first time that she told a police officer about the matter and it was not until 8 and 10 June that she went back to make statements. T said that, if that was what the documentation showed, it would be correct.

198 It was put to T that she knew she had to co-operate because she had already been to court. It was alleged that she 'wanted to keep in very sweet with the police'. She denied this and said that she was charged and 'nothing was dropped ... in no way was I helped'.

199 The circumstances in which each of the complainants complained to the police about what had occurred was, thus, the subject of examination and cross-examination. A motive for the complaints was put to each of the complainants in cross-examination.

200 It seems to me that it was therefore incumbent upon the trial judge to say something about evidence of complaint. The directions given were in accordance with law and no point is taken about the content of them. What is complained about is that any reference at all was made to complaint evidence, when there were no complaints.

201 However, in my opinion, this ground of appeal misses the point. There were complaints made. The actual content of what was said was not led, but the fact of complaint certainly was. Because it was opened up in cross-examination, it was necessary, in my view, for the trial judge to say something about the basis upon which evidence of complaint is received. This he did, and in a manner in relation to which there can be no objection. I do not consider there is any substance in ground 2.

202 This ground contends that the trial judge erred in failing to give to the jury a direction of the type referred to by the High Court in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. This is commonly known as a 'Crofts direction'. Senior counsel for the appellant sought such a direction at the close of the trial judge's directions, but the trial judge declined to give such a direction.

203 This ground was faintly argued before the court, but it is sufficient to say that, in my view, this is not a case in which a 'Crofts direction' was called for.

204 In Crofts v The Queen, it was pointed out that the decision in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 makes it clear that the purpose of legislation such as s 36BD of the Evidence Act 1906 (WA) (which requires a direction about lack of complaint and/or delay in the making of a complaint) was to reform the balance of jury instruction, not to remove the balance. At 451, Toohey, Gaudron, Gummow and Kirby JJ said:

The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration.

Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness. The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false.

206 There is nothing in these passages to suggest that, in every case, a direction is required that the jury might take into account the fact that each of the complainants delayed in making a complaint to the police.

207 In the circumstances of this case, it clearly took each complainant some time to ascertain the registration number of the vehicle of the appellant. Each case must be approached in the light of its own facts. Appropriate directions need to be formulated to take account of the arguments which are raised in the case. In this instance, senior counsel for the appellant raised the issue of each of the complainants seeking to curry favour with police officers. It was not put that the complainants had delayed making complaints because of any ulterior factor. It appears to have been accepted that it took time for the complainants to get the registration number of the vehicle of the appellant.

208 As Murray J pointed out in Crisafio v The Queen (2003) 27 A Crim R 98, at [40], the decision in Crofts was considered in Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100, where, at 135, Malcolm CJ said that, in this area, 'the interests of justice were best served if each case was approached in the light of its own facts and appropriate directions formulated which took account of the arguments raised by those facts'. In my view, the directions of the trial judge in this case took account of the particular facts of the case and the arguments which had been raised. The directions were more than adequate. I would dismiss ground 3 of the grounds of appeal.

209 This ground contends that the trial judge erred in failing to direct the jury that there was no corroboration of the essential facts in dispute. Again, the ground was only faintly argued before the court.

210 What the trial judge said about corroboration was as follows:

In his closing speech to you, Mr Percy emphasised his suggestion to you that this was, as he put it, a dangerous case, and he said that because - he said each of the two complainants was, again as he put it, highly suspect. He suggested that you might want to look for corroboration of their evidence given his suggestion that they were highly suspect. Corroboration is evidence which tends to support or confirm other evidence.

In this case there is no requirement, as a matter of law, that there be corroboration of either complainant's evidence.

211 The trial judge then went on to give an example of where there might be corroboration. He said whether there was, in fact, corroboration was a matter for the jury. Reference was then made to P giving the appellant a false telephone number and his having rung it. This he had confirmed in his evidence. The trial judge said that this evidence tended to support or confirm P's evidence. He said that there might be other aspects of the appellant's evidence which tended to support or confirm some aspects of the evidence of the complainants, but he did not propose to go into them. The trial judge then reiterated:

Whether you do find that there are other examples of corroboration is a matter for you, but you are not required, as I said, as a matter of law, to look for or find corroboration and you may convict the accused if you are satisfied beyond reasonable doubt on the evidence of either of the complainants, whether it be corroborated or uncorroborated.

212 After the trial judge's directions were given senior counsel for the appellant raised the question whether the telephone call could said to be corroborative in any way. Supplementary directions were given by the trial judge, but there was no further reference to the issue of corroboration.

213 Pursuant to s 50 of the Evidence Act 1906, the trial judge was not required by law or practice to give a corroboration warning to the jury. That section actually requires that a trial judge shall not give a corroboration warning, unless the judge is satisfied that such a warning in justified in the circumstances.

214 In this case, the trial judge determined that no such corroboration warning was required. In my opinion, he was correct to do so. The complaint in ground 4 that a corroboration warning should have been given is not a proper ground of appeal. Wheeler JA made this clear in White v The Queen [2006] WASCA 62, at [68], where her Honour said:

Since grounds of appeal based upon a failure to give a 'full corroboration warning' are common in this Court, and particularly in relation to the evidence of accomplices, it is important to make it clear that such a ground is not a proper ground of appeal. The question for this Court is not whether a direction conforms to what has, at common law, been regarded as an appropriate direction in such a case; nor is it whether, tested against those common law requirements, the direction is 'good enough', even if not entirely conventional. Rather, the question is, having regard to s 50 of the Evidence Act, read in the light of authority relevant to its proper construction, whether there are particular identified circumstances which not only justify, but require, a warning of a particular identified character: Chew v The Queen (1991) 4 WAR 21 at 82 per Murray J (and to similar effect, in a different statutory context, see R v Clark at [73] - [75] per Heydon JA)

215 Wheeler JA, at [60] et seq, set out in detail what s 50 of the Evidence Act 1906 means. Her Honour concluded, at [78]:

The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given.

216 It follows that corroboration warnings are only given in special circumstances. This was not a case in which such circumstances existed. The trial judge's directions in relation to the issue of corroboration were given in response to the submission of senior counsel for the appellant in his closing address to the jury. It was he who raised the word 'corroboration'.

217 On one view of it, the trial judge might have been better off saying nothing about the matter. However, the direction given could not have created any miscarriage of justice. It is doubtful that the example of possible corroboration which was given by the trial judge was, in fact, corroboration, but nothing seems to me to turn on it. The importance was that the trial judge told the jury that the corroboration of the testimony of each of the complainants was not required. This was correct, and, to the extent that the trial judge may have said more than he needed to about the issue of corroboration, there was no miscarriage of justice.

218 In my opinion, there is no substance in any of the grounds of appeal against conviction. I would therefore dismiss that appeal.

219 This is a prosecution appeal against sentence. Leave to appeal on two of the three grounds of appeal was granted on 24 September 2007. The question of leave on ground 2 of the grounds was referred to the court for hearing at the hearing of the appeal.

220 At the hearing, counsel for the appellant conceded that ground 2 was badly formulated and it was not pressed. It is unnecessary to deal with it.

1. The learned sentencing Judge erred in imposing inadequate effective terms for the individual offences of which the Respondent was convicted, having regard to their seriousness.

(i) The complainants were both sex workers in positions of particular vulnerability, even within their profession..

(ii) In the case of each complainant the Respondent made a deliberate decision to deceive both complainants by letting them know that he was a police officer as a precursor to the sexual activity complained of.

(iii) In addition to the deceit identified in (ii), the act of the Respondent in each case amounted to an act of intimidation and thus the offences were not towards the lower end of the scale of seriousness.

(iv) More than a month after the commission of the offences giving rise to counts 1-3, the Respondent committed the offences giving rise to counts 4-5, demonstrating an escalation in the offending behaviour.

1. The learned Judge erred in giving undue weight to the totality principle in making the sentence to be served in relation to count 5 only partially cumulative on the sentence to be served in respect of count 3 with the result that the total term of imprisonment was manifestly inadequate.

(i) The two groups of offences were committed on completely separate occasions over one month apart.

(ii) The two groups of offences were committed against two different and unrelated complainants.

(iii) Having committed the first group of offences, the Respondent not only repeated his intimidatory behaviour, but .escalated it by using it to obtain sexual services without payment.

222 In sentencing the respondent, the trial judge pointed out that the maximum penalty for each of the convictions was 14 years' imprisonment. The facts of the case were recited and accorded with the testimony of each of the complainants. The trial judge concluded from the facts:

There is to a substantial degree amongst street prostitutes a fear of the exercise of the powers conferred on a police officer and no doubt some degree of intimidation on the part of a street prostitute when confronted by a police officer in circumstances where she is or may be breaking the law.

You took advantage of that relationship to gain for yourself the benefit of sex with a prostitute without payment or at a discount. In doing so you achieved their consent to the provision of sexual services by means of your deceit or fraud. Quite clearly, neither wanted to provide their services to a police officer at all, let alone at reduced rates or for no payment at all.

223 The trial judge turned to matters personal to the respondent, pointing out that he was 34 years of age and had come to Western Australia at the age of 12. He was educated at Mount Lawley Senior High School and then enlisted in the army, where he spent seven years and obtained a trade certificate as an electronics technician. After an honourable discharge in 1994, he studied at the Royal Melbourne Institute of Technology and achieved a diploma in electronics engineering. He then returned to Perth and obtained a diploma in management and a business degree from Edith Cowan University. He had been working for some time with the Telstra Corporation.

224 A number of references were tendered to the trial judge in which people who knew the respondent spoke highly of him. He had no prior convictions of relevance. A pre-sentence report indicated that the respondent showed no real remorse for his actions and had little insight into victim empathy. He continued to maintain that he had not used his fake police identification to procured any sexual favours from the complainants.

225 A psychological report indicated that the respondent acknowledged that he had acted wrongly, but not as alleged against him at trial. He contended that he had never tried to intimidate the complainants into doing what they did. He was considered by the psychologist to have a personality disposition relating to a need to impress others and gain approval, and to lack confidence with females. There was no evidence of sexual deviancy and sex offender treatment was not indicated. His risk of reoffending was described as low.

226 The trial judge accepted that the respondent had not made any threats of physical violence and had perpetrated no violence to the complainants. He described the respondent's behaviour as an 'invasion of each complainant's liberty to choose who she might provide her services to ... neither gave a free and voluntarily consent to what they did for you'.

227 The trial judge concluded that the offences were not in the upper range of seriousness of offences of sexual penetration without consent. He took account of the appellant's excellent character.

228 The trial judge noted that, prior to application of the transitional provisions (Sentencing Legislation Amendment and Repeal Act 2003 (WA)), the sentence for a single act of penetration of the vagina with the penis where the victim was over the age of 16 years without regard to mitigating factors was in the range of 6 to 9 years. After application of the transitional provisions, this was 4 to 6 years. I will return to this conclusion.

229 The trial judge considered the dominant sentencing considerations in the case to be punishment and general and specific deterrence. Reference was made to another case which seems to have been of no application. His Honour did, however, conclude that there was a need for general deterrence, in the sense that prostitutes are particularly vulnerable members of the community. He said:

Their work is dangerous because of that vulnerability. So far as your antecedents are concerned they are clearly favourable and they must and will be taken into account.

230 Sentences were then imposed. The sentences imposed on counts 1, 2 and 4 were 20 months' imprisonment in each case. The sentences imposed in relation to counts 3 and 5 were 2 years' imprisonment in each case. The trial judge directed that the sentences for counts 1, 2 and 3 should be served concurrently. The sentences on counts 4 and 5 were directed to be served concurrently, meaning that for 'each group of sentences' the effective terms was 2 years' imprisonment.

231 The trial judge then appreciated that each group of offences represented a discrete offending against a different complainant on a different occasion. In recognition of this, and in the light of the totality principle, the trial judge then allowed a degree of concurrency, so that the sentences imposed on counts 1, 2 and 3 were deemed to have begun on 24 November 2006 and the sentences on counts 4 and 5 were to begin when the appellant had served 10 months of the sentences imposed for counts 1, 2 and 3. The effective sentence was, thus, 2 years 10 months' imprisonment.

232 The appeal against sentence has to be considered in light of the fact that it is a prosecution appeal. Special principles apply to such an appeal. These principles were recently stated by Wheeler and Miller JJA in The State of Western Australia v Walley [2008] WASCA 12, [25] - [26] as follows:

The principles upon which a prosecution appeal against sentence falls to be considered are very well settled and have been stated and re-stated in this court on numerous occasions. It is sufficient to refer to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 where the court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) said:

The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] VICSC 30; [1996] 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King [1936] HCA 40; (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. [15]

There is undoubtedly an element of double jeopardy involved in a prosecution appeal against sentence (R v Grein (1988) 35 A Crim R 76; [1989] WAR 178, 180 (Malcolm CJ citing R v Peterson (1983) 11 A Crim R 164; [1984] WAR 329, 330)) and that factor must be borne carefully in mind when considering any prosecution appeal against sentence.

233 Apart from the special rules that apply to prosecution appeals, the general rules applicable to interference with a discretionary judgment by a sentencing judge are also conveniently stated in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at [15].

The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] VICSC 30; [1996] 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic House v The King [1936] HCA 40; (1936) 55 CLR 499. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

234 Against the background of these decisions, it is necessary to look carefully at the grounds of appeal.

235 This ground contends that the sentencing judge erred in imposing inadequate effective terms for the individual offences of which the respondent was convicted, having regard to their seriousness.

236 The particulars make reference to the particular vulnerability of prostitutes, the particular deceit of the respondent and the repetition of the offences against a second victim within a relatively short period of time.

237 The appellant points out that the learned sentencing judge erred in concluding that the range of appropriate sentences, prior to application of the transitional provisions, was 6 to 9 years' imprisonment for a single act of penile penetration without regard to mitigating factors.

238 This submission is correct. In R v Quartermaine [2000] WASCA 341, Wheeler J, at [16], made it clear that such a range takes account of mitigatory factors:

The maximum penalty prescribed for the offence of sexual penetration without consent in the absence of circumstances of aggravation is 14 years' imprisonment. While there is no 'tariff' for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years: R v Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995 at 9 per Malcolm CJ. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors: Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997 at 8 per Malcolm CJ. I have noted in R v Clark [2000] WASCA 229 factors which will be relevant to an evaluation of the seriousness of the offence (at [12]), and it may be that an evaluation of these factors leads to the view that the appropriate sentence in any case is well in excess of 6 years, while on other and generally less common occasions, it may be that the sentence called for will be less (perhaps even substantially less).

239 It follows that the sentencing judge does appear to have been misled into thinking that the appropriate range of sentences, prior to application of the transitional provisions, was 6 to 9 years' imprisonment without regard to mitigating factors when, in fact, that range was appropriate having regard to mitigating factors. This was an error, and it calls for reconsideration of the sentences imposed, although against the background of the fact that this is a prosecution appeal against sentence.

240 The sentencing judge made reference to the particularly vulnerable position of prostitutes. He did not suggest that, because the complainants were prostitutes, the offences were less serious than might otherwise be the case. In my opinion, the sentencing judge was correct to make no such distinction.

