Crimes Act 1900 (ACT), ss 54, 60, 67, 92P

Crimes Legislation Amendment Act 2001 (ACT), s 43

Crimes Act 1900 (NSW), s 66

Criminal Code Act Compilation Act 1913 (WA), s 319(2)(a)

Crimes (Amendment) Ordinance (No 5) 1985 (ACT)

Bill Acceptance Corporation Ltd v GWA Ltd [1982] FCA 269; (1983) 1 IPR 496

Case Stated by DPP (No 1 of 1993) [1993] SASC 3896; (1993) 59 SASR 214 Crisp v The Queen (Unreported, Supreme Court of Tasmania, Cox, Crawford and Zeeman JJ, No 52 of 1990, 19 December 1990)

Edgington v Fitzmaurice (1885) 29 Ch D 459

Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82

Ibbs v The Queen [1988] WAR 91

Michael v Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348

Nydam v The Queen [1977] VicRp 50; [1977] VR 430

Papadimitropoulos v the Queen [1957] HCA 74; (1957) 98 CLR 249

R v Clarence (1888) 22 QBD 23

R v Gallienne [1964] NSWR 919

R v Winchester [2014] 1 Qd R 44

ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, (Publishing Services for the ACT Law Reform Commission, Canberra, 2001), Report No 18

Simon H Bronitt, "Rape and Lack of Consent" (1992) 16 Crim LJ 289

Explanatory Statement, Crimes (Amendment) Ordinance No 5 1985 (ACT), 28 November 1985

Law Reform Commission, Report and Recommendations on Rape and Sexual Offences, (Government Printer, Tasmania, 1982) Report No 31.

Model Criminal Code Officers Committee, in its Report on Chapter 5 "Sexual Offences Against the Person" (Canberra, May 1999)

JH Beale Jnr, "Consent in the Criminal Law" (1894-5) 8 Harvard LR 317

PW Young, The Law of Consent (Law Book Co: Sydney, 1986)

Legal Aid ACT (Defendant)

1. Between November 2013 and December 2014, Billy Bartolomeus Tamawiwy, the accused, used two Facebook accounts, one under the name of Billy Tamawiwy and one under the name of Taylah Edwards. Under the latter, he assumed the identity of a young woman and engaged in messaging with a number of young men.

2. The messages rapidly turned sexual and, in particular, Mr Tamawiwy, posting as Taylah Edwards, made inquiries about the sexual orientation of the recipients of the messages.

3. One of the recipients was SJ and Mr Tamawiwy, as Taylah Edwards, represented that Ms Edwards, although she did not exist, was a member of a bisexual community which had gatherings at which the participants readily engaged in sexual intercourse and other sexual activities.

4. In circumstances I do not need to set out in detail, the messages from the Taylah Edwards' account invited SJ to participate in such activities. Indeed, the messages expressly indicated that Taylah Edwards and what were described as two of her friends, named Emily and Bella, would have sexual intercourse with SJ, but only on certain conditions. In order to induce SJ to comply with the conditions, photographs were posted in the messages from the Taylah Edwards account which purported to be naked pictures of Taylah Edwards and of Emily.

5. The conditions imposed were that SJ was required to engage in sexual activities, including sexual intercourse, with a male whose name was given as Christian. The male was, in fact, Mr Tamawiwy. The Crown's allegation was that Mr Tamawiwy was using the Taylah Edwards Facebook account to seduce young men to have sexual intercourse with him, the inducement being the opportunity to have sexual intercourse later with attractive young women. That was, of course, a false inducement.

6. Although reluctant to do so, SJ did meet Mr Tamawiwy and they engaged in sexual intercourse involving fellatio and penile/anal intercourse. There was no real dispute about the fact that Mr Tamawiwy and SJ had engaged in those activities.

7. It was also said by the Crown that Mr Tamawiwy had used his phone to photograph those activities, in particular the penile/anal intercourse, and videos of that activity were subsequently published in certain messages transmitted through the Taylah Edwards account on Facebook.

8. Having engaged in the activities, SJ then sought to meet Taylah Edwards, but the address he was given was not the address of Taylah Edwards who, of course, did not exist.

