High Court of Australia
(ure
(Bien 40h a Pr (90 eB as
Crim 170 (1993) 30) Be B6Al 2001) 128, 98 C.L.R.] OF AUSTRALIA.
[HIGH COURT OF AUSTRALIA.]
PAPADIMITROPOULOS . 3 3 : APPLICANT 3 AND
THE QUEEN . E ei 5 ' 5 i RESPONDENT.
ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF VICTORIA.
Criminal Law—Rape—Ingredients of offence—Consent of prosecutrix—Given under belief that she was married to accused—Belief fraudulently induced by accused— Whether consent vitiated so as to make accused guilty of rape—Crimes Act 1928 (No. 3664) (Vict.), #. 40.
Rape is carnal knowledge of a woman without her consent. Carnal know- ledge is the physical act of penetration. It is the consent to such physical act of penetration which is in question upon an indictment for rape. Such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. Once the consent is comprehending and actual, the inducing causes cannot destroy its reality and leave the man guilty of rape.
Where a woman consented to sexual intercourse under the belief, fraudu- lently induced by the man, that she was married to him,
Held, that the man was not guilty of rape.
Decision of the Court of Criminal Appeal of Victoria reversed.
Appiication for leave to appeal from the Court of Criminal Appeal of Victoria.
John Papadimitropoulos was charged with that at Fitzroy in the State of Victoria between 13th and 19th June 1956 he had carnal knowledge of Dina Karnezi without her consent. He pleaded not guilty and was tried before the Supreme Court of Victoria by Gavan Duffy J. and a jury of twelve men. The jury returned a verdict of rape with mitigating circumstances and the trial judge sentenced the accused to be imprisoned for four years.
H. C. oF A.
1957. Ww
MELBOURNE, Oct. 24.
Sypney, Nov. 18.
Dixon C.J., McTiernan, 'Webb, Kitto and Taylor JJ.
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