241 There is a suggestion that, in Victoria, a distinction has been made, but close examination of the cases suggests that it is a distinction without a difference. In Attorney-General v Harris (Unreported, VICCA, 11 August 1981) the respondent was convicted of rape and other offences against two prostitutes. Starke J (Crockett and Gray JJ concurring) said:

The first matter that I desire to say in respect of the appeal which was earnestly presented to us by the Solicitor-General is this: the Solicitor-General submitted that it would be unthinkable that this Court or any other court would apply one law for prostitutes and another law for chaste women. With that general submission I entirely agree. That, however, does not mean that the fact that one of the girls was a prostitute and the other had been is an irrelevant consideration. The girl Harper was and the other girl had been engaged in the trade of selling their bodies for gain. Accordingly it seems to me that one of the elements which is taken into account in respect of the crime of rape is not as potent an ingredient in this case as in the case of a chaste woman, and the reason I think that is so is this, that in the case of a chaste woman experience in these courts shows that very often the forcible act of sexual intercourse, while perhaps not harming her physically to any extent at all, very often has a very serious psychiatric effect on the victim. That in the same degree I think cannot be said here. The factor that women are or have been engaging in prostitution is relevant, I think, in this way. It follows, in my opinion, that the forcible sexual act itself would not cause a reaction of revulsion which it might cause in a chaste woman. That, however, is not to say that the other circumstances surrounding the rape may not have had a considerable effect on them. Prostitutes, of course, by their very trade, that is those of them who ply their trade in the streets, are very subject to the crime of rape and, indeed, to murder. Such offences as the recent 'Ripper' offences in England are by no means unknown, and no doubt they walk in fear of those crimes. However, they go into it, they embark upon their trade knowing the dangers which are inherent in it and accepting them, and in those circumstances it seems to me that the crime when committed against prostitutes, at all events in the circumstances of this case, is not as heinous as when committed, say, on a happily married woman living in a flat in the absence of her husband when the miscreant breaks in and commits rape on her.

[O]n closer acquaintanceship with the case it is plain that there were circumstances to enable it properly to be described as unusual, and it was as such that the Judge described it and treated it. Those circumstances stem from the terms of a pre-sentence report and the character and antecedents of each of the two victims.

The former pointed strongly to the probability that the respondent would not offend again and that his background entitled him to a sentence that reflected his entitlement to an opportunity to re-claim himself. The latter revealed the improbability that either victim, whilst conceding she suffered fear, nevertheless suffered little or no sense of shame or defilement ...

Prostitutes, of course, are not by reason of their vocation any the less entitled to receive the protection of the law. The sentence imposed does not in all of the circumstances in my view represent a denial of that protection.

243 In R v Hakopian (Unreported, VICCA, 11 December 1991), Crockett J dealt with the same issue, saying (at 10 - 11):

The judge at the relevant passage in his reasons for sentence said:

'On my assessment on the victim of indecent assault case and lessens the likely psychological effect the forced oral intercourse and is much less a factor in this the gravity of the offences.'

That statement by the judge can be seen in the context in which it occurs to be a reference to the fact that the victim of the assault was a prostitute. Although it was originally alleged in the grounds of appeal that the judge had erred in placing too much weight on the fact that the complainant was a prostitute, that ground was abandoned in the course of argument and it was conceded that the judge was justified in making the comment to which I have just referred and that, generally speaking, he was not in breach of any sentencing principle when he dealt with the matter as he did on the basis that the complainant was a prostitute. It was admitted that the judge correctly applied what this Court had to say in similar circumstances in the case of R v Harris, an unreported decision of the Full Court delivered on 18th August 1981.

Regardless of whether the victim was a prostitute or not, the question is as to whether the offences which were committed upon her were of such a nature as to have caused fear and terror. The judge was mindful of the need to give consideration to that aspect of the matter and immediately after the passage in his reasons for sentence which I have cited he proceeded to say:

'Nevertheless, it would have been a frightening experience for Miss Paul, particularly as you had a knife. It went beyond what prostitutes such as Miss Paul might be prepared to accept as conduct that is part and parcel of their occupation. It would also have been a frightening experience for her to be detained and then driven off in the car against her will in the way that she was.'

In my opinion, the judge was fully justified in reaching those conclusions. But I consider that, having regard to the degree of terror and fright to which the victim was subjected and the effect of the experience upon her, the judge's sentence does not, in fact, reflect the degree of weight that he was required to give those particular considerations.

244 In R v Leary (Unreported, NSWCA, CCA 060254, 8 October 1993), Kirby ACJ (Campbell and James JJ concurring) made some observations about sexual offences upon persons who were prostitutes or sex workers. At 6, his Honour said:

Apparently in the course of argument the sentencing proceedings affecting the co offenders, counsel drew the attention of Judge Court to the decision of the Victorian Court of Criminal Appeal, R v Hakopian, unreported, 11 December 1991. That was an appeal by the Crown against the alleged inadequacy of a sentence imposed upon a person who had performed an unconsensual sexual offence upon a person who was a prostitute or sex worker. In the course of giving the judgment of the Court of Criminal Appeal, Crockett J said: 'The sentencing judge at the relevant passage in his reasons for sentence said: "On my assessment the likely psychological effect on the victim is much less a factor in this case and lessens the gravity of the offence".' And his Honour went on: 'That statement by the judge can be seen in the context of which it occurs to be a reference to the fact that the victim of the assault was a prostitute. The judge was justified in making the comment to which I have just referred and he was not in breach of the sentencing principle when he dealt with the matter as he did on the basis that the complainant was a prostitute.

The judge correctly applied what the court had said in similar circumstances in the case of R v Harris, unreported decision of the Full Court of Victoria, delivered on 19 August 1981.

In the course of his reasons in sentencing Messrs Stratton and Ridout, Judge Court in no uncertain terms rejected the principle in Hakopian. In my view he did so correctly and he rightly said that prostitutes, male or female, were entitled to the same protection of the law as any other citizen. They have their human dignity and their privacy and ought not unconsensually to have that invaded by fellow citizens, and that is what occurred in this case, as the plea of guilty concedes.

I would simply wish to say that in the appeal no suggestion has been put before this court by the Crown or by the applicant that any different principle applied to the protection by the court of the victim who was the complainant in these proceedings I consider the approach that was taken by the parties in these proceedings to be perfectly correct. As Judge Court pointed out it may be that in circumstances where particular victims show particular vulnerability or age, that may be an aggravating circumstance which may lead a court to look more seriously upon an offence of sexual invasion, but such a principle does not warrant the approach which was taken by the Court of Criminal Appeal of Victoria in Harris or Hakopian and it would be a mistake, in my opinion, to believe that that principle would be applied by the Courts of this State or that Hakopian would be followed in this State, if indeed it is still the law in Victoria.

245 These observations were endorsed in the Court of Criminal Appeal of the Supreme Court of New South Wales in R v Villar; R v Zugecic [2004] NSWCCA 302, where Grove J (Simpson and Howie JJ concurring), at [155] said:

I would affirm the principle that the past history of the victim, particularly reference to her having engaged in prostitution (which in this case was minor in the extreme) was irrelevant and that all citizens are entitled to equal protection under the law: R v Leary, unreported NSWCCA 8 October 1993.

246 Whether in Victoria it has really been held that different considerations apply to prostitutes in sexual assault cases is questionable, but if there is such a conclusion to be drawn from the Victorian cases, I would prefer to follow the New South Wales line of authority on the subject.

Conclusion on ground 1 of the sentence appeal

247 It seems to me that the sentencing judge in this case failed to appreciate the gravity of the offences committed against the two complainants. Effective sentences of 2 years' imprisonment in relation to each of the series of offences committed against each of the complainants were, in my opinion, inadequate. The question is whether they were manifestly inadequate in the context of a prosecution appeal against sentence.

248 Prior to application of the transitional provisions, they were sentences of only 3 years in each case. They were well below the range of sentences accepted in R v Quartermaine.

249 There were differences in relation to the circumstances of the offences against each of the complainants. The effective sentence in relation to the second complainant should, in my opinion, have been greater than that imposed in relation to the first. The second complainant performed sexual services without consent and received no payment. The first complainant performed sexual services without consent, but in circumstances in which she was paid something. The respondent should therefore have been sentenced to a greater term on count 5.

250 The sentence imposed on count 3 was inadequate, but in the context of a prosecution appeal, arguably not manifestly inadequate. However, the sentence imposed on count 5 was, on any view, manifestly inadequate. The complainant was threatened by the respondent in circumstances where he was deceitful about his true identity. She believed him to be a police officer and consented to sexual intercourse under threats and intimidation. She was told she had to do so for no reward and she received none. For this offence, a sentence of at least 3 years' imprisonment was called for. As it is a prosecution appeal, 3 years' imprisonment would be appropriate.

251 I would therefore allow ground 1 in part. I would set aside the sentence of 2 years' imprisonment imposed on count 5 and substitute for it a sentence of 3 years.

252 Ground 3 of the grounds of appeal raises the question whether the sentencing judge gave undue weight to the totality principle by ordering partial concurrency. In my opinion, he clearly did. The question was the overall criminality of the offending: Jarvis v The Queen (1998) 20 WAR 201, 206 - 207 (Ipp J). The aggregate sentence had to fairly and justly reflect the total criminality of the appellant's conduct.

253 In my opinion, the order for concurrency did not achieve this outcome. An order for concurrency may have been appropriate if the offences were a 'continuing episode' in the sense that they arose from substantially the same act: Worthington v The State of Western Australia (2005) A Crim R 585, [20] et seq. This was not that case. The offences were separated in time and involved two separate complainants. In these circumstances, the sentences should have been cumulative. The task of the sentencing judge was to impose a 'just and appropriate' aggregate sentence: Atholwood v The Queen [2000] WASCA 76, [73] (Malcolm CJ). To achieve this result, the effective sentences on each of the two groups of offences ought, therefore, in my opinion, to have been made cumulative in effect. Having regard to my view about the sentence imposed on count 5, there should be an effective term of imprisonment of 5 years.

254 I would allow the appeal against sentence on grounds 1 and 3 of the grounds of appeal. I would quash the sentence on count 5 and substitute for it a sentence of 3 years. I would also quash the order for concurrency, and substitute for it an order for accumulation of the sentences on counts 3 and 5. The effective sentence, thus, becomes 5 years' imprisonment. The sentences should be backdated to 24 November 2006, with an order for eligibility for parole, with the result that the respondent would be eligible for parole after serving 3 years.

255 The respondent in this appeal has filed a Notice of Contention in which three bases are put forward for upholding the decision of the sentencing judge. They are:

1. His Honour stated that the Respondent would be required to serve 17 months before becoming eligible for parole.
2. However, the custodial aspect of the sentence imposed by DCJ Eaton before parole eligibility arises is actually longer than

that intended, as 'only the second sentence attracts the one half reduction for eligibility for parole and not the total of both terms'.

...

1. Mr Michael is therefore required to serve 22 months imprisonment before becoming eligible for parole, not 17 months as stated by His Honour.

256 It may be that, under the sentences pronounced by the sentencing judge, the respondent was required to serve a longer period before eligibility for parole than the sentencing judge thought. The difference appears to be 5 months. However, that is an irrelevant consideration for this court: Jarvis v The Queen, 208 (Ipp J), 214 (Murray J); Readhead v The State of Western Australia [2005] WASCA 191, [30] (Roberts-Smith JA); Penny v The State of Western Australia [2006] WASCA 173, [100] (Buss JA). Outstanding (my emphasis) parole days should be taken into account when assessing the overall term of imprisonment to be imposed for offences, but this is a different matter.

257 In the light of the conclusion I have reached on the sentence appeal, the Notice of Contention becomes irrelevant, but I would, in any event, have dismissed it.

258 EM HEENAN AJA: After a trial before Eaton DCJ and a jury in the District Court of Western Australia over four days from 20 to 24 November 2006 the appellant, Alan John Michael, was convicted as charged of five counts of unlawful sexual penetration without consent contrary to s 325 of the Criminal Code (WA).

259 These charges relate to sexual activity with two women, the first, P, on some date between 28 February and 4 March 2004, and the second, T, on some date between 29 April and 8 May 2004. Each of the two women was a street prostitute who had been soliciting for custom in the North Perth/Highgate area and whom the appellant had picked up in his car, engaged in discussion about sexual services to be provided and had then taken to another location where the sexual activity took place.

260 The first three counts related to sexual activity with P involving two acts of fellatio and one of intercourse, all at the one place and following each other closely in time. The fourth and fifth counts related to sexual activity with T involving one act of fellatio and one act of intercourse, again at one (different) location and the second closely following the first.

261 There is no doubt that the alleged sexual activity did take place and the appellant always admitted that it did. He claimed, and it was true, that both of the women agreed to engage in sexual activity with him. The principal issue at the trial was whether those agreements by the two women, in relation to each of the episodes, was 'a consent freely and voluntarily given' (s 319(2)) because, unless the prosecution could prove beyond reasonable doubt that it was not consent freely and voluntarily given, none of the offences could be established.

262 In the manner in which the trial was conducted, and at the hearing of this appeal, no attempt was made to distinguish between the nature of the consent given to each of the first three counts. The efficacy of the consent to that conduct was treated as being the same for each of counts 1, 2 and 3 having regard to the facts established. Similarly, in relation to the separate episode giving rise to the charges in counts 4 and 5, on the question of whether or not free and voluntary consent was given, the issue was treated as being the same in relation to each count.

263 Following his convictions for each of these five charges, the appellant was sentenced to 20 months' imprisonment in respect of each of the counts of fellatio (counts 1, 2 and 4) and 2 years' imprisonment in respect of each of the counts of intercourse (counts 3 and 5). The sentences on counts 1, 2 and 3 were ordered to be served concurrently. The sentences on counts 4 and 5 were also ordered to be served concurrently, but the sentence for count 5 was directed to commence when 10 months of the sentence imposed in relation to count 3 had been served. The initial sentences were backdated to 24 November 2006 and there was an order that the appellant be eligible for parole in respect of all the sentences. The practical effect of this combination of sentences is that the appellant is required to serve 22 months' imprisonment before becoming eligible for parole. There may have been some misunderstanding by the learned trial judge as to the effective duration of the combination of sentences but, in the view which I take, that does not become a material consideration. It did, however, give rise to the notice of contention which will be mentioned later.

264 From these convictions and sentences, two sets of appeals are now before this court. Michael has appealed against each of the convictions and, by notice dated 20 September 2007, has sought an order that the convictions be set aside and that there be a new trial. However, in view of an additional ground of appeal raised at the hearing, it would seem to follow that, if the appeals were successful on that ground, a further question would arise as to whether or not the convictions should simply be quashed or whether they should be set aside and a new trial ordered. That contingency can be put to one side for the moment.

265 In addition, the State of Western Australia has appealed, by leave, against the sentences imposed contending that, in effect, they are manifestly inadequate having regard to the seriousness of the offences committed. The appeal against the sentences imposed was heard immediately following the completion of argument on the appeals against conviction.