9. Later SJ went to the police and made a complaint. Mr Tamawiwy was arrested and charged with a number of offences, including two counts of engaging in sexual intercourse with SJ, without his consent, being reckless as to whether he was consenting, offences against s 54 of the Crimes Act 1900 (ACT), and, in respect of the filming by video of the intercourse, committing an act of indecency in the presence of SJ without his consent, being reckless as to whether he was consenting, an offence contrary to s 60 of the Crimes Act.

10. He pleaded not guilty to these and some other offences. On the first day of the trial, on an indictment containing 14 counts, however, he changed some of his pleas and pleaded guilty to five of the counts on the indictment, which also meant that two alternative counts were resolved, leaving seven counts, including one alternative count and also the three accounts referred to above (at [9]).

11. There was no dispute that SJ had, in fact, consented to the sexual activities in which he engaged with Mr Tamawiwy. The Crown case, however, relied on s 67 of the Crimes Act which provided that, in certain circumstances, consent is negated if it is caused by certain factors.

12. Although one paragraph of s 67(1) of the Crimes Act is relied on, the whole section is set out below, as the interpretation of the relevant provision may depend, at least in part, on the terms of the whole section.

67 Consent

(1) For sections 54, 55 (3) (b), 60 and 61 (3) (b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused -

(a) by the infliction of violence or force on the person, or on a third person who is present or nearby; or

(b) by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or

(c) by a threat to inflict violence or force on, or to use extortion against, the person or another person; or

(d) by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or

(e) by the effect of intoxicating liquor, a drug or an anaesthetic; or

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

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

(h) by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or

(i) by the person's physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or

(j) by the unlawful detention of the person.

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

(3) If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.

13. The relevant paragraph on which reliance is placed is s 67(1)(g), namely that the consent was caused by a fraudulent misrepresentation of a fact. A question has now arisen as to whether the misrepresentation relied on by the Crown falls within the relevant paragraph and so negates the consent.

14. If the consent is not negated then it is accepted that the Crown cannot make out its case on the relevant counts on the indictment. Indeed, Mr J Lawton, who appears for Mr Tamawiwy, has submitted that there is no evidence fit to go to the jury on the relevant three counts, to which I have referred above (at [9]), and that they should be withdrawn from the jury, or the jury directed to acquit the issue.

15. Because, of course, there are not often detailed pleadings in the criminal jurisdiction of this Court, the terms of the misrepresentation were not set out until articulated during the Crown case. The formulation that was accepted by the Crown was as follows: a fraudulent misrepresentation that Taylah Edwards existed as a woman and that she and her two friends would engage in sexual intercourse with SJ, if he had sexual intercourse with a male named Christian, being, in fact, Mr Tamawiwy.

16. The Crown relied also on the fact that the socalled friends of Taylah Edwards - Emily and Bella - did not exist either and that the representation that they existed, and would also have sexual intercourse with SJ, was made prior to the time when SJ engaged in sexual intercourse with Mr Tamawiwy.

17. Mr Lawton submitted that there was no case to answer on the three counts involving this matter because the fraudulent misrepresentation was not of a fact but a promise, namely that Taylah Edwards, Emily and Bella would have sexual intercourse with SJ, if the pre-conditions were met, but that, in any event, the paragraph was not susceptible to such a broad interpretation as would encompass the Crown's proposed formulation.

History of section 67 of the Crimes Act

18. Prior to the enactment of s 67 of the Crimes Act the common law had made provisions for the vitiation of an actual consent to an act of sexual intercourse because of fraud or mistake. There was, however, some judicial reluctance and resistance to this but the extent of any relevant fraud or mistake involved had always been circumscribed.

19. Indeed, in R v Clarence (1888) 22 QBD 23 at 43, Stephen J said that the only cases in which fraud indisputably vitiated consent were cases of fraud as to the nature of the act done and fraud as to the identity of the person by whom it was done. Although that decision was not a case of nonconsensual intercourse but a case of unlawful and malicious infliction of grievous bodily harm, it has been more generally applied including the cases of non-consensual sexual intercourse.

