Papadimitropoulos v The Queen: Legal Significance of the Judgment

The case of Papadimitropoulos v The Queen involved a rape case where the accused was found guilty but later acquitted on the basis of fraud vitiating consent. The judgment clarified the moral differences between marital intercourse and sexual relationship without marriage. The consent of a woman for carnal knowledge requires an insight regarding what is set to take place which involve the identity of man as well as the character of what is going to occur.

Criminal Law
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Table of Contents
Facts of Case....................................................................................................................................3
Legal issues raised in the court........................................................................................................3
Cases relied on in judgment.............................................................................................................4
Decision of Court.............................................................................................................................4
Legal significance of judgment.......................................................................................................5
References........................................................................................................................................5
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Facts of Case
The appellant Papadimitropoulos was found guilty of rape, for which he pleaded not guilty. He
was tried before the Supreme Court of Victoria by Gavan Duffy J. along with a jury of twelve
men. A verdict of rape was provided by the jury returned with justifying situations and the trial
judge sentenced the accused to be imprisoned for four years (Austlii, 1958). Papadimitropoulos
to plead against the conviction sentence applied for leave and when the application was heard
before the Court of Criminal Appeal of the State of Victoria, the application was refused. Again
he wanted special leave to appeal to the High Court of Australia.
Papadimitropoulos and Dina Karnezi applied for the marriage registry at the registry office of
Fitzroy in Victoria. They signed a card and a form that was to be filled by officer using details
provided by the applicants. The card was a notice of intention regarding the occurrence of
marriage while form was an information paper regarding details for registration and completing
the marriage certificate (Hongkong Case Law, 2016). They lived with each other for a short
period of time during which, they had sexual intercourse. After some days, he went to Sydney
leaving the girl alone and asked for her forgiveness in a letter. He mentioned that he wanted to
marry her but changed his mind after hearing about bad accounts of her prior reputation and
character.
Legal issues raised in the court
The legal authorities were restricted to fraud being the essential nature of act of intercourse. The
respondent provided her consent to intercourse believing it to be the marital intercourse, which
was actually, extra-marital. However, there is no difference in the nature of act in both the
perspectives that would vitiate the provided consent, it must arise from the nature of act itself.
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The Solicitor-General for the State of Victoria claimed that it was not a fraud vitiating consent,
instead there was no consent to the carnal knowledge charged against the appellant. The
respondent gave her consent to an act of marital intercourse not of fornication
(Papadimitropoulos v The Queen , 1957).
Cases relied on in judgment
Gavan Duffy J. focused on the point that rape means to have carnal knowledge of a woman
without her approval but according to law, if a woman, believing the accused to be her husband,
consented in sexual intercourse and would not have consented otherwise, it would not be
considered as consent at all. Furthermore, the accused represented her that they were married
with the intention of persuading her to consent to sexual intercourse with him as her husband
(Smith, 2014).
The actual consent to an act of sexual intercourse cannot be considered as a consent because it is
taken by fraud or mistake. In R. v. Lambert, the judge stated that carnal knowledge is just a
physical penetration, however, there could be no consent even to that without perception of what
is about to occur.
Decision of Court
On application to the Full Court of the Supreme Court, the opinion of the court divided, where,
Lowe and O’Bryan JJ. opined that the direction to the jury was right and it was the decision of
the jury to find that the consent of the woman was vitiated by fraud and hence could not be
considered as her consent (ReachOut Australia , 2018). The decision of the majority of Full
Court extended this beginning beyond the identity of physical act and instant conditions that
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influenced its nature to a precursor that induced cause i.e. existence of valid marriage. When the
woman provides its consent knowingly and understanding what is going to happen, the inducing
causes cannot deny its actuality and the man cannot be held guilty of rape. On this basis, the
application for special leave granted and the conviction quashed.
Legal significance of judgment
The rape, as capital offence, was defined appropriately that when it involves evil conduct, it
resembles to several aspects of crimes and deserve punishment. The judgment of the Full Court
clarified the moral differences between marital intercourse and sexual relationship without
marriage as the respondent in this case never intended to consent to the later relationship (U.S.
Department of Justice, 2018). In this case, the jury must have considered wicked and cruel
conduct by the applicant because it was not enough to establish that he committed rape. The
consent of a woman for carnal knowledge requires an insight regarding what is set to take place
which involve the identity of man as well as the character of what is going to occur.
References
Austlii. (1958). Case Notes. Retrieved from Austlii.edu.au:
http://classic.austlii.edu.au/au/journals/MelbULawRw/1958/23.pdf
Hongkong Case Law. (2016). R. v. Lau Chun Hon. Retrieved from Hongkongcaselaw.com:
https://www.hongkongcaselaw.com/category/court-of-australia-in-papadimitropoulos-v-
r-1957-98-c-l-r-249-considered/
Papadimitropoulos v The Queen , 170 (High Court of Australia 1957).
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ReachOut Australia . (2018). What is sexual assault? Retrieved from Au.reachout.com:
https://au.reachout.com/articles/what-is-sexual-assault
Smith, D. D. (2014). Can Reckless Abuse of Authority Amount to Rape?: Gillard v The Queen.
Retrieved from Unimelb.edu.au:
https://blogs.unimelb.edu.au/opinionsonhigh/tag/papadimitropoulos-v-the-queen-1957-
hca-74/
U.S. Department of Justice. (2018). Sexual assault. Retrieved from Justice.gov:
https://www.justice.gov/ovw/sexual-assault
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