266 I have had the advantage of reading in advance the reasons for decision published by Miller JA on these appeals. His Honour's reasons set out in detail the facts leading to these charges and the controversies over the disputed allegations of fact arising at the trial. It is unnecessary, therefore, for me to repeat this detail except to the extent where particular features of it, which I shall mention, appear to have material significance to the issues of consent as they emerged at the trial and were dealt with by the learned trial judge in his Honour's final directions to the jury.

267 Therefore, a short description of these factual issues will suffice at this stage. Michael admitted that he had, on a separate earlier occasion with P, falsely pretended to be a serving police officer. The case for the prosecution in relation to counts 1, 2 and 3 was that, after he had picked up P in his car and while he was negotiating the price for her services - 'the full service' - she was asking for payment of $150 and he was demanding a reduction in price to $100 - he made it known to her that he expected this reduction because he was a police officer. Michael admitted that he was asked to pay $150 for the full service but, thinking this was excessive, demanded a reduction resulting in agreement for the full service to be provided for $100 but he claimed that he did not in any way, by word or gesture, signify that this reduction was being sought because he was a police officer. However, P said in evidence that, during the negotiations over price, he told her that he was the policeman whom she had met before, showed her his (fake) police badge and said 'so you should discount your services or else'. He denied this.

268 The sexual activity followed, the $100 was paid and the woman was eventually dropped off near where she had been picked up. It was the prosecution case that P was frightened of being arrested and charged and only agreed to the reduction in price for a 'full service' from $150 to $100 because she was scared that if she said no she would be arrested.

269 In examination-in-chief, P said that she would not have discounted the price which she quoted to the appellant but for the fact that he said he was a police officer (ts 280). Previously, when describing the negotiations, P said that 'I should discount my services or else, he didn't really say "or else he is going to arrest me", he just said "or else", so then I said "well I'll give you a full service for $100 then" ' (ts 270 - 272). This was against the background where, according to her, she had said to him after getting into the car, 'Don't I know you from somewhere?' and he said 'Yes. I'm the policeman from - and I met you at 300' (ts 270). He went on to say 'Well I'm a policeman' and he showed her his badge at that stage and said 'so you should discount your services or - or else' (ts 270).

270 However, in her cross-examination P answered as follows (ts 332):

He never said to you, 'I am a policeman, you are going to have to do it for free', or anything like that, did he? --- No, he just said to 'discount your services'.

I think there was some bargaining went on and he just tried to beat you down a little bit didn't he? --- Well he did because he said he was a policeman - the policeman from 300.

But he never, ever said he was going to take you in if you didn't discount your fee did he? Anything like that? --- He implied.

He implied, did he? --- Yes he did.

He never said it though, did he? --- No, he didn't actually say in those words.

No. Never, ever said he was going to take you in, arrest you, give you a hard time, anything like that, did he? --- I don't think so.

No, being truthful about this? --- I don't - - I'm pretty sure I don't think so you know?

271 Under cross-examination P admitted that at the time of the alleged offences she had a fairly bad drug habit - she had a heroin habit and was also using a little bit of speed (ts 293) and was spending about $400 per day on drugs and had previous convictions for possession of prohibited drugs (ts 294 - 296).

272 The episode involving the second woman, T, began with Michael picking her up in his car on the street near the Hyde Park Hotel. She said that she asked the appellant whether or not he was 'a cop' and that he said that he was not. They then discussed prices and agreed on $100 for 'a full service'. The appellant then drove the woman to a car park in Maylands. She said that shortly before arriving he said to her that he was a police officer and that she was to perform the services without payment and if not, she would be in big trouble. After that the sexual activity took place without payment. She said (ts 198) 'I don't think I said anything --- I didn't agree but I just didn't say anything'.

273 In relation to this incident, Michael gave evidence that he picked the woman up and she offered to have a sexual encounter involving the full service for $100. He denied that he mentioned at any time that he was a police officer and said that he made a counteroffer of $80 and that she accepted this and that he gave her the cash after withdrawing it from an ATM. He also said that the sexual activity did not occur at the car park in Maylands because, on arrival there, he did not like the look of the area and they went instead to the East Perth industrial area.

274 T gave evidence as a prisoner in custody serving a sentence at Bandyup Women's Prison. She also admitted to being a heroin addict at the time with a habit costing her $500 a day. At the time of giving evidence, she was on the methadone programme. She said that she made about $500 a day from prostitution and, in addition, was drawing $300 a fortnight from Centrelink without disclosing her illegal income.

275 The credit of both these women in relation to allegations which Michael denied was very much in question.

276 The five charges against the appellant were each for the offence of sexual penetration without consent. Section 325 of the Code provides:

A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: section 322(2) or (4), 323 or 324.

and, further, significantly for this appeal, the meaning of 'consent' is defined by s 319(2) of the Code which provides:

For the purposes of this Chapter -

(a) consent means consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;

(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;

(c) a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

277 Plainly, the language of s 319(2)(a) anticipates that a person may become involved in sexual activity to which he or she does not freely and voluntarily consent but to which he or she nevertheless agrees. It expressly acknowledges that a consent may be given which is not free and voluntary because it has been obtained by force, threat, intimidation, deceit or any fraudulent means. In that case, the consent which has been given, because not free and voluntary, is not effective consent and the person who engages in the sexual penetration which follows is guilty of a crime against s 325.

278 In my view, because of the statutory language and indeed the reality of the situations which Parliament has anticipated when enacting this legislation, it would not be correct to say that there had been no consent at all by the person who is sexually penetrated in such circumstances, nor that that person's consent had been 'vitiated' by the force, threat, intimidation, deceit or any fraudulent means, or for that matter, by any other factor which had led to the consent not being free and voluntary. The true meaning of the section appears to be that the consent which is obtained by any of the factors mentioned is not a free and voluntary consent and, that being the case, the person who effects the sexual penetration will have committed the offence established by s 325. Of course, the onus of proving that free and voluntary consent was not given to an act or acts or sexual penetration which nevertheless followed an agreement of sorts by the person penetrated, rests throughout upon the prosecution.

279 The conduct of the appellant Michael, at least as alleged by the prosecution and the two women in the present case, possessed features which rendered it capable of being treated as being threatening, intimidating, deceitful or fraudulent or possessing one or more of those characteristics. This does not mean that the conduct necessarily was threatening, intimidating, deceitful or fraudulent, because whether the prosecution established that the appellant's conduct had any one or more of those features was very much an issue of fact for decision by the jury upon the proper standard of proof.

280 In the present case, there was no suggestion that the consent of either woman was obtained by force, so that aspect of s 319(2) can be excluded from further discussion. However, the prosecution case did involve allegations that the consents of each woman had been obtained by threats - the express or implied threat that the appellant would use his pretended powers as a policeman to arrest them or cause them trouble in a variety of ways. Similarly, the prosecution case also included allegations that the consents obtained were obtained by intimidation, namely, the express or implied menace that, if his demands were not met, the appellant would use his supposed police powers to penalise or make trouble for the woman concerned. Next, and significantly for this appeal, the prosecution case as eventually presented to the jury, and as directed upon by the learned trial judge, involved an allegation that the consent of each woman was obtained by deceit or by fraudulent means, namely, as a result of a knowingly false representation by the appellant to each woman that he was a police officer. Whether that fraudulent misrepresentation or deceit in this context means that the consent given was not free and voluntary is a central and important issue in this appeal.

Factors bearing on effectiveness of consent

281 In a case where there has been sexual penetration by agreement with the person penetrated, and a critical issue is whether or not the consent which was given was a consent freely and voluntarily given, it will usually be important to identify and consider the particular factor or factors by which the actual consent was obtained in order to determine whether or not the prosecution has established that the consent which was given was ineffective. So, for example, if a crime of sexual penetration without consent is alleged in circumstances where the accused person physically assaulted the victim until, in the end, she agreed to submit, proof of the assault and its effect in producing the submission would obviously be necessary and, presumably, would involve a straightforward examination of the facts. Similarly, if the allegation were that agreement to penetration was obtained by the threat of physical violence as, for example, being threatened with a knife, proof of the threats and their effect in leading to the ineffective consent would again be necessary. Inevitably there will be cases where the ineffective consent to the sexual penetration is alleged to be obtained because of multiple factors such as, for example, force involving a limited degree of violence, threats of more severe or different force being applied if the victim did not submit and intimidation by threat of some form of retribution being exacted if the victim did not submit. These features could readily co-exist and combine to obtain an ineffective consent.

282 So it is that, in the present case, there are several features of the appellant's alleged conduct which alone, or in combination, might lead to the conclusion that the consents obtained from these two women to the sexual activity which followed were ineffective. These have already been stated: threats, intimidation, deceit or fraudulent means. Furthermore, these are not mutually exclusive categories and in any particular instance, such as the present, there may be ample potential for the threats, intimidation, deceit and/or fraudulent means to overlap or even, perhaps, to coincide.

283 If the effects of all those features did precisely coincide, it would be unnecessary to examine them separately because the only question would be whether or not, for any one or more of those causes, the consent which emerged was not free and voluntary. However, there may be cases, and this seems to be one, where the effects of those features do not completely coincide either in their nature or their effect and that, although they may overlap, there are parts of one or some of the features which can only operate alone. More particularly, there may be some deceit which, however unlawful and reprehensible, does not result in the consent to penetration being obtained such as, for example, a false assertion that the perpetrator was well-educated or wealthy, in the hope of creating a favourable impression but which was disregarded by the victim as being irrelevant to her. Approaching even closer to the nub of this case, there may be a species of deceit or fraudulent means which is not in law relevant or will not be treated at law as relevant to the consent necessary for the sexual penetration to be lawful.

284 If, therefore, there are some species of deceit or fraudulent means which, because they relate to some other aspect of the relationship between the parties, do not have the result of rendering consent given to sexual activity ineffective, it will become important to decide whether or not any of those species is present in the instant case.

285 Accordingly, in a case where there are several factors present which, depending upon the decision of the jury on the actual facts and the influence of those factors, a consent given may be ineffective but which include an allegation of deceit or some fraudulent means which may or may not render the consent given ineffective, it will be essential for the jury to have an adequate explanation of how the alleged deceit and/or fraudulent means may, or may not, make the consent actually given ineffective. For the jury to have an adequate explanation of this aspect of the case, it will be necessary for the trial judge to direct carefully upon exactly what aspect of the alleged deceit or fraudulent means is alleged to make the consent given ineffective and, equally, if it be the law, how it may not have that effect so that the jury can decide what effect, if any, the particular deceit or fraudulent means had on the consent given in the particular case and, therefore, whether or not the result was that the consent was ineffective.

286 This discussion of the obligation, in a case which generates an obligation to address whether a particular allegation of deceit or fraudulent means makes a consent given to sexual penetration ineffective, obviously proceeds on the assumption that there are some forms of deceit or fraudulent means which will not make a consent to sexual penetration ineffective. That assumption must, at this stage, be treated as being completely contestable because, indeed, it represents the point of departure between the arguments raised for the appellant on the one hand and those for the State on the other on ground 5 of the appeal against conviction.

287 The assumption may also be regarded at this point as all the more tendentious in the light of the language used in the definition of 'consent' by s 319(2)(a) of the Code which, at first blush, may appear to treat any species of deceit or fraudulent means whatever by which consent to sexual penetration is obtained as meaning that that consent is not freely and voluntarily given. Nevertheless, the controversy in this case centres upon a very old dilemma which has remained present in the law relating to unlawful sexual connections, whether in the common law crime of rape or in its other statutory counterparts and their more modern successors such as the crime established by s 325 of the Code.

288 Not unlike the familiar difficulties encountered in many other areas of the law with the concept of causation, the problems presented by identifying factors which may lead to a consent to some form of sexual penetration being given which is not free and voluntary, the question presenting in this appeal also involves difficulties in identifying the limits and remoteness, and therefore the effect, of the features of deceit or fraud in such a context. Like so many other legal principles, this present question cannot be detached from, or understood without, an appreciation of the history which led to the reformulation of the legislation dealing with sexual offences in this State in 1985, 1992, and later. In the not so recent past, there undoubtedly were, and perhaps still are, forms of deceit or fraud which, while possibly involving the commission of some other offence or offences, and undoubtedly being reprehensible, did not have the effect of rendering the consent to sexual activity which followed being ineffective.

289 That distinction has been recognised in many cases of which those cited later are perhaps only some of the more conspicuous examples, but it has also been recognised in a variety of legislation in other states and countries and it was specifically identified by the 15th Report of the Criminal Law Revision Committee on Sexual Offences in England (Cmnd 9213) in 1983 where, in par [2.25] the Committee wrote:

We are, however, concerned about the precision and the distinction that can be drawn between fraud which is sufficient to vitiate consent and other types of fraud.

290 Before setting out the relevant historical background and the judicial and statutory treatment of this problem in several jurisdictions, it is desirable to return to the facts of the present case. Here, at least at the commencement of the trial, the prospect that the consents given by these two women to their sexual penetration by the appellant were ineffective because of deceit or some fraudulent means was not expressly asserted by the prosecution. As the trial developed, however, this perspective of the allegations of fact was introduced and then expanded so that, ultimately, it became a material dimension of the issues of fact upon which the learned trial judge had directed the jury and upon which their verdicts were sought. To appreciate how this happened requires some detail to be given of the progress of the trial.

Introduction of the significance of alleged deceit or fraudulent means at trial

291 In opening the prosecution case to the jury, counsel for the prosecution said, 'Neither of the two women, you will hear, would have performed the sexual acts for the amount the accused paid without the threat that he was a police officer overcoming their free will' (ts 164), and, in relation to counts 1, 2 and 3 and the prostitute P, counsel for the prosecution said, 'The only reason, you will hear, that she agreed to do what the man asked was so that she didn't get arrested and charged' (ts 165). Then, later, when addressing counts 4 and 5 and the prostitute T, counsel for the prosecution said to the jury, 'She was frightened and she didn't want to get arrested, so she agreed and the only reason that she did agree to have sex with him for no fee was because of that threat' (ts 167), and then, again, the prosecutor told the jury (ts 169 and ts 170):

We say that in each case the accused's statements to the complainant that he was a police officer, coupled with his prior acts in relation to each complainant and his demand to be provided the service, at least at a discount, took away the free and voluntary nature of whatever consent the complainants gave and you will hear from each of them that they would not have agreed to perform those acts upon the accused had it not been for those acts and statements.

Those acts, we say, constituted threats and intimidation so as to make the acts done not without the free will of the complainant - not with the free will of the complainant. Now, the accused might claim that if any of those acts were done, claiming to be a police officer, threats of that nature, he didn't intend them to have that effect or considered that they might have such an effect. He might say that the state needs to prove that he didn't have an honest and reasonable mistaken belief.

292 Counsel for the accused, the appellant, availed of the right to make an opening address to the jury under s 143(3)(a) of the Criminal Procedure Act 2004 (WA) before any evidence was adduced and immediately following the opening address of counsel for the prosecution. In doing so, counsel for the appellant said to the jury (ts 174 and ts 175):

In short, it's the defence case that the accused paid to have sex with the complainants for an agreed amount which he paid to them, and he had sex with them without any threat or coercion or any form of deception on his part which would have induced them to consent to those acts; the sexual acts took place by consent; the girls were paid.