20. In Papadimitropoulos v the Queen [1957] HCA 74; (1957) 98 CLR 249 at 260-1, the unanimous High Court referred to:

... the essential inquiry, namely, whether the consent is no consent because it is not directed to the nature and character of the act. The identity of the man and the character of the physical act that is done, or proposed, seem now clearly to be regarded as forming part of the nature and character of the act to which the woman's consent is directed. That accords with the principles governing the state vitiating apparent manifestations of will in other chapters of law.

21. In that case, the complainant, who spoke little or no English, was taken to the Melbourne Registry Office where the accused applied for a marriage licence, but told the complainant that they had then been married. The complainant, who was unwilling to engage in sexual intercourse outside of marriage, then had sexual intercourse with the accused.

22. The court held that there was no misrepresentation or fraud as to the actual nature and character of the sexual conduct in which the accused and complainant engaged. Nor any deceptive impersonation by the accused that he was a person, such as a husband or partner, with whom the complainant would agree to have sexual activity. Thus, the High Court set aside the conviction and acquitted the accused. One might query why the accused could not be said to have misrepresented that he was the complainant's husband when he was not.

23. The history of the rule in Papadimitropoulos v the Queen since then has been helpfully set out in the judgment of EM Heenan AJA in Michael v Western Australia [2008] WASCA 66; (2008) 183 A Crim R 348 at 415-21; [317]- [333].

24. That rule was regularly applied until there was legislative intervention; in this Territory that came by the introduction of the predecessor to s 67 of the Crimes Act, namely s 92P of that Act, by the Crimes (Amendment) Ordinance (No 5) 1985 (ACT), which section was in the same terms as s 67 and which was renumbered as s 67 by virtue of s 43 of the Crimes Legislation Amendment Act 2001 (ACT), on the republication of the Crimes Act on 7 January 2002.

25. Section 92P of the Crimes Act was not preceded by any apparent policy consideration in the Territory. The Explanatory Statement for the Crimes (Amendment) Ordinance No 5, simply stated that s 92P(1), the predecessor to s 67(1), was "substantially in accordance with the recommendations contained in the Tasmanian Law Reform Commission Report".

26. This is a reference to the Law Reform Commission, Report and Recommendations on Rape and Sexual Offences, (Government Printer, Tasmania, 1982) Report No 31. That Report, however, simply recommended that a provision in terms of clause 88(2) of the Draft Criminal Code of the Northern Territory be adopted. That clause was substantially in the same terms as s 92P(1) of the Crimes Act. It was said by the Law Reform Commission to have been similar to the Draft Bill prepared by the Women's Electoral Lobby.

27. The rationale for the proposed change was explained by the Law Reform Commission at paragraphs [44]-[45] as follows.

1. The Commission recommends the legislative enactment of the objective circumstances [in the proposed provision] which would render an act of sexual intercourse or a sexual act unlawful for the following reasons:

(a) It removes emphasis from the issue of consent and focuses attention upon objective factors of the accused's behaviour rather than his perceptions of the victim's state of mind and the characteristics of the victim. If the rule of consent were minimized in this way, it would no longer be a major component of defence strategies and this should go a considerable way towards easing the experience of the victim in the witness box. The present focus on consent virtually demands that a defence counsel who is doing his job properly must challenge the sexual conduct and personal integrity of the complainant and attempt to present her in the most unfavourable light.

(b) It specifically identifies the behaviour that is proscribed. An extensive, but not exhaustive list of non-consensual situations avoids the problems of a vague generalised definition of consent. Such definitions have caused much confusion and resentment because it is felt that they can be interpreted to exonerate the accused in situations which many women would regard as non-consensual, e.g., where the victim is coerced by threats of public humiliation, by threats of violence to a third party, or by fraud as to some fact not amounting to fraud as to identity of the perpetrator or the nature of the act. There is concern also that only fear of death or grievious [sic] injury will be accepted as sufficient to render a consent invalid. The provision recommended would remove doubts in the area of force and threats of violence (paragraphs (a) and (b)) where the law is vague and extend it in the area of fraud (paragraphs (e) and (f)) threats of public humiliation and extortion (paragraphs (e)) and exploitation of authority or position (paragraph (g)) where it has not gone far enough.

