Attorney-General for the State of South Australia v Lord

[1991] HCATrans 79

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A3 of 1991

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE

STATE OF SOUTH AUSTRALIA

Applicant

and

MARK LORD

Respondent

Application for removal of

cause pursuant to section 40

of the Judiciary Act 1903

MASON CJ DAWSON J

TOOHEY J

Lord 1 15/3/91

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1991, AT 9.34 AM

Copyright in the High Court of Australia
MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS C.F. SARRE,

for the applicant (instructed by the Crown

Solicitor for South Australia).

MR G.D. WENDLER:  I appear with MR S.H. MacFARLANE and

MR N.J. RAINFORD for the respondent. (instructed by

the Legal Services Commission)

MASON CJ:  Mr Solicitor.

MR DOYLE: If the Court pleases, this application under

section 40 is brought to move into the Court so

much of proceedings on an information in the

Supreme Court of South Australia as involved the

question which is set out at page 16 of the book

and that is, in short, whether section 73(3) of the

Criminal Law Consolidation Act is invalid by reason

of inconsistency, putting it broadly, with the

Family Law Act or The Marriage Act.

The information, Your Honours, is at page 1

and charges the offence of rape. In South

Australia, Your Honours, there is an expanded

definition of sexual intercourse which I will not

go to in the section of the Act, but it is expanded

to include the Act referred to in the particulars

of the offence. The South Australian Act has a

provision in it, section 73(3), which provides -

that is the Criminal Law Consolidation Act - that:

No person shall, by reason only of the

fact that he is married to some other person,

be presumed to have consented to sexual

intercourse with that other person.

So again, putting it broadly, it appears to remove
the common law presumption of consent to

intercourse arising from marriage. There is a

limitation on that in section 73(5) which provides

that:

Notwithstanding the foregoing provisions

of this section, a person shall not be
convicted of rape ..... unless the alleged

offence -

is associated with certain circumstances that I do

not need to go into for present purposes.

Your Honours will see, looking at the

information, that it charges the offence of rape
and the particulars are that the accused had sexual
intercourse with a woman, his wife, without her

consent.

Lord 2 15/3/91

When the matter came on for trial the

defendant, apparently by way of motion to quash the

indictment, said that section 73(3) in particular

was invalid because it was inconsistent either with

section 114(2) of the Family Law Act which enables

marital obligations, or more generally with the	the court to make an order relieving the party from the basis, so the argument seemed to be, that those two pieces of legislation cover the field of
relationships between husband and wife and cover them in a way which means that it would be
inconaistent with them for the State by legislation to step into that area and provide another means
whereby the presumption of consent is removed;
that is, a means other than an order made by the
Family Court or as a result of some proceedings under the Family Law Act.

So, Your Honours, that gave rise to an issue

of inconsistency and it is to have that issue

resolved that this application is brought.

Your Honours might want to know why it is that the

matter is being removed to the High Court at this

stage rather than - - -

MASON CJ: Well, I imagine, Mr Solicitor, it is because of

doubts that exist as to the possibility of bringing

the matter to this Court by any other means.

MR DOYLE:  Yes, Your Honour, there are problems of a

procedural nature and, putting it in a nutshell, if the trial judge quashed the indictment in fact that

would be under the procedures available in South

Australia, not reviewable in any way, and so we would have the unsatisfactory situation of the

point being decided by a single judge and open to

challenge only by the Crown, in effect, presenting

a fresh information in some other matter and asking

another judge to decide differently. And so,

procedurally, this appears to be the only way of

resolving the matter satisfactorily.

MASON CJ:  How long is it thought that argument on the point

would take in this Court?

MR DOYLE:  The Crown are being very optimistic at the lower

levels, as Your Honours may have seen from the
transcript, and we have said an hour or two and

perhaps half a day or so, Your Honour.

MASON CJ:  Do you think it would take longer to explain the

point here?

MR DOYLE:  Yes, Your Honour, we are very quick in South

Australia.

Lord 3 15/3/91

MASON CJ:  I was going to ask you one thing, Mr Solicitor,

that is this: at page 14 of the application book -

I think it was page 14 - the case was to be stood

over, what happened after the hearing before the

judge?

MR DOYLE: It is still, Your Honour, stood over. In other

words, the trial has not begun and the matter is

still where it was before the judge; despite what

was said that day nothing more has happened by way

of proceedings on the information.

MASON CJ:  Yes,- very well.

MR DOYLE: If the Court pleases.

MASON CJ:	Mr Wendler.
MR WENDLER:	If the Court pleases, I do not have anything to

say other than I support the application for

removal.

MASON CJ:  In those circumstances the Court can make an

order as asked, removing the question into this

Court.

MR WENDLER: If the Court pleases.

AT 9.40 AM THE MATTER WAS ADJOURNED SINE DIE

Lord 4 15/3/91