They may or may not have been under the mistaken impression that he was a police officer, but what the defence says is this was never critical to the question of consent in any way or at any time. The girls were paid; it's as simple as that. We will say that at the end of the case the evidence will clearly support the proposition that he is entitled to be acquitted.

293 These opening statements were capable of conveying to the jury, and in my view should be regarded at that point as conveying to the jury, that from the prosecution viewpoint, while the accused falsely pretended to be a police officer, the only material effect of that pretence was to convey a threat to each of the girls or to intimidate them and it was these features of threats and/or intimidation which made the consent to the sexual activity which followed ineffective on their parts. This opening by the prosecution certainly referred to the false pretence of being a policeman by the appellant, involving as that did a deceit, but it did not, at least expressly, convey to the jury the idea that that false representation was the factor, or a factor, which made the ensuing consents ineffective. In short, the prosecution case was opened on the basis that the conduct of the accused amounted to threats or intimidation and it was these, and only these features, which made the consents to sexual activity which were given ineffective.

294 Counsel for the accused directly addressed this limited aspect of the prosecution case in the passages already cited but, perhaps anticipating some later expansion in the dimension of the prosecution case, included in his final remarks a reference that no form of deception on the accused's part would have induced them to consent to the sexual activity and that any mistaken impression which the women had was never critical to the question of consent in any way or at any time. This may have been intended to quarantine the significance of the false representations by the accused that he was a police officer in some neutral and non-incriminating backwater but the potential influence upon the jury of these false representations could not be so readily isolated either by the prosecution or by the defence.

295 After the opening addresses by counsel, evidence was taken on the first day from the two women complainants who were each examined and cross-examined, as well as from other witnesses. It soon became clear that the members of the jury were vitally interested in what was the true meaning of consent in the context of the charges laid. On the resumption of the trial on the morning of the second day (ts 325), the learned trial judge acknowledged receiving a note from the jury seeking some explanation of the law which applied. However, because of his Honour's view of the need to proceed with taking evidence, that note was not directly dealt with at that point. His Honour did return to it a little later than morning (ts 365 and 366). When speaking to the jury, his Honour said:

'Please clarify the word consent from a legal aspect and clarify the word consent in the context of the charges'.

Well, I don't propose to give you the full charge, so to speak, about the state of the law and how it applies in its entirety to this case, but I will tell you at this stage that each of the charges - there are five in the indictment, allege that Mr Michael sexually penetrated the complainant without her consent, contrary to a particular section of the Criminal Code found in ch 31 of that Code. The interpretation section at the beginning of that chapter contains the passage:

'For the purposes of this chapter, consent means a consent freely and voluntarily given and without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means'.

Then, omitting some of his Honour's observations, the learned trial judge went on to say:

That's what the Criminal Code tells us about consent. Consent must be, as I said, freely and voluntarily given and it's deemed not to be freely and voluntarily given if it's obtained by force, threat, intimidation or of a fraudulent means. So far as the prosecution case is concerned, the prosecution focuses on, effectively, the last of those phrases 'other fraudulent means'.

296 At that point counsel for the prosecution rose to explain that this was not the case because, when counsel made her opening address, reference was made to 'threat or intimidation'. Then followed this exchange:

Eaton DCJ: Threat or intimidation, okay. All right, but not fraud?

Counsel for the prosecution: Well, I certainly didn't address that particular issue in my opening because - it's perhaps best addressed when we are discussing your Honour's charge but it's certain.

Eaton DCJ: I will withdraw what I said about other fraudulent means.

Counsel for the prosecution: It certainly is the case that the state case is that it was not a free and voluntary consent and that consent, if it was obtained, was obtained by means of one of the things that you set out in the section.

Eaton DCJ: All right, so consent is, as I say, not free and voluntary if it is obtained by force, threat, intimidation, deceit or other fraudulent means. So that's as far as I need to say anything about consent at this stage. You can retire now and we will have you back at midday. Thanks very much.

297 At that stage the jury retired for the morning break and there followed another short interchange between counsel and the learned trial judge which included the following passages (ts 367):

Counsel for the prosecution: No, your Honour, it was, we say, a deceit, but we say that it wasn't the pretence that overcame the complainant. It was the fact that he was saying he was. They are slightly different and I did say in my opening that the acts that we allege constituted threats and intimidation so as to make the acts done not with the consent of the complainant. So that's how I particularised and I am happy to stand by that.

298 Accordingly, the case for the prosecution was that the consents given were ineffective because of express (not implied) threats and intimidation.

299 Counsel for the defence acknowledged the explanation given by the prosecutor and indicated that that would be the basis upon which the defence would run the case, whereupon the learned trial judge said (ts 367):

Eaton DCJ: Yes, threat or intimidation. Yes, you said in your opening statement amongst other things: 'His acts, statements and demands took away the voluntary nature of the consent'. If that's the position, then that's the way it will be approached and that's how I will charge the jury in due course. We will adjourn until midday.

300 Nevertheless, and perhaps inevitably but imperceptibly, as the case progressed, the potential for the false representation itself to become a factor which deprived the consent given by the two women of effectiveness as a free and voluntary consent, intruded. So, in the learned trial judge's direction to the jury (ts 584) his Honour again made reference to the passage in the Criminal Code dealing with consent (s 319(2)(a)), including the words, 'A consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means', without any attempt to discard the concepts of deceit or fraudulent means as being immaterial for the consideration of the jury. This aspect of the case was developed by his Honour in his direction at ts 585, ts 586 and ts 587 in terms which left open the possibility that deceit or fraudulent means made the agreements of the women to allow sexual penetration ineffective. This is no more than an abbreviation of his Honour's direction, designed to focus attention on how the feature of deceit or fraudulent means was in fact left to the jury. In order to appreciate the particular significance of his Honour's directions, it is necessary to consider his Honour's words. At 585 his Honour said:

So the question that you will focus on, I would have thought, in this case was whether there was a consent freely and voluntarily given because, as we have heard, there was agreement to do certain things as a result of a discussion. It's a question of what brought about that agreement. In this case, Mr Percy (counsel for the appellant at trial) has said to you it is very clear that the acts complained of in the indictment did occur as alleged; that is, each of the sexual penetrations occurred as alleged. --- The prosecution has said to you that in each case there was no free and voluntary consent. Ms Forrester (counsel for the prosecution) told you in her opening speech that Mr Michael's statements to the effect that he was a police officer along with what he did and said to each of the complainants rendered their consent, in each case, not a true and voluntary consent.

Again, after further explanation, his Honour said (ts 586):

They [meaning the women] say that they only provided those services to him because he pretended to them that he was a police officer and by reason of what he said to them in that context and that they would not have provided those services for him for no fee or at a discount if they had known that, in truth, he was not a police officer.

301 In these circumstances, it is inevitable that one must conclude that, despite the limited way in which the prosecution had opened the case, and the later exchange between counsel and the trial judge about the focus of the prosecution case being upon threats and intimidation, the jury was expressly directed that any deceit or fraudulent means - express or implied - by which the consent of the women were obtained would render their consents ineffective. Further, there can be no doubt that the only deceit or fraudulent means suggested or proved was that the appellant had falsely pretended to be a police officer.

302 The guilty verdicts returned by the jury on each of the charges do not allow any conclusions to be reached about whether the ineffectiveness of the consents given by the women to the sexual activity, of which the jurors were satisfied, were obtained because of threats, or by intimidation, or by deceit or by any fraudulent means. There can be no avoiding the conclusion that the guilty verdicts were the product of decisions by the jurors that the consents given were ineffective because of the deceit or fraudulent means, either alone or in combination with the added dimensions which those representations implied of threat and/or intimidation. No attempt was made to have the jurors give separate or sequential consideration to each of those alleged features of the case and it is, therefore, not possible to conclude that the verdicts of the jury bespeak satisfaction that the prosecution had proved beyond reasonable doubt that it was only threats and/or intimidation by the appellant which meant that the consents given by the women were ineffective.

303 In the context of this trial, this treatment of the case is also significant from the viewpoint of how the jury did, or might have, resolved issues of fact in the case. As mentioned earlier, the appellant denied making any threats to either of the women and in particular, denied their statements that he had said, to the first, that she should discount her price 'because he was a policeman or else', and to the second, that she would have to do it for free because he was a policeman. He constantly maintained his position that, although he had falsely pretended to P on a previous occasion that he was a police officer, he had not done so on this evening. He denied ever representing to T that he was a police officer. He maintained throughout that he had never threatened either woman in any way with the use or misuse of police powers. In relation to the second episode, he stated (contrary to her evidence) that T had agreed to a reduced price of $80 for the 'full service' which he actually paid to her in cash.

304 As already noted, the credibility of the two women was directly challenged and, having regard to their backgrounds, the lifestyle in which they were engaged, and to their serious drug habits at the time, it would not be at all surprising if the jury had reservations about their credit in relation to the disputed allegations of threats and/or intimidation.

305 The one solid plank in the facts, however, and one which I consider the jury must be taken to have accepted, was that the appellant had previously falsely pretended to P to be a police officer. He had also falsely pretended to be a police officer on a variety of other occasions not involving these women or sexual activity. While this does not inevitably lead to the conclusion, it points strongly to the probability that the jury treated that false representation as having been repeated in his meetings with the two women which led to the sexual activity that occurred. That conclusion could lead to that deceit or fraudulent representation becoming a factor, perhaps not the sole factor, but a material factor, in making the consents given by the women to the ensuing sexual penetrations ineffective. An important question in this appeal and one which, as far as I can see, has to be decided in this State for the first time, is whether such a knowingly false representation in such a setting can make the consents given by the women ineffective.

306 At this point it is necessary to mention the express grounds of appeal relied upon in the appeal against conviction and to explain the late introduction of the fifth ground of appeal for which leave is being sought for the first time.

307 The original grounds of appeal filed by the appellant in support of his application for leave to appeal were dated 12 April 2007 and comprised six separate grounds, some with particulars. However, by the time his application for leave to appeal was heard, the appellant had filed his case on 21 September 2007 and this comprised four grounds of appeal omitting two of the grounds previously advanced. Leave to appeal was granted by order of Wheeler JA on 28 September 2007 upon those four revised grounds.

308 During the hearing of the appeal, and in response to observations made by members of the court, counsel for the appellant sought leave to add a fifth ground of appeal which, after a short adjournment to allow this to be drafted, was formulated and is also set out below. The five grounds therefore argued are:

1. The learned trial Judge erred by failing to restrict the prosecution's case to an allegation of either threats or, alternatively, deceit or fraud as the vitiating factor relating to the Complainant's consent:

1. the prosecution case was that each complainant had agreed to participate in an act of sexual intercourse with the accused but that their participation was not with a consent freely and voluntarily given for the purposes of the definition of consent contained in section 319(2) of the Criminal Code 1913 (WA);
2. the prosecution had opened its case that the complainants' 'consent' had been overborne by threats made by the accused, rather than by deceit or fraudulent means;
3. the prosecution case was left to the jury on the basis that they could in each case find the complainants' consent was vitiated by threats or alternatively, by deceit or fraud on the part of the accused man;
4. the learned trial Judge should have restricted the prosecution to running its case on the basis that the vitiating factor was the alleged threat said to have been made to each complainant by the accused;
5. in failing so to restrict the prosecution case and in leaving to the jury the alternative basis for a conviction, the learned trial Judge was in error.

1. The learned trial Judge erred when he told the jury that each of the complainant's had recently complained of the offences, when they hadn't, such that there was a miscarriage of justice.
2. The learned trial Judge erred in failing to give to the jury a direction of the type referred to by the High Court of Australia in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427:

1. there had been a delay in complaining about the events in question on the part of each of the two complainants, two months in respect to the first complainant P, and four months in relation to the second complainant T;
2. the learned trial Judge was obliged to give to the jury a direction in terms of s 36BD of the Evidence Act 1906 (WA) concerning this delay;
3. the direction should have been balanced by an appropriate direction of the type referred to in Crofts v The Queen to the effect that the delay was a matter that the jury might be entitled to take into account in determining whether the complaints were true or false;
4. in failing to give such a direction, the learned trial Judge was in error.

1. The learned trial Judge erred in law by failing to direct the jury that there was no corroboration of the essential facts in dispute in the case:

1. the essential matter for determination by the jury was whether either complainant had consented to the sexual acts in question for the purposes of the definition of consent in s 319(2) of the Criminal Code 1913 (WA), or whether any consent had been vitiated by threats on the part of the accused or by fraud or deceitful means in that he pretended to be a police officer at the relevant times;
2. there was no evidence to corroborate the assertion on the part of each complainant that they had been deceived by the accused in the manner alleged, nor was there any corroborative evidence that either complainant had been threatened as alleged;
3. the learned trial Judge should have directed the jury that whilst there was no need for corroboration of these aspects of the prosecution case, there was in fact none;
4. the learned trial Judge's failure to do so was an error.

1. Pursuant to s 30(3)(a) of the Criminal Appeals Act 2004 the jury's verdicts should be set aside as they cannot be supported by the evidence;

(a) there was no absence of consent, as defined in the Criminal Code, concerning either complainant.

309 It is immediately apparent, from the first ground, that counsel has employed the term 'vitiated' in referring to the consent given by the two women in the sense that their consents given were nullified because of the circumstances in which they were obtained. I have already observed that, in my view, this is not a desirable usage because it is capable of conveying the fiction that there was, therefore, never any consent at all. The reality of the position is that, in circumstances where consent is given by a person to an act or acts of sexual penetration, because of the circumstances under which the consent was obtained, that consent may not be effective for the purposes of s 325 so rendering the ensuing sexual activity unlawful. This is the language used by the statute and, to my mind, it is also preferable because it avoids any suggestion or temptation to ignore the fact that consent of a sort was given to the activity. Appreciation of the reality of some kind of consent is important because only by addressing the consent which was actually given will it be possible to resolve the critical issue of whether that particular consent was freely and voluntarily given and/or, what is the same question, whether or not it was obtained by any one or more of the features identified in s 319(2) which, if so, would make it ineffective. That in turn directs focus upon what, in the particular facts of the individual case, was the activity to which the consent was given and, equally importantly, whether one or more of the alleged features did in fact result in that particular consent being given.

310 With respect to the first four grounds of appeal, I agree generally with the consideration which has been given to them by Miller JA and which I, respectfully, adopt, subject to my own observations and conclusions relating to ground 5. It follows that it is unnecessary for me to elaborate in these reasons for also concluding that none of grounds 1 to 4 (inclusive) should be upheld.

311 In view of its importance for the determination of this appeal and generally, I would grant leave to introduce and rely on ground 5 of the grounds of appeal as sought by counsel for the appellant.