1. The issue of consent is not ousted. It is rather a matter of changed emphasis.

28. It appears that the relevant provision was not inserted in the Northern Territory legislation but a form of the Law Reform Commission's recommendation was introduced in Tasmania in s 2A of the Criminal Code Act 1924 (Tas). This Territory and Tasmania appear to be the only jurisdictions which have accepted the wide form of the provision, despite most other jurisdictions reforming the provisions relating to consent in respect of non-consensual sexual intercourse.

29. As will be seen below, Western Australia may have a wide provision also. This is important to note because it means that authorities from other jurisdictions must be viewed cautiously as they are often dealing with different legislation which is in materially different terms.

30. The terms under which consent is negated or vitiated has been the subject of considerable interest, especially amongst academics and other commentators. Thus the Territory amendment was subject to substantial criticism by the ACT Law Reform Commission in its Report - Sexual Assault (ACT: Canberra, 2001). It appears that the report, printed as No 17, was actually a Report No 18, but nothing turns on that.

31. The Report comments unfavourably on a number of provisions of the section but, in particular, the paragraph relating to fraud and misrepresentation was addressed. The Commission said at 69; [189]:

Some of the other factors listed in subsection (1) are so inadequately delineated that findings of guilty could be obtained in wholly inappropriate cases and absurdity could be avoided only by the absence of complaint or the exercise of prosecutorial discretion. For example, if consent is negated if caused by "a fraudulent misrepresentation of any fact", then the consent of a rock star who has sexual intercourse with a 15 year old may be negated if she assured him that she was over 16. In that event she could be taken to have raped him.

32. No legislative action was taken in respect of the provision criticised by the ACT Law Reform Commission. Section 67 of the Crimes Act remains, in relevant terms, identical to that introduced as s 92P. Given the lack of response to such a significant report to government, I must at least assume that the construction of the terms, namely, a wide view of fraudulent misrepresentation within the section was not unintended or unacceptable.

33. Similarly, the Model Criminal Code Officers Committee, in its Report on Chapter 5 "Sexual Offences Against the Person" (Canberra, May 1999), stated at 49:

As for fraud it is conceded that those kinds of fraud recognised by the common law as negativing consent should appear on the list. However, to mandate the extension of the negation of consent to consent obtained by any type of fraud undermines the seriousness of the offence. The basic offence should not be automatically extended to cover contact that is merely dishonest. To do so would mean that a very serious offence would be committed by mere deceit or trickery:

"The possibilities of misrepresentation are endless, ranging from one spouse's lie that he 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 287).

34. More recently, EM Heenan AJ in Michael v Western Australia, subjected the view that a wide application of the fraudulent behaviour as vitiating consent had to significant scrutiny and criticised it. His Honour said at 432; [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

35. Reforms have been made which have enacted the rule in Papadimitropoulos v The Queen. That rule has been criticised itself as being too narrow and giving no weight to the significance of the acts. As a good exposition, see Simon H Bronitt, "Rape and Lack of Consent" (1992) 16 Crim LJ 289 at 293-8. The author there made some suggestions for reform at 300-1 including a revision of the principle in R v Clarence though perhaps not so widely a reform as has been made in this Territory, Tasmania and apparently Western Australia.

36. The provision in Western Australia the subject of consideration in Michael v Western Australia was in s 319(2)(a) which provided:

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

37. In Michael v Western Australia, EM Heenan AJ said of this provision, at 432-3; [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.

38. This would effectively limit the statutory provision to the situation covered in the rule in Papadimitropoulos v the Queen. It does not appear to give any real meaning to the phrase "any fraudulent means" in the statutory provision. It also appears to be akin the statutory legislation in other jurisdictions which has a specific direction towards the limit of the fraud.

39. His Honour, however, was in dissent in the decision and the majority, Steytler P and Miller JA held, though in somewhat different terms, that the deceit perpetrated by the appellant offender, namely as posing as a police officer, which he was not, to induce the complainants, both prostitutes, to provide sexual intercourse to the appellant for, in one case, a heavily discounted fee and, in the other for no fee, held that the definition of consent was wide enough to encompass that situation.

40. The matter was complicated because, as Steytler P pointed out at 370; [88]:

... 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.

41. His Honour went on to hold that the words of s 319(2)(a) were to be given "a wide operation", not to be read down by the fact that the conduct might give rise to more than one offence. His Honour expressly rejected the notion that the section might be reworked according to the common law rules, pointing out that "The Court is, of course, bound by the legislation enacted by the parliament."

42. Miller JA made a similar point in concluding at 385; [164]-[166]:

1. Whilst the common law of 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 in section 319(2)(a), the reality of consent was, in this case, destroyed by the inducements which the complainants contended were made to them.
2. 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.
3. 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.

43. I was also referred to the position in Queensland. There, the Criminal Code 1899 (Qld), provides in s 348 a meaning of consent as follows:

(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained -

• (a) by force; or
• (b) by threat or intimidation; or
• (c) by fear of bodily harm; or
• (d) by exercise of authority; or
• (e) by false and fraudulent representations about the nature or purpose of the act; or
• (f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.

44. Two things are to be noted about this definition, especially in contrast s 67 of the Crimes Act. In the first place, the section specially defines consent as "consent freely and voluntarily given." Though this is a conventional definition in accordance with the common law (Case Stated by DPP (No 1 of 1993) [1993] SASC 3896; (1993) 59 SASR 214 at 220). It is, nevertheless, a statutory expression of the meaning and it is clear from the following subsection that it be given a primacy.

45. The second matter is that the false or fraudulent misrepresentation is limited to the "nature or purpose of the Act", which is more restrictive than the Western Australian, the Territory or the Tasmanian provisions.

46. Indeed, it is close to the common law position, a view perhaps reinforced by s 348(2)(f), which is the other aspect of the rule in Papadimitropoulos v the Queen.

47. In this context, my attention was drawn to a decision of the Queensland Court of Appeal, R v Winchester [2014] 1 Qd R 44 at 67-8; [83] when Muir JJA, with whom Chesterman JA and Fryberg J generally agreed, cited with approval the passage I have quoted above (at [34]) from EM Heenan AJA in Michael v Western Australia.

48. Given the very different statutory provision, I am not satisfied that this decision is of assistance in the construction of s 67 of the Crimes Act.

49. I do note, however, that Muir JA, in rejecting the summing up of the trial judge did point, at 68; [86], to the need for a wide consideration of the circumstances to ensure that consent is in fact free and voluntary in the following terms:

The direction deflected the jury from giving due consideration to factors such as the surrounding circumstances, the complainant's age, maturity, mental acuteness and her psychological and emotional state which might bear on whether a consent, which on the face of it and putting to one side the evidence of threats and violence was freely and voluntarily given, was not in fact so given.

50. There seems no other authority of any significant assistance. There is a brief reference to the issue in Crisp v The Queen (Unreported, Supreme Court of Tasmania, Cox, Crawford and Zeeman JJ, No 52 of 1990, 19 December 1990) at p 9, which may suggest a somewhat narrower view of fraud, but it does not really address the issue in a way that would permit any conclusion to be drawn.

51. I do note, however, that, in R v Gallienne [1964] NSWR 919, the Court of Criminal Appeal of New South Wales accepted that s 66 of the Crimes Act 1900 (NSW), which proscribed sexual intercourse with a woman, there called "illicit carnal connection", by 'any false pretences, false representations or other fraudulent means" was apt, were it to have applied, to have criminalised the conduct of the accused in Papadimitropoulos v The Queen, suggesting that the terms of the section, similar to those in s 67(1)(g), were of wide import, at least wider than the common law. Indeed, EM Heenan AJA in Michael v Western Australia at 416; [320], accepted that the acts of the appellant, which his Honour did not consider constituted rape, even under the extended definition of consent, may well have been successfully prosecuted in New South Wales under that provision.

52. It is to be noted that the offence under s 66 of the NSW Crimes Act was not a minor offence; the maximum penalty was 14 years imprisonment.