312 There is some overlap between ground 1 and the new ground 5. Ground 1, as formulated by the appellant, essentially complains that, having regard to the way in which the prosecution case was opened and conducted at the trial, the prosecution should have been confined to a case either that the consents given by the complainants were alleged to be ineffective because of threats alleged to have been made by the appellant, or, alternatively, it should have been confined to a case alleging that the consents obtained were ineffective because of the alleged deceit or fraud of the appellant. The implicit contention in this ground, therefore, is that there were different characteristics in the prosecution case depending upon whether it was put on the basis that the consents given were ineffective because of threats (intimidation is not raised by the ground although it was left to the jury) on the one hand, as contrasted with the case where it was being alleged that the consents given were ineffective because of deceits or other fraudulent means.

313 In my view, it should be accepted that the prosecution case required different explanation and analysis depending upon whether the prosecution alleged that the consents were ineffective because of threats or intimidation, on the one hand, or because of deceit or fraudulent means on the other, or because of a combination of one or more of those features. That that was not done nor the jury directed in this fashion cannot, however, lead to the first ground of appeal being accepted, because the essential point of the ground is that the prosecution should have been confined to one species of allegations rather than two. But the significance of this underlying contention nevertheless needs to be considered under ground 5 of the appeal where I develop these observations further. Ground 1, which I am satisfied should be rejected, nevertheless provides some early glimpse of the considerations relevant to ground 5.

Ground 5 - Effect of deceit or fraud upon consent

314 The long history of the common law in relation to misrepresentations and fraud relating to activities which lead to an otherwise consensual act of intercourse was reviewed by the High Court of Australia in Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249 where the court concluded, unanimously, that where there was no misrepresentation as to the nature or identity of the sexual activity to be undertaken, nor any impersonation by the alleged offender that he was a person with whom the women would agree to have sexual activity - (cases of impersonation of a husband or partner) - there is no fraud, misrepresentation or deception as to the act undertaken which could destroy the consent which had been given to the sexual activity which followed.

315 Papadimitropoulos v The Queen was a very poignant case because, there, the appellant had taken his fiancée to a registry office where he falsely and fraudulently pretended to her that they had undergone a valid marriage ceremony and had become man and wife before he obtained her consent to engage in ensuing sexual intercourse. His conviction for rape was quashed on the basis that though there had been fraud and misrepresentation in the inducements offered by the appellant to engage in sexual activity, there had been no fraud or deception in relation to the identity of the appellant as the person to engage in sexual activity or as to the nature of the activity which was undertaken. In the course of that judgment the court explained how it had never been held that misrepresentation or fraud in relation to inducements which did not conceal the identity of the man, nor misrepresent the nature or purpose of the activity to be engaged in, destroyed consent. The kind of fraud or misrepresentation which did so would be where a man surreptitiously crept into a woman's bed when she believed him to be her husband, or where, through some species of quackery, a man pretended that the activities to be embarked upon were in some way beneficial to the woman's person or health as, for example, the medical charlatan who represented that the intercourse was a necessary part of therapeutic treatment, or the singing teacher who induced a pupil to engage in sexual intercourse by telling her that all that was being done were exercises to improve her breathing. Their Honours said that whatever may have been said about a bigamist, and whatever offences a bigamist may have committed, there was no single case ever recorded of a bigamist being indicted for the rape of a woman whom he had pretended to marry and had then seduced.

316 Papadimitropoulos v The Queen is an authoritative exposition of the common law and of the provisions of the Code States, including Western Australia, relating to consent with regard to the sexual offence of rape as they stood in 1958. The approach taken by the High Court in Papadimitropoulos v The Queen was also followed and applied by the Court of Criminal Appeal in Victoria in R v Mobilio [1991] VicRp 28; [1991] 1 VR 339.

Subsequent history of the rule in Papadimitropoulos v The Queen

317 As to be expected of a decision of such significance, Papadimitropoulos v The Queen has received much subsequent attention, both judicial and academic. In the present case it is submitted by the respondent that s 319(2) of the Code, as amended in 1985 and in 1992, has changed the earlier law. It is necessary to consider how Papadimitropoulos has been applied in other jurisdictions including those where legislative changes later occurred.

318 R v Gallienne [1964] NSWR 919 is a decision of the Court of Criminal Appeal of New South Wales involving a man breaking into the complainant's bedroom at night, fraudulently impersonating her husband and so engaging in an act of sexual intercourse but, when the woman discovered that the accused was not her husband, she broke off and fled for help. The Court of Criminal Appeal upheld a conviction for rape concluding, in accordance with Papadimitropoulos' case that the initial consent obtained by fraudulent impersonation was no effective consent at all. In the principal judgment, Taylor J traced the history of the law relating to consent fraudulently obtained and various statutory modifications of this, including s 66 of the Crimes Act 1900 (NSW), as it then stood. That section provided:

Whosoever, by any false pretences, false representation, or other fraudulent means, or by the use of any intoxicating drug, induces or procures, a woman to have illicit carnal connection with a man, or by any such means has such connection with a woman; or, having by his language or conduct induced any woman to believe that he is her husband, when in fact he is not, has carnal knowledge of such woman with her consent while she is under such belief; shall be liable to a penal servitude for 14 years.

and so established a separate independent statutory offence.

319 Galliene, by counsel, submitted that he should only have been convicted of this statutory offence and not of rape. Taylor J, at 923, observed that the section would apply to many cases where a person whose language or conduct induces the belief that he is the woman's husband in circumstances which would fall short of establishing lack of consent arising from misapprehension as to the identity of the person who has carnal knowledge. It would, for example, apply to a person in the position of Papadimitropoulos who had, by his language and conduct, induced the victim to believe they were married. It would apply to a man who had contracted a bigamous marriage to a woman who believed him free to marry.

320 Nevertheless, the court rejected the submission 'that in as much as there is a statute which makes the obtaining of carnal connection with a woman by false pretences a misdemeanour, that offence can no longer be a rape', and concluded that it was:

open for an accused person to be indicted as this accused was for the two offences; that is, for rape and the statutory offence. If there is evidence upon which the jury can come to the conclusion that the woman permitted the act of intercourse under a misapprehension as to the identity of the person with whom she was having intercourse, that is, under the belief that he was her husband, the jury could convict of rape. If the misapprehension merely went to the antecedent matter, that is, that they had been married, then he could be convicted of the statutory offence (925).

There is obviously some similarity between s 66 of the NSW Act, as it stood at the time of Gallienne's case and the combined effect of s 319(2) and s 325 of the Criminal Code in establishing the present offence of unlawfully engaging in sexual penetration without consent. It seems that on the reasoning in Gallienne's case one could conclude that had Michael's conduct taken place in New South Wales he could have been convicted in that State for the fraudulent obtaining of consent, as was alleged in this case, but not of rape. His deceit would there be regarded as going to an antecedent matter. The question, of course, is whether or not that rule should be adopted and applied in this State.

321 R v Beserick (1993) 30 NSWLR 510 concerned concurrent appeals to the Court of Criminal Appeal against convictions for indecent assaults and for having sexual intercourse without consent - in each case involving homosexual activity between naval cadets and the appellant who was a petty officer instructor with authority over the cadets. At the time of the alleged offences the cadets' ages ranged from 12 to 13 years. In relation to one of the appeals, involving an act of fellatio by the appellant upon one of the boys, the issue was whether or not it had occurred without consent. The circumstances were that the boy in question had been given a large quantity of port. He was then taken to a bedroom by the appellant where sexual molestation began leading to the act of fellatio while the boy essentially did nothing and made no protest.

322 The case for the prosecution was that lack of consent could be inferred because of the influence of alcohol and the fact that the young boy had had no experience of anything like this before and was frozen into passivity and lack of resistance by the combined effect of these considerations and the superior age and authority of the appellant. In the event, a verdict of guilty of indecent assault upon a male was substituted for the jury's verdict of guilty of sexual intercourse without consent and a reduced sentence was imposed. Hunt CJ at CL, with whom Finlay and Levine JJ both agreed, said at 531 with regard to the issue of consent in the case of alleged sexual intercourse without consent arising from the fellatio:

A number of appeals from rape cases deal with the situation where the complainant was mistaken as to the identity of the person having sexual intercourse with her or as to the character of the physical act being done or as to the purpose for which it was being done: see, eg, Papadimitropoulos v The Queen (supra); R v Galliene (supra); R v Morgan [1970] VicRp 43; [1970] VR 337; R v Mobilio [1991] VicRp 28; [1991] 1 VR 339. The only possible mistake which is relevant to the circumstances of this case relates to the character of the physical act being done. Those cases make it clear, in my view, that the only 'character' of the physical act which is relevant in this context is its sexual character; it does not matter that the complainant is unaware that the act is wrong - criminally or morally.

His Honour went on to analyse the facts which led to his conclusion that the verdict of lack of consent was unsafe and should be set aside. It would seem that this case does not involve anything more than an application of the established Papadimitropoulos principle that consent to a form of sexual activity, where appreciation of the actual nature and character of the activity was not mistaken, will not amount to a want of consent.

323 A case with some similarities to the present is R v Linekar [1994] EWCA Crim 2; [1995] QB 250, a decision in the English Court of Appeal involving a charge of rape where a prostitute consented to have sexual intercourse for payment and the appellant made off afterwards without paying. That gave rise to the question of whether or not the prostitute's consent was destroyed by fraud within the meaning of s 3 of the Sexual Offences Act 1956 (UK). In the judgment of the court delivered by Moreland J, his Lordship referred to the problems of distinguishing between fraud which is sufficient to vitiate consent and other types of fraud which was the subject of the 15th Report of Criminal Law Revision Committee on Sexual Offices (Cmnd 9213 - 30 December 1983). That report recommended that the distinction should be made clear by legislation and that fraud relating to the nature of the act, or impersonation by the offender should still be regarded as destroying consent leaving the offender guilty of rape, but that other cases of fraud should be dealt with under the Sexual Offences Act 1956 as the procurement of sexual intercourse by false pretences. His Honour placed reliance on R v Clarence (1888) 22 QBD 23 and cited portion of the judgment of Wills J to 'expose the fallacy of the submission that there can be rape by fraud or false pretences'. The passage cited from the reasons of Wills J is:

That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent. In respect of a contract, fraud does not destroy the consent. It only makes it revocable (27).

324 The conclusion in Linekar was that the prostitute there consented to sexual intercourse and the reality of her consent was not destroyed by being induced by the appellant's false pretence that his intention was to pay the agreed price of £25 for her services. He was not guilty of rape but, if anything, was guilty of an offence under s 3 of the 1956 Act which had not been alleged.

325 One feature which is already emerging from these cases is that in other jurisdictions where it has been decided by the legislature to establish offences for engaging in sexual conduct where the consent of the partner is obtained by fraudulent pretences or deceit, the expedient chosen has been to establish a separate statutory offence distinct from rape and carrying quite markedly less severe penalties.

326 That leaves us with the situation of dealing with the Western Australia legislation where the traditional offence of rape has disappeared and has been replaced by the new offence of sexual penetration without consent (s 325), which certainly covers activities which formerly would have amounted to rape and exposes offenders to like penalties. However, in the submission of the DPP, and as found by the court below, the section may extend to activity which was previously not rape, but nevertheless is reprehensible, and which exposes offenders to potential penalties, as severe as the traditional crime.

327 If that were the effect of the present Western Australian legislation, then care would need to be exercised in sentencing offenders in order to distinguish between cases analogous to the old offence of rape and cases where an offence has been committed which may not have been formerly, and certainly not everywhere, regarded as so serious.

328 A somewhat novel variation on this theme of whether consent is destroyed by fraud is provided by the decision in the English Court of Appeal in R v Richardson [1999] QB 444. In that case the appellant had been convicted of an assault in the performance of a series of dental procedures upon patients who had attended her for that purpose. The background was that the appellant had been a registered dental practitioner but had been suspended from practice by the General Dental Council on disciplinary grounds, but she had continued unlawfully to receive and treat patients. The patients whom she had treated were unaware of her suspension when they consented to the treatment and the question was whether or not such treatment constituted an assault. Otton LJ, with whom Turner and Dyson JJ agreed, allowed the appeal and quashed the conviction. Their Lordships applied what they considered to be long-established principles of common law to the effect that fraud destroyed consent to an act which would otherwise be an assault only where it had induced a mistaken belief as to the identity of the person doing the act or as to the nature or quality of the act; that a mistake as to identity did not extend to a belief in a person's professional qualifications and attributes and that the concept of informed consent had no place in the criminal law. This case can be regarded, and indeed was treated, as an orthodox application of the principles which had been considered and identified in Papadimitropoulos.

329 Other examples which effectively do no more than apply the rule of Papadimitropoulos include R v Pryor [2001] QCA 341; (2001) 124 A Crim R 22 in which, incidentally, Williams JA undertakes a comprehensive and informative history of the common law of rape dating from the reign of William the Conqueror and explains how Sir Samuel Griffith fashioned the terms of his Code to reflect the problems which had been experienced in this area of the law by the early years of the 20th century. Pryor was a case of a stranger impersonating the complainant's sexual partner, but when the impersonation had been discovered she withdrew the consent wrongly obtained. That was treated as a case of rape on conventional principles. In his separate reasons for decision, Byrne J reached the same conclusion.

330 It is also necessary to notice Director of Public Prosecutions (NT) v WJI [2004] HCA 47; (2004) 219 CLR 43 which involved an appeal from certain determinations of questions of law referred to the Court of Criminal Appeal by the DPP of the Northern Territory about the correctness of a direction to a jury by a trial judge when the accused was acquitted of a charge of having sexual intercourse with another person without consent, contrary to s 192(3) of the Criminal Code (NT). An issue had arisen at the trial over whether or not the accused could rely on s 31(1) of the NT Code which provided that a person was excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct. The question was whether or not the 'act' to which the section referred embodied all the elements of the charge, including knowledge of lack of consent.

331 The judge directed the jury that the prosecution was required to prove three separate elements: the act of intercourse (which was admitted); the lack of consent of the complainant; and the intention of the accused to have intercourse with the complainant without her consent. The Court of Criminal Appeal held, and the High Court affirmed, that the direction was correct and that the relevant 'act' was having sexual intercourse with another person without the consent of the other person. In the course of their joint judgment, Gummow and Heydon JJ at [33], said:

The central elements of s 192(3) 'a sexual intercourse with another person without the consent of the other person' have some affinity with the definition of the common law crime of rape as 'carnal knowledge of a woman without her consent', carnal knowledge being 'the physical fact of penetration'. However, there is in s 1 an expanded definition of the term 'sexual intercourse' and subss (1) and (2) of s 192 both indicate that 'consent' means 'free agreement' and indicate various circumstances in which there will not be that free agreement.

Nothing turns upon these provisions for this case. The provisions in the Northern Territory legislation under examination, so far as material, are comparable with the provisions of s 319(2) of the WA Code, so, therefore, while the decision means that the actus reus of the crime of unlawful sexual penetration without consent is essentially that described in DPP v WJI, that does not mean that the position under the statute is equated with the position of the common law when it relates to the cases of consent being obtained by fraudulent means, deception or other causes specified in s 319(2) of the WA Code.