53. There is no doubt that, in the criminal law, fraud can vitiate consent, as JH Beale Jnr wrote in "Consent in the Criminal Law" (1894-5) 8 Harvard LR 317 (quoted by PW Young in The Law of Consent (Law Book Co: Sydney, 1986) at 80, but inaccurately with an erroneous and unfortunate "not" included), when referring to the equitable maxim "Fraud vitiates consent":

Fraud, it is true, does often vitiate consent but this is a statement as to the effect of consent not as to its existence. Fraud does not negative consent; consent exists however acquired ....

54. It is, therefore, no surprise that the legislation should approach the issue in this way.

55. Based on the majority view in Michael v Western Australia, I see no reason to impose a restrictive or common law view on the provisions of s 67(1)(g). It seems to me that the legislative history and plain words of the provision require a wide interpretation. I do not, in this case, have to explore the precise extent of that interpretation.

56. Mr Lawton submitted that I should approach the issue in rather the same manner as one approaches the test of the negligence required for the crime of manslaughter, as explained in Nydam v The Queen [1977] VicRp 50; [1977] VR 430 at 445. The negligence amounts there to such a great falling short of the standard of care that a reasonable person would have exercised, that the doing of the act merited criminal punishment.

57. Such an approach would certainly address some of the problems identified by EM Heenan AJA in Michael v Western Australia and other commentators but, in the short time I have had to consider the matter, I do not consider that it is appropriate that I should so hold.

58. On the other hand, this is not a case where the fraudulent misrepresentation is of the kind referred to by EM Heenan AJA. It is not a promise or assertion that is disproportionate to the seriousness of the offence. It was a serious deception, an elaborate hoax designed to gain sexual satisfaction to Mr Tamawiwy from SJ, who clearly was reluctant, perhaps, as described in Ibbs v The Queen [1988] WAR 91 at 101, 'hesitant, reluctant, begrudging or tearful", which may, in itself, not amount to a free and voluntary consent in any event. I was, however, not addressed on that and whether that should be part of my direction to the jury.

59. While there may, in an appropriate case, be a need to circumscribe the otherwise apparently boundless width of any relevant fraudulent misrepresentation, this is not that case in my view.

60. Mr Lawton also submitted that the offer of sexual intercourse with non-existent Taylah Edwards and Emily and Bella, was a promise and so not a representation as to a fact, as required by the section.

61. There is no doubt that a promise is not necessarily misleading because it is not fulfilled. See Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82 at 88.

62. If the promise contains an implied representation of present fact, such as that the maker believes that something is true, then, if that representation is false, the representation may be a fraudulent misrepresentation. See Bill Acceptance Corporation Ltd v GWA Ltd [1982] FCA 269; (1983) 1 IPR 496 at 500.

63. Another example would be a promise which embodies a statement about the maker's present intention which, if false, would constitute a misrepresentation. As Lord Justice Bowen said in Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483, "the state of a man's mind is as much a fact as the state of his digestion".

64. In this case, the representation consisted of what were capable of being implied representations of the following matters that may be found reasonably by a jury to be existing facts:

(a) that there was a young woman named Taylah Edwards;

(b) that she had two young woman friends, Emily and Bella;

(c) these women were members of a community which held functions at which the participants engaged in sexual activity with each other;

(d) such a function was to be held in the near future and to which SJ could be invited;

(e) these three young women were presently willing to have sexual intercourse with SJ if he fulfilled the condition of having sexual intercourse or other sexual activity with Mr Tamawiwy, who was introduced as Christian.

65. If the jury were to find that these facts had been represented by Mr Tamawiwy, through his messages to SJ on the Facebook account of Taylah Edwards, then the evidence and admissions made by Mr Tamawiwy make it clear that these facts are false. Thus, given that Mr Tamawiwy, acting as Taylah Edwards, made them, they are capable of being fraudulent misrepresentations of fact, though that is, of course, a finding that has to be made by the jury.

66. In those circumstances, there is evidence on which a jury, properly instructed, could find that Mr Tamawiwy made fraudulent misrepresentations of fact.

67. The evidence of SJ, if accepted, was capable of founding a finding that he was induced to have sexual intercourse with Mr Tamawiwy by these fraudulent misrepresentations of fact. Accordingly, the application for a direct acquittal on these counts must be dismissed.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.