332 Another case having similarities to the present is R v BMA [2005] NSWCCA 328 involving, inter alia, a conviction for sexual intercourse without consent knowing that the victim was not consenting (s 61I of the Crimes Act (NSW)). The circumstances were that the complainant had been shoplifting in a store when confronted by the accused who pretended to be an undercover security officer and who threatened to report her to the store security staff. In effect the accused conveyed to the complainant that if she would engage in sexual activity with him he would not report her. They left the store together, the sexual activity took place and it was alleged that other sexual offences were also committed. The case for the appellant was that the victim consented to the acts involving sexual intercourse and assault with an act of indecency, albeit under a belief that the appellant was a security officer when he was not and that her consent was not destroyed by reason of the apparent deception of the appellant.

333 It was accepted that consent must be a free and voluntary consent. Importantly, s 61R of the Crimes Act (NSW) provided:

61R. Consent

(1) For the purposes of sections 61I, 61J and 61JA, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

(2) For the purposes of sections 61I, 61J and 61JA and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated:

(a) a person who consents to sexual intercourse with another person:

(i) under a mistaken belief as to the identity of the other person, or

(ii) under a mistaken belief that the other person is married to the person,

is to be taken not to consent to the sexual intercourse, and

(a1) a person who consents to sexual intercourse with another person under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or any other mistaken belief about the nature of the act induced by fraudulent means) is taken not to consent to the sexual intercourse, and

(b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) or (a1) is to be taken to know that the other person does not consent to the sexual intercourse, and

(c) a person who submits to sexual intercourse with another person as a result of threats or terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse, and

(d) a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

and it was accepted that s 61R(2)(a)(ii) vitiates consent in circumstances such as arose in Papadimitropoulos. The question for consideration was whether or not the consent of the victim in that case was vitiated by the threats. In the event, the convictions were quashed on the grounds that the threat made in this case was a non-violent threat which was not covered by the legislation. His Honour observed at [33]:

As I view the statutory scheme in place, and this was the scheme in place at the time of the commission of the alleged offence by the appellant, the statute did not have in contemplation for the purposes of s 61I that consent was vitiated by a threat such as that made by the appellant. The threat which he made was a threat to inform security that the complainant had been observed shoplifting and was hence 'a non-violent threat' within the meaning of s 65A(1). It was not enough for the Crown to have proved in order to establish an offence under s 61I that the victim was influenced to co-operate with the appellant by such a threat. Such a threat did not vitiate consent for the purposes of s 61I. The appropriate section upon which to have proceeded against the appellant would have been s 65A.

Again, this is an example of legislative responses which render the type of conduct which occurred in Papadimitropoulos, and other comparable conduct, offences, by establishing a special statutory offence of less gravity than rape so that a non-violent threat inducing the complainant to engage in sexual activity with the accused would result in the accused committing one or other of the particular new statutory offences but not being guilty of the crime of rape or its modified statutory replacement.

Legislative history of consent provisions in the Code

334 Before 1985 there was no statutory definition of 'consent' contained in the Criminal Code. Rape was defined by s 325 of the Griffith's Code. That section, as it then stood, provided:

1. Any person who has carnal knowledge of a woman or a girl, ... 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 force and fraudulent representations as to the nature of the act, ... is guilty of a crime which is called rape.

335 Consent was there regarded as bearing its ordinary meaning and in relation to consent to sexual intercourse or similar activities the law had long previously been settled in R v Clarence (1888) 22 QBD 23, 43 (Stephen J). That case involved the accused having intercourse with his wife while he was infected with a venereal disease which he transmitted to her. She was not aware of his infection and, had she known of it, would not have consented. But by the law, as it was at the time, she was taken to have consented as an incident of marriage. This decision accepts the longstanding and recognised distinction of practical importance, if not public necessity, of distinguishing between frauds which destroy consent and those which do not. A broad interpretation of fraud in this context 'would collapse the distinction between bigamy and sexual assault' and would also make 'many seductions rapes' as well as leaving only limited scope for s 192 of the Code (procuration - by threats, fraud or drugs).

336 In his 1983 report, The Criminal Code: A General Review (Murray Report), Mr M J Murray QC (as Murray SPJ then was) wrote about fraud, saying, among other things:

The [s 325] definition makes it clear that the only types of fraud recognised are those involving the identity of a person as the husband of a married woman or as to the nature of the act of intercourse itself. There are other types of fraud which should, but have not been held to, vitiate consent so as to constitute the offence of rape and I refer in this regard to the High Court decision of Papadimitropoulos [1957] HCA 74; (1957) 98 CLR 249 at 261 where the fraud concerned was as to the legality of the act because there were fraudulent representations as to the nature of a ceremony which had been performed which was in fact a bogus wedding ceremony. That clearly affected the question of consent to intercourse because the woman concerned clearly consented on the basis that she was married to the accused when in fact that was not so (220 - 221).

One immediately can notice the description of the fraud in Papadimitropoulos as being concerned with 'the legality of the act', as referring to the significance of the sham marriage procedure. It led to a consent to an act of intercourse which would not otherwise have been forthcoming - but it did not distort or misrepresent the nature of the act.

337 The Murray Report suggested that a definition of consent 'be introduced into ... the Code'. That was not done at the time but reference to the suggestion was taken up in 1985 when the Code was amended by the Acts Amendment (Sexual Assaults) Act 1985 (WA) (No 74 of 1985). The Murray Report had followed a national conference on rape law reform in 1980 but, in addition, a number of other expert groups and members had made submissions on rape law reform in the period between 1980 and 1985. Consequently, it is not possible to conclude that when enacting the 1985 amendments, the Western Australian Parliament acted solely on the Murray recommendations in relation to the element of consent or the effect of fraud in cases of sexual offences.

338 The 1985 amending Act introduced Chapter XX1A (since repealed) into the Code. Section 325 was repealed and, as part of the new chapter, s 324G was inserted, providing:

324G (1) For the purposes of this chapter, 'consent' means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to these words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.

(2) A failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.

It is to be noted that this is similar to the present s 319(2) with the difference, possibly important, that at present consent is not free and voluntary if it is obtained 'by deceit, deception or any fraudulent means'.

339 There was no explanatory memoranda produced to Parliament with respect to the Bill for the 1985 amendments, nor do the Second Reading speeches provide any basis for further insight into the concept of fraud and deceit as these concepts are associated with the new s 324G.

340 Chapter XXX1A was repealed in 1992 by the Acts Amendment (Sexual Offences) Act 1992. Chapter XXX1 was inserted which included s 319, as it now stands. Again, there was no explanatory memorandum and nothing in the Second Reading speeches or in the debate in Parliament addressing the point of statutory interpretation which now arises. The section was amended further by s 70 of the Acts Amendment (Family and Domestic Violence) Act 2004, but not in any way material to the present issues.

341 Nothing in this legislative history of s 319, or of its comparable preceding provisions, allows any conclusion to be drawn about the nature or extent of the fraud, or deceit which is regarded as making consent to sexual acts ineffective if the consent were given in reliance on the deceit or fraud. I do not regard it as possible to conclude affirmatively that the Murray recommendations with respect to the Papadimitropoulos doctrine involved acceptance by Parliament that any form of antecedent fraud leading to consent would render the consent ineffective.

342 As earlier noted, there have been a number of amendments in other jurisdictions where the definition of 'consent' is framed in such a manner as to exclude consent obtained by false and fraudulent representations about the nature or purpose of the act. Section 348 of the Queensland Code is one such example.

343 In England and Wales a misrepresentation or fraud relating to the nature or purpose of the act will also make consent ineffective - see R v Cort [2003] EWCA Crim 2149 [17] and R v Jheeta [2007] EWCA Crim 1699. Section 76(2) of the Sexual Offences Act 2003 (UK) would also catch instances where an accused misrepresented the nature and purpose of a medical examination, such as R v Tabassum [2000] EWCA Crim 90; [2000] 2 Cr App Rep 328 and R v Green [2002] EWCA Crim 1501.

344 It must be accepted that there have been some significant shifts in the accepted content of the concept of consent in these situations over the years.

345 In Holman v The Queen [1970] WAR 2, 10, Jackson CJ held that 'a reluctant submission' induced by a long persuasion could be 'a completely willing consent'. However, there is ambiguity in the use of the word 'submission' in this context because it is capable of meaning a yielding to superior force, blandishments or threats which would not have occurred had the woman been acting entirely 'freely and voluntarily, yet to the extent that the use of the word 'submission' connotes eventual willing acceptance, it is consistent with free and voluntary consent. This has been made clear by more recent cases, such as DPP (No 1 of 1993) [1993] SASC 3896; (1993) 66 A Crim R 259 where Perry and Duggan JJ decided, King CJ dissenting, that 'submission is not consent'. More pointedly, in Wagenaar v The Queen [2000] WASCA 325, Ipp J said, and Kennedy and Pidgeon JJ agreed, that the observation of Jackson CJ in Holman v The Queen, namely:

A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing that permission is not obtained by force, threats, fear or fraud) it is not rape.

was in the then present day and age inappropriate. Of a submission that a Holman-type direction should have been given by the trial judge in Wagenaar v The Queen, Ipp J said:

[19] Thirdly, in my view, the direction suggested by Jackson CJ, in this day and age, is inappropriate and the learned Judge was entirely correct in not utilising it. The fact that the present definition of consent under s 319(2) might differ from the meaning of consent under the old s 325 of the Code does not justify a direction in the terms suggested by Mr Percy.

[20] For reasons I have expressed, I consider that the direction in fact given by the learned Judge was clear and in accordance with the law prevailing at the time the offences were committed. Accordingly, I would not uphold the first ground of appeal.

346 It is important to note that under s 319(2)(b) of the Code it is now clear that mere failure to offer resistance does not constitute consent. This provision clearly rejects that part of the reasoning implicit in the now criticised dictum in Holman v The Queen. Further examples which demonstrate that a Holman-type direction would now be regarded as erroneous can be found in Ibbs v The Queen [1988] WAR 91, 93 (Burt CJ); Verdon v The Queen (1987) 30 A Crim R 388 and Pearmine v The Queen [1988] WAR 315.

347 In a leading textbook by Colby, Linden and McKechnie, Criminal Law in Queensland and Western Australia - Cases and Materials (4th ed, 2005), the learned authors observe, with respect to the statutory definition of consent incorporated by s 319(2) of the present Code that:

The interpretation of the broad phrase 'freely and voluntarily' is yet to be determined. There may be room for debate over the significance of harassment and economic pressure as forms of intimidation. There may also be room for debate over the significance of some misrepresentations. In Western Australia the list of proscribed means refers generally to deceit or any fraudulent means, while the Queensland list identifies only misrepresentations as to the nature and purpose of the Act and impersonations of a sexual partner. This difference in wording, however, may not matter.

348 In R G Kenny, An Introduction to Criminal Law in Queensland and Western Australia (6th ed, 2004), the learned author, when writing of the present statutory definitions of consent in the present Codes in Queensland and Western Australia said at [1420]:

The Code (Qld) s 348 refers to exercise of authority, fear of bodily harm, false and fraudulent representations as to the nature of the act and to the situation where the victim's consent is given in the mistaken belief, induced by the accused, that the accused is the victim's sexual partner. The Code (WA) s 319(2) refers to deceit or any fraudulent means. In relation to obtaining consent by fraudulent means, the Queensland provision specifically relates the accused's fraud to the nature of the sexual act. Such fraud arose in Williams [1923] 1 KB 340 where the accused, a singing teacher, induced a 16-year-old pupil to have sexual intercourse with him by representing that the procedure was an operation necessary to improve her breathing - see also Flattery (1877) 2 QBD 410 and Linekar [1994] EWCA Crim 2; [1995] 2 WLR 237.

349 After referring to Papadimitropoulos v The Queen the author wrote:

The definition of 'consent' in the Code (WA) s 319(2) does not limit the deceit or fraudulent means to the nature of the sexual act and these terms may be broad enough to extend to the wider aspects of deception such as arose in Papadimitropoulos.

There is an additional difficulty posed by the cases in which it is said that the consent that was given was not a free or effective consent because it was negatived by threats, intimidation, deceit or a fraudulent pretence.

350 As said by Williams JA in R v Cutts [2005] QCA 306 [43]:

Where an accused person gives evidence admitting the sexual activity but contending that it was with the complainant's consent there is evidence that he believed the complainant to be consenting. If the jury rejects the correctness of the accused's evidence and accepts the evidence of the complainant that she was not consenting, that does not mean that the accused did not hold the belief to which he swore. In those circumstances the jury should go on and consider whether or not the belief was honestly and reasonably held, unless in the circumstances there was some good reason for not doing so. In a case such as that the rejection of the accused's evidence to the effect that the complainant was consenting does not necessarily amount to a rejection of the evidence that he held such a belief.

Of course, if the ineffective consent was procured through threats, there would appear to be no basis upon which the accused could hold an honest and reasonable belief that the woman had in fact consented. In a case of consent said to be obtained as a result of deceit or fraud that may not be so and much is likely to depend on the nature of the alleged deceit or fraud because if, in a case such as the present, the alleged threat or intimidation was only implicit, it may have been something which was not intended or known by the man, even though it had a powerful adverse influence upon the woman. In that case a defence of honest and reasonable belief that the woman was consenting under s 24 will be open. All this means is that each particular case needs to be analysed with some care. Here the prosecution started out alleging express threats had been made but the case went to the jury on the basis of both express and/or implied threats. It seems that the potential effects of this on the issue of mistaken belief in consent were simply not explored. It is not possible to conclude that the jury accepted that any threat - express or implied - was made on either occasion.

351 Under the Sexual Offences Act 2003 (UK) it is expressly enacted that, for the purpose of proceedings for statutory sexual offences, if it is proved that the defendant did the relevant act and that he intentionally deceived the complainant as to the nature or purpose of the act, or intentionally induced the complainant to consent to the act by impersonating a person known personally to the complainant, it is to be conclusively presumed that the complainant did not consent to the act and that the defendant did not believe that the complainant consented to it - see s 76, Sexual Offences Act 2003 (UK). These provisions make it clear that, in the absence of such legislation, there is scope for a defence of honest and reasonable mistaken belief that the woman was consenting.

352 In Law Book Co, The Laws of Australia, vol 10, [10.3.14], when discussing the significance of the common law doctrine as defined in Papadimitropoulos v The Queen, the learned authors explain how the position has been modified by statute in New South Wales and Queensland, with some minor modifications in Victoria and South Australia, but that in Tasmania:

[T]here are conflicting decisions as to whether the decision in Papadimitropoulos v The Queen applies to the Criminal Code (Tas). The Code simply excludes from the definition of 'consent' a 'consent procured by force, fraud or threats of any kind'. In R v Schell [1964] Tas SR 184 Crisp J held that the definition of 'consent' in the Criminal Code (Tas) was not a true definition but rather a statutory statement as to the circumstances in which a consent could be given, leaving the content of that consent (that is, to what the victim must consent) to be defined by the decision in Papadimitropoulos v The Queen. In an earlier decision, R v Hurst (unreported, TASSC, Gibson J, 8 June 1960) common law principles were not applied and in Woolley v Fitzgerald [1969] Tas SR 65 the matter was argued, but Chambers J left the matter open. The definition of 'consent' in the Criminal Code (Tas) has since been extended by adding that a consent is fully given where '(b) it is not procured by reason of the person being overborne by the nature or position of another person; or (c) it is not given by a person so affected by liquor or drugs, or so otherwise affected, as to be incapable of forming a rational opinion upon the matter to which the consent is given'. Therefore, although the reasoning of Crisp J remains a possible interpretation, the contrary argument that the Code definition leaves no room for invoking common law concepts of fraud is strengthened.

The learned authors of The Laws of Australia go on to say that:

In the Australian Capital Territory and Western Australia, the type of fraud that will vitiate consent would appear to have been extended by statute, but whether the provisions will be so interpreted has not been the subject of judicial decision.

353 In Victoria the effect of the decision of R v Mobilio [1991] VicRp 28; [1991] 1 VR 339 has been reversed by statute which now provides that a person does not freely agree if they mistakenly believe that the act is for medical or hygienic purposes.

354 When writing in (1992) 16 Crim LJ 85, Mr S H Bronitt addressed the criminal law, and in particular the significance of consent, in cases of alleged criminal liability for the transmission of HIV/AIDS and, after discussing Papadimitropoulos observed (at 89):

This case dealt with rape, but the principles rather would apply equally to any offence where an ingredient was the victim's non-consent, such as assault. In the present law, ' ... whatever the context, there is a critical distinction between understanding what is being done and why it is being done'. Only where the deceit relates to the former will the victim's consent be vitiated.

355 In another article writing upon rape and lack of consent (1992) 16 Crim LJ 289 the same author, Mr S H Bronitt, addresses proposed changes to rape legislation in Australia after Papadimitropoulos and was critical of the different statutory attempts to deal with that in New South Wales and Victoria, observing (at 297):

The restrictive approach to vitiation of consent in the common law stems from a judicial reluctance to give the 'nature and character of the Act' a broader interpretation. Merely devising piecemeal statutory modifications on an ad hoc basis, as has been done in New South Wales and Victoria, tackles the symptoms rather than the cause of the problem. The cause of the problem is the critical distinction in the present law between understanding what is being done and why it is being done.

356 The history and significance of the amendments to s 319(2) of the Code and the new ch 40 dealing with 'fraud' are described by Mr G Syrota in the useful article 'Criminal Fraud in Western Australia: A Vague, Sweeping and Arbitrary Offence' (1994) 24 University of Western Australia Law Review 261. One of the possible applications of the extension of the law addressed by Mr Syrota (273), is where an accused person induces a gullible young woman to sleep with him by pretending to be a pop star or other celebrity. At common law that would not constitute rape or assault because of the Papadimitropoulos test but, so the author postulated, that accused could have been convicted of fraud under s 409(1)(e) if the Murray test of intent to defraud had been accepted: it would not have mattered that the harm caused to the woman was non-pecuniary in nature.

357 In a subsequent article Mr G Syrota discusses the case, already examined, of R v Linekar [1994] EWCA Crim 2; [1995] QB 250, being the one in which a prostitute was tricked into having sexual intercourse with a man by a false promise of payment and where it was decided that this did not constitute rape - see 'Rape: When Does Fraud Vitiate Consent' (1995) 25 University of Western Australia Law Review 334. In the course of the article that author wrote of Linekar's case (336):

In quashing L's conviction the Court of Appeal was clearly influenced both by policy and precedent. As for policy, the court was keen not to broaden the crime of rape by fraud to such an extent that men would be put at risk of being charged with this offence in seemingly trivial cases. A man who promises a woman a fur coat in return for sexual intercourse, with no intention of fulfilling his promise, should not be guilty of rape, the court held. Likewise, a bigamist who 'marries' and subsequently has sexual intercourse with his second 'wife' whilst concealing from her that he is still married to another woman, should be charged with bigamy, but he should not be guilty of rape.

In asking the question whether Linekar would be convicted in Western Australia under s 325 of the Code, in view of the statutory definition of consent applicable by s 319(2)(a), Mr Syrota proceeded to identify a series of problems which too ready acceptance of that proposition might involve. He writes (340):

At first glance, the phrase 'a consent obtained by ... deceit, or any fraudulent means' seems to suggest that any deceit or subterfuge that in fact induces a woman to give a consent that she would not otherwise have given is enough to destroy that consent and render the man guilty of an offence under s 325. On this view, a man could be convicted, for example, if he persuaded a woman to sleep with him by pretending to be rich and famous, or to be in love with her, or by misrepresenting that it was his intention to marry her. By the same token Linekar's pretence that he intended to pay the prostitute would vitiate her consent and make him guilty under s 325, since it can safely be assumed that she would not have agreed to have intercourse with him had she known of his true intention.

There are however three difficulties with the view that virtually any false pretence (and not merely those which relate to the identity of the man or to the nature of the act) may negative consent and render D guilty under s 325. The first point is that this interpretation would render another offence in the Code, namely s 192(2) largely or perhaps wholly redundant. Section 192(2) ('procuring by false pretences') provides that it is a crime, punishable by 2 years' imprisonment, for a person:

[Further], 'by any false pretence [to procure] a woman or girl, who is not a common prostitute or of known immoral character, to have unlawful carnal connection with a man, either in Western Australia or elsewhere'.

As with the corresponding English legislation, it has long been established that any false pretence is sufficient to bring D within this section, provided of course that the pretence actually induces the woman to engage in sexual intercourse. Clearly there would be little point in retaining this offence if any false pretence was also capable of bringing D within the ambit of the offence of sexual penetration without consent under s 325. This suggests that the notion of 'deceit, or any fraudulent means' in s 319(2)(a) must be given a somewhat narrower interpretation which would cover only some but not all, types of false pretence. This approach would ensure that s 192(2) had a different and wider ambit than s 325 and that it was not subsumed by it.

The second point relates to s 202 of the Code. This section makes it clear that a man can be convicted of procuring a woman to have sexual intercourse by false pretences, contrary to s 192(2), even though the woman consents to the intercourse. Section 202 states:

It is no defence to any charge defined in s 192, that the act of the accused person by which the offence was committed was done with the consent of the person with respect to whom the act was done.

It seems to be implicit in this provision that there must be at least some types of false pretence which may induce a woman to have sexual intercourse with a man, but which do not vitiate her consent to it. An example would be that given by Wills J in Clarence where a man knowingly gives a prostitute 'bad money' (eg, a forged cheque or counterfeit currency) in order to procure her agreement to have sex with him. As Wills J stated, it would be 'childish' to argue that the prostitute did not consent to intercourse merely because she had been duped into thinking that she had been paid for her services. However, if this type of pretence does not negative consent for the purposes of s 192(2) it must surely follow that it does not negative consent for the purposes of s 325 either. Since s 325 requires proof of sexual penetration without consent, it follows that in Wills J's hypothetical case, the man cannot be convicted under this section.

The third point concerns the wording of s 325. This section applies where a person 'sexually penetrates another person without the consent of that person'. How are those words to be interpreted? The answer perhaps is to be found in the High Court's judgment in Papadimitropoulos which although it dealt with rape and common law, appears to establish a principle which applies equally to the interpretation of s 325 of the Code.

To sum up: whilst the position is certainly far from clear it is suggested that the complicated definition of 'consent' in s 319(2)(a) does not significantly alter the law from what it was previously understood to be in this State and from what it is still understood to be in common law jurisdiction such as England. To vitiate consent, and bring the defendant within s 325, the fraud must relate either to the identity of the man or to the nature of the act. Other frauds which do not vitiate consent, can be dealt with either under s 192(2) or s 409. ...

358 With respect, I consider that Mr Syrota has correctly identified powerful objections to the acceptance of the meaning of s 319(2) now advanced by the respondent. The province and scope of the offence under s 192(2) of the Code is a substantial impediment to the adoption of the respondent's submissions. The difficulty remains: what is the proper interpretation of s 319(2)?

359 Addressing the same topic and reviewing the previous articles of Mr Syrota, Professor N Morgan, writing in (1996) 26 University of Western Australia Law Review 223 under the heading 'Oppression, fraud and consent in sexual offences' also discusses Papadimitropoulos, Linekar and Mobilio and adopts several of the arguments already mentioned in the Syrota articles. When speaking of s 319(2) and the meaning of 'free and voluntary consent', Professor Morgan observed that although the Murray Report anticipated a broad reading of this section and specifically criticised the result in Papadimitropoulos, writers disagree on whether the language of s 319(2) actually leads to a different approach. On the one hand, Syrota and Edwards, Harding and Campbell adopt what may be termed the 'narrow view', that the common law approach still largely applies. On the other hand, Fisse and Bronitt have taken the 'wide view' of s 319(2)(a) that any fraudulent behaviour which induces a person to have intercourse will vitiate consent. Professor Morgan concludes, at 240, by saying:

I have argued that in order to give effect to the purpose of reforms to the law of sexual assault, the courts must ensure that juries consider, as a question of fact, whether intimidatory and oppressive behaviour has vitiated an apparent consent. However, the courts must reject the wide view that any type of fraud can vitiate consent; such a view is unworkable and would generate many practical difficulties. Similar problems confront the notions of unconsionability and fraud as to the moral quality of an act. It has therefore been argued that the courts in Western Australia should adopt legal rules which delimit the situations in which fraud vitiates consent and should not regard this merely as a question of fact for the jury. It is suggested that the best approach is for the courts to rework the common law rules. Once it is recognised that the proper focus is the defendant's fraud rather than the victim's mistake, the law can readily accommodate a conviction on facts such as Mobilio.

360 As Professor Morgan again writes, the legislation, including s 319(2) designed to update and simplify the law relating to sexual offences (223):

has not adequately resolved the conundrum of when consent is vitiated by fraud. In particular, it is debatable whether the courts would employ the common law approach that fraud will only vitiate consent if the victim is mistaken as to the nature of the act or as to the identity of the actor.

Of particular concern to this author was the problem presented by cases where a complainant is deceived into agreeing to sexual contact because of some fraud or misrepresentation associated with medical reasons. Professor Morgan's conclusion was that in the absence of more detailed statutory provisions the concept of fraud as to the nature of the act is the best mechanism for explaining when fraud 'vitiates' consent and that, if properly applied, this would lead to a conviction in bogus medical examination cases. E J Edwards, R W Harding and I G Campbell, in their joint work The Criminal Codes, Commentary and Materials (4th ed, 1992) 542, took the view that the definition of 'consent' in s 319(2) did not alter the conventional common law approach. The opposing view is adopted by S Bronitt: Rape and Consent (1992) 16 Crim Law J 289, 301 and by B Fisse: Howard's Criminal Law (5th ed, 1992) 180 - 183.

361 There are compelling practical considerations to confine the scope of fraud or deceit under s 319(2) to avoid inclusion within the offence fraudulent deceptions which do not go to the nature or quality of the Act or its purpose or to the identity of the person proposing the sexual activity. Similar considerations arise from the need to retain scope for traditional offences, such as bigamy (this is an offence under Commonwealth law (Marriage Act 1961 s 94)). Also there are other cases of fraud inducing other forms of sexual activity which, while undoubtedly properly characterised as criminal offences contain more particular elements and attract different graduated penalties.

362 There have been a number of analyses of the principles when it comes to consent in sexual cases undertaken by various Law Reform Commissions. The Law Reform Commission of the ACT in its Report No 18 of April (2001) recommended that legislation should be introduced so that for these purposes 'consent' should be taken to mean a consent freely and voluntarily given with the knowledge of the nature of the act in question and the identity of the other person or persons involved.

363 With regard to the role of fraudulent misrepresentation, the ACT report observed, in pars 35 and 36 as follows:

1. Whilst honesty in relationships is obviously desirable, most people would baulk at making it a criminal offence to engage in any duplicity even if with a view to inducing consent to a sexual intercourse. There is a vast range of flattery, boasting and hyperbole that might fall within such a wide description but not necessarily warrant a criminal prosecution, as in the example of 15-year-old telling a rock star she was over the age of consent. Nonetheless, it is important to ensure that appropriate criminal sanctions are available in some circumstances where consent is induced by fraudulent misrepresentation. One such situation is where the representation falsely suggests that there is some medical need for the relevant act. Another is where a person has been deceived into believing that there has been a valid ceremony of marriage between the complainant and the accused. Such conduct involves an extraordinary betrayal of trust.
2. In cases of this kind it might be argued that any apparent consent has not been freely and voluntarily given and that the act of engaging in sexual intercourse in those circumstances could be prosecuted as rape. However, a contrary view has been taken (Papadimitropoulos). In any event, the few cases that have been reported suggest that misrepresentations of that kind may tend to arise primarily in the context of particular professional, ethnic or religious groups and that there may be some advantage in the enactment of a new section specifically criminalising such behaviour.

The report then went on to recommend the introduction of a specific offence dealing with such instances.

364 When speaking of those cases where, at common law, convictions of rape have been sustained where the offender had pretended that he was engaging in some form of spurious medical treatment, or assisting in singing lessons or some other similar deception, Morland J said in R v Linekar [73]:

In our judgment, it is the non-consent to sexual intercourse rather than the fraud of the doctor or choirmaster that makes the offence rape. Similarly, that ingredient is not proved in the husband impersonation cases because the victim did not consent to sexual intercourse with the particular man who penetrated her. We venture to suggest that at common law it is immaterial whether the penetrator is impersonating a husband, a cohabitee or a lover, as is supported by the Criminal Law Revision Committee.

365 The crucial point is whether the person concerned freely and voluntarily consented to the act of penetration. If the consent to penetration was obtained because the nature and purpose of the penetration was misrepresented, for example, as some form of necessary medical therapy, then the consent would not be effective by reason of the operation of s 319(2). If, however, the consent to the penetration was fully comprehending, realising its sexual nature and purpose and the person who wished to engage in it, it is difficult to see how that could not be free and voluntary because there had been some deceit or fraudulent practice about some antecedent matter, such as the price which was to be paid to the woman for the agreed activity. The use of the phrase 'antecedent matter' in Galliene's case seems, with respect, to be an appropriate reference to that preceding negotiation which did not in any way distort or misrepresent the nature of the service which the appellant was hoping to purchase or the fact that he was the one who hoped to engage in it.

366 In the present case, it is clear that the alleged deceits by the appellant, Michael, however reprehensible, did not relate to nor induce any misunderstanding or mistake as to the identity of the appellant as the person who was to engage in the sexual activity; the precise nature of the sexual activity proposed and occurring, nor the nature and purpose of the activity, namely for personal gratification of the appellant. Because of the way in which the jury was directed in the matter and, obviously because they regarded the application of the law relating to consent in this area of crucial importance, it cannot be said that their verdicts can be explained solely by concluding that consent in this case was ineffective because of intimidation or threats alone, or in combination, to the exclusion of deceit or any fraudulent means.

367 The present case, of fraudulent impersonation of a police officer, has the potential to involve several of these concepts features which could render consent ineffective. Firstly, as already discussed, the false representation may or may not be a deceit or other fraudulent means by which consent is obtained.

368 However, impersonation of a police officer is, at least theoretically, capable of giving rise to actual or implicit threats or to intimidation, as was in fact finally argued by the prosecution. There was evidence to support that contention by statements from the two women that they proceeded to engage in discounting their price or engaging in sexual activity without payment because the accused had intimated that he would make trouble for them (presumably causing them to be arrested) in his capacity as a police officer. The appellant had denied this. It is clear that such threats or intimidation by a person falsely pretending to be a police officer might arise and in that case, although the deceit may not be a fraudulent misrepresentation or activity which would, by itself, make the ensuing consent ineffective, the intimidation or the threat which it implied, or with which it was expressly accompanied could itself make the consent ineffective. In that case, it is not so much the fraud or the deceit which makes the consent ineffective, but the intimidation or threats which accompany or follow from the fraud or false pretence.

369 In my view, in a case such as this, it is essential that this should be explained to the jury, lest a decision to convict be prompted merely by the fraudulent pretence or deceit, rather than by the existence of an express or implied threat or intimidation accompanying the fraud. This is especially important in a case where the accused, while admitting an earlier similar false pretence, denies making any implicit or express threat or engaging in any intimidation. The danger is that some members of the jury may consider that a conviction is justified merely upon proof of a fraudulent pretence or deceit, whereas others may correctly appreciate that if such a fraud or deceit did occur that might not be sufficient itself to make the consent ineffective and so go on to look for, and find, a basis for concluding that the fraud had actually given rise to a threat or intimidation. The possibility, therefore, is that some jurors may be disposed to convict on findings which would be insufficient to justify a conviction, whereas others may be satisfied that facts establishing liability did exist. The difficulty in the present case is that no direction along these lines was given although it was apparent that the jury had concern about the true significance of the issue of consent in the context of this case.

370 R v Brown (1984) 79 Cr App R 115 (119) demonstrates that unanimity of the jury on one of several possible ingredients of an offence is essential. But where there are several paths - involving no mutual inconsistency - towards the essential finding, so long as the essential finding is agreed upon by all members of the jury, the fact that they reached it by different methods does not deprive their verdict of full effect - see R v Clarke [1986] VicRp 64; [1986] VR 643, R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 and Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41.

371 In the present case the submissions for the DPP were to the effect that the single issue before the jury was whether or not the sexual activity had taken place without a free and voluntary consent and that this single question of free and voluntary consent had been left to the jury. On this view, although members of the jury may have approached their decisions in different ways, their unanimous verdict indicated that they were agreed upon the essential and determinative issue. That would be satisfactory if it were possible to conclude that there had been no scope for the jury to reach the conclusions of guilt upon inconsistent or mutually exclusive processes of reasoning. However, as I have endeavoured to describe, if fraud or deceit in relation to matters inducing the acts of sexual activity, but not relating to their identity or purpose or to the identity of the accused, are not sufficient to justify conviction because of the Papadimitropoulos principle that would not be so. Unless it can be concluded that the verdicts of the jury can only connote that, in addition to finding that there had been a fraudulent misrepresentation or a deceit, that fraud or deceit had carried with it a threat or intimidation of the victim, one cannot safely conclude that all members of the jury were agreed upon a verdict which accepts that the essential ingredient of the alleged crimes have been proved.

372 As was said by Kirby J in Director of Public Prosecutions (NT) v WJI at 76 [104]:

Sexual intercourse without consent is a very serious offence and an affront to the human rights and human dignity of the victim. However, conviction of that crime carries very serious consequences for the liberty, life and reputation of the prisoner.

Particularly, as in Western Australia, where there has yet been no introduction of a less serious statutory offence for cases which would fall short of the former common law code concept of rape, it is important that an offence against s 325 should not be assimilated with other less serious offences contained in s 192 and s 409(1)(e) of the Code to which Mr Syrota has directed attention.

373 Furthermore, it would be quixotic in the extreme for any person in the current age to ignore the inevitable, that there will always be, however unsatisfactory it may be from any moral viewpoint, many instances in which men or women engage in sexual intercourse with each other when that activity is preceded, and to an extent induced, by some form of deception such as 'I am not married'; 'I am not seeing anyone else'; or with false and exaggerated protestations of wealth, importance or status. Examples could be multiplied of promises being made which were never intended to be kept, and of facts or conditions concealed which, if revealed, would almost certainly lead to rejection. Conduct of this kind which I think can safely be said, has probably been common since the earliest times of recorded human history, however deplorable, has not previously been regarded as criminal, or at least so criminal as to justify a conviction for the most serious form of sexual offence prevailing from time to time. That is a powerful indication that such misconduct or deceit has not generally been regarded as criminal and it would be surprising indeed if, by such an indirect means, as the amendment to s 319(2) of the Criminal Code, Parliament had intended to effect such a far-reaching change to the law which is likely to affect and criminalise types of conduct which had not previously been treated as the most serious of the indictable sexual offences.

374 Clearly, s 319(2) has made significant changes to the law. For reasons already given, a Holman defence would now be rejected, and it could never be suggested that mere submission by a woman to sexual activity by a man to which she was opposed, could constitute consent. However, it is an entirely different thing to conclude that what was plainly an active participation in sexual intercourse by a prostitute was non-consensual because, by some form of misrepresentation, the woman agreed to the activity on the strength of the promise to be paid more money than she was in fact paid, or to be paid when in fact she was not paid.

375 It may be necessary for the full impact of the limits to s 319(2) to be worked out by the experience of cases involving unusual situations, such as the present. For example, would it be an unlawful sexual penetration for a recently deregistered medical practitioner to conduct a gynaecological examination of an unsuspecting patient who would not have consented, as she did, had she known that the person was no longer entitled to practice medicine? Or, in such a case, is the better view of s 325, to treat the conduct of the deregistered former medical practitioner as a breach of the provisions of the Medical Act and so subject to prosecution and penalty for an offence of that kind which such special legislation specifically addresses? I take the latter view.

376 For the present, therefore, I consider that the scope of deceit or any fraudulent means in s 319(2) should be treated as referring to those frauds or misrepresentations which deprived the person concerned of a full comprehension of the nature and purpose of the proposed activity or his or her legal status of the person as a spouse, or his or her identity as an acceptable sexual partner. In the present case, I do not consider that the appellant's deceptions of pretending to be a police officer by themselves constitute deceits or frauds which had the effect of making the consents given by these two prostitutes to his activities ineffective.

377 In my view, a ruling to that effect should have been made at the trial and the issue of consent or lack of consent arising solely from deceit or fraudulent means should not have been allowed to go to the jury. However, the questions of whether or not there had been threats or intimidation and, if so, of what kind and to what effect, are separate questions and not without their own difficulties as to the extent of the threats or inducements contemplated - see the Syrota article referred to in [357] above.

378 The jurors should have been directed carefully that if they were satisfied beyond reasonable doubt that the appellant had threatened or intimidated either or both of the prostitutes, and so obtained consent to sexual activity, that such a consent would not be regarded as effective at law, leaving him in the position where he could be convicted of sexual penetration without consent. However, as earlier noted, if the jury's conclusion was that such threats or intimidations were implicit and not express, or even more, that the victims had felt threatened or intimidated without the appellant realising it or realising that any of his actions had induced such fears or apprehensions, then the question of honest and reasonable mistake as to the existence of a consent by the complainants would increase in prominence and importance. In the present case the appellant plainly behaved as if the women were consenting and said as much to the police when interviewed. Accordingly, the possible existence of honest and reasonable but mistaken belief as to the reality of consent under s 24 of the Code would be a greater issue in the case if the consents were obtained by implied threats or intimidation.

379 Distraction in the present case occurs because the nature of the alleged deceit or fraudulent means, namely the impersonation of a police officer, is capable, as was suggested, of giving rise to other features such as threats and intimidation which might also render consent ineffective. That distraction can be avoided by postulating a somewhat different version of events, one which I emphasise is entirely hypothetical.

380 Take a situation where an authentic police officer, operating under cover, approached a prostitute and solicited her to have sexual intercourse with him. She, suspecting that the man might be a police officer and being unwilling to engage in her trade with a policeman lest it may involve her in trouble, asked him directly whether or not he was a police officer and was answered with a false denial. Having taken this step, the pair then agreed that the man pay $150 for 'the full service', the money was paid and sexual activity, including penetration, followed. In that example, it would be entirely true to say that the prostitute would not have engaged in sexual activity with the officer had she known the truth and that her consent to do so was obtained by his false denial that he was a police officer. The advantage of this example is that it is devoid of any implications of threat or intimidation or of the service being provided for less than the woman was willing to accept, instead, it concentrates entirely on a fraudulent answer to a question which did not concern the nature or quality of the act or the person who was to perform it. In my view, the deceit or fraud in this example is entirely associated with an antecedent matter. It does not in any way lessen the comprehension by the woman of what she was being solicited to do or who would do it with her.

381 It might be correctly said in the present case that the subject matter of contention between the appellant Michael and the two prostitutes was the price that was to be paid for their services. There seems to be no doubt that P would have consented unreservedly if the appellant had agreed to pay her asking price of $150, and for that matter that T would also have consented unreservedly if her asking price of $100 had been accepted and paid. As it was, each agreed to what then followed. In such circumstances, the deceit or other fraudulent means, if that is what led to the penetrations, should more properly be regarded as dealing with the antecedent matter of price because there was no lack of comprehension by either of these woman as to what the appellant himself desired of them.

382 The historical progress of the development of the content of the crime of rape is comprehensively described by Williams JA in R v Pryor where it was traced from the 11th century through many statutory reforms. As his Honour explains, up until the late part of the 19th century, the critical element of the offence was the use of force rather than the absence of consent. So it came about that the impersonation cases which did not involve any element of force were, for some time, treated as being outside the concept of rape: see R v Jackson (1822) Russ & Ry 47; 168 ER 611 and R v Linekar. However, by 1885, English law was amended in a manner which tended to place emphasis on the concept of consent. This was further complicated by the rule recognised in R v Clarence and maintained until recent statutory amendment, that, by marriage, a woman was taken to have accepted any act of sexual intercourse by her husband as part of the status of marriage, regardless of whether she subjectively consented on any particular occasion. Further complications have arisen in relation to sexual activity where one of the parties has a sexually communicable disease and, in comparatively recent times, the prevalence of HIV/AIDS has added immeasurably to the significance of that issue.

383 I consider that the 1985 and 1992 amendments to these provisions of the Criminal Code were obviously intended by Parliament to deal with these emerging issues and with some perceived inadequacies in the pre-existing law. It must be accepted that the reformulation of the offence of sexual penetration without consent now contained in s 319(2) and s 325 of the Code has achieved at least the following effects:

(a) the retention of the reform that a man could be convicted of an offence of unlawful sexual penetration of his wife even within marriage;

(b) the complete elimination of the Holman approach that grudging or tearful submission could amount to consent replacing this with emphasis upon necessity for free and voluntary consent coupled with the express stipulation that a failure to offer physical resistance does not of itself constitute consent;

(c) a broadening of the scope of fraud involving impersonation to expand it beyond a false pretence that the person performing the act of penetration is a husband, to any sexual partner of either sex or to any person, other than the accused, with whom the complainant would have been willing to engage in sexual penetration even if for the first time;

(d) to include as a deceit or fraud relating to the nature of the act or its purpose, those instances involving bogus medical treatment; or other deceptions concerning the purpose of the activity such as, for example, the singing teacher type of cases;

(e) to apply to the sham marriage variety of cases, such as Papadimitropoulos, because the deception there goes to the legal status between the two participants (ie marriage) and becomes tantamount to the fraud of impersonating a husband (or for that matter a wife).

384 Nevertheless, because of the need to limit the application of s 319(2) to avoid indiscriminate applications to acts of deceit or other fraudulent means going only to antecedent matters, such as representations about payment when dealing with prostitutes, or fraudulent blandishments intended to make a person more attractive, such as the wiles of a seducer, the full comprehension of the nature and the purpose of the sexual activity involved and agreed participation will not make that consent ineffective or not freely and voluntarily given.

385 None of this was explained to the jury in the appellant's case. The jury was not directed to consider whether or not the consents by P and T were freely and voluntarily given in the sense that each woman fully comprehended what Michael desired to do with them, that the proposed activity was for sexual gratification and had not been disguised as being for some other necessary plausible purpose.

386 Had the jury been directed in that fashion, it would have been open, on the facts of this case, to conclude that Michael's deceit, or fraudulent means, had been directed to and was only material to the discussions about price. If that was so, he could not properly have been convicted of any of these charges insofar as the allegations in the charges depended upon consent which had been given being ineffective because of the alleged deceit or fraudulent means. It would still have been possible, however, for the jury to have concluded that the deceit and/or fraudulent means had a dimension and effect which went beyond the antecedent matter of price and carried with it implied threats or intimidation. If they were satisfied of that, to the requisite degree of proof, then convictions for each of the offences would have been justified. However, these important distinctions were never explained to the jury and, for reasons already canvassed, one cannot be satisfied that their verdicts are founded solely upon a conclusion that the consents given by these two women were ineffective because of threats or intimidation by the appellant as there is a distinct risk that the appellant may have been convicted for conduct which could not amount to an offence within the meaning of s 325.

387 I would therefore allow these appeals, quash each conviction and order a new trial.

388 It is necessary to treat the appeal against sentence either on the footing that, contrary to the conclusions which I have earlier expressed, the false representations by the appellant constituted deceits or fraudulent means which would have made the consents given by the two complainants ineffective, or that the conduct of the appellant involved threats and/or intimidation which made the consents given ineffective.

389 Immediately this produces a situation in which sexual penetration without consent as an offence created by s 375 is far broader and extensive than the previous offence of rape or analogous modern offences and may include, for example, cases of bigamy, false promises of intention to marry and a multitude of other less emphatic false promises or concealments. That realisation must be accompanied by the appreciation that although some forms of sexual penetration without consent are extremely serious and warrant the gravest punishment as did offences for rape there may be some which, while still serious, amount to seductions induced by fraud or deceit.

390 As the offence expands, so must the range of penalties expand, even if towards the less severe end of the scale. Because of this I am not prepared to accept the observations that any act of sexual penetration without consent would usually be expected to receive a sentence of 4 years' imprisonment, because I am certainly not satisfied that the learned judges who ventured those observations had cases such as this, or this wide scope of s 325, in mind.

391 The authorities relating to the principles which should be applied when dealing with a prosecution of appeal against sentence have been frequently stated and recently reviewed - see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] (Gleeson CJ and Hayne J) and [58] (Kirby J) and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672.

392 For all the reasons identified when dealing with the appeal against conviction, this was an unusual case and one which resulted in conviction because of the expansion of law by the amendments made to s 319(2) and s 325 of the Code. These give rise to a greater breadth of sentencing options and I am not satisfied that there has been any manifest error in the exercise of the sentencing discretion by the learned trial judge. I would dismiss the appeal against sentence.

393 It is, therefore, unnecessary to address the issues raised by the notice of contention filed on behalf of Michael on the appeal against sentence.