FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
PGA APPELLANT
AND
THE QUEEN RESPONDENT
PGA v The Queen [2012] HCA 21 30 May 2012 A15/2011
ORDER
Appeal dismissed.
On appeal from the Supreme Court of South Australia
Representation
D M J Bennett QC with P F Muscat SC and A L Tokley for the appellant (instructed by Legal Services Commission (SA))
M G Hinton QC, Solicitor-General for the State of South Australia with K G Lesses for the respondent and intervening on behalf of the Attorney-General for the State of South Australia (instructed by Director of Public Prosecutions (SA))
S J Gageler SC, Solicitor-General of the Commonwealth with G A Hill intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
J D McKenna SC with G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
PGA v The Queen
Criminal law – Rape – Husband's immunity from prosecution for rape of wife – Presumption of consent to intercourse by wife in marriage – Appellant charged in 2010 with two counts of rape contrary to s 48 of Criminal Law Consolidation Act 1935 (SA) – Alleged rapes committed in 1963 against then spouse – Legislative amendments enabled institution of proceedings despite lapse of time – Elements of offence of rape in 1963 supplied by common law – Whether in 1963 common law of Australia presumed consent by wife in marriage.
Precedent – Judicial method – Development of common law – Whether presumption of consent by wife in marriage was part of common law of Australia – Whether statement of common law in R v L (1991) 174 CLR 379 applied to events alleged to have occurred in 1963.
Words and phrases – "common law", "marital exemption", "marital immunity", "presumption of consent", "rape", "retrospective application".
FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND KIEFEL JJ. The appellant and his wife, the complainant, were lawfully married in South Australia on 1 September 1962. At the relevant times in 1963 they remained lawfully married and were cohabiting in South Australia as husband and wife at the house of her parents; there were in force no legal orders or undertakings of any kind which affected their matrimonial relationship.
The charges
On 5 July 2010, by information of the Director of Public Prosecutions of South Australia, the appellant was charged for trial in the District Court of South Australia with two counts of carnal knowledge, with four counts of assault occasioning actual bodily harm and, what is immediately relevant for this appeal, with two counts of rape (counts 3 and 5) contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) ("the
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
PGA v The Queen [2012] HCA 21
Case
[2012] HCA 21
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by PGA against the conviction for two counts of rape. The alleged offences occurred in 1963 against the appellant's then spouse. The central dispute revolved around whether the common law of Australia in 1963 presumed a wife's consent to intercourse within marriage, thereby creating an immunity for a husband from prosecution for rape of his wife.
The legal issues before the Court were twofold: first, whether the common law of Australia in 1963 included a presumption of marital consent to intercourse, often referred to as the "marital exemption" or "marital immunity"; and second, whether the common law as articulated in *R v L* (1991) 174 CLR 379, which rejected such a presumption, applied retrospectively to conduct alleged to have occurred in 1963.
The Court reasoned that the historical basis for the presumption of marital consent, as articulated by Hale in the 17th century, was tied to the nature of marriage at that time, when it was considered a virtually indissoluble union. However, the Court noted that by the 19th century, and certainly by the mid-20th century, attitudes towards marriage had evolved significantly, with divorce becoming more accessible. This evolution in the understanding of marriage as a contract that could be terminated undermined the reasoning upon which the marital exemption was founded. The Court implicitly rejected the notion that the common law in 1963 retained an absolute presumption of consent, particularly in light of the changing social and legal landscape surrounding marriage.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND KIEFEL JJ
(dissent)
HEYDON J
Pressure for reform of legislation respecting divorce was, however, maintained, particularly in the more populous colonies of New South Wales and Victoria[83], and eventually succeeded. In Victoria The Divorce Act 1889 provided extended grounds for divorce[84]. Advocates of the women's movement in New South Wales were able to press for further liberalisation of the laws, despite the opposition of the churches[85]. The Divorce Amendment and Extension Act 1892 (NSW) was expressed in terms similar to those of the Victorian Act. The extended grounds gave colonial women greater access to divorce than their contemporaries in the United Kingdom.[83]See the account given by Finlay, To Have But Not to Hold, (2005), Ch 3.[84]Which included adultery, desertion for a period of three years and upwards, habitual drunkenness, habitual cruelty to a wife, conviction for attempt to murder a wife, conviction for having assaulted a wife with intent to cause grievous bodily harm, or repeated assaults on a wife: The Divorce Act 1889 (Vic), s 11.[85]Grimshaw et al, Creating a Nation, (1994) at 172.Conclusions What was the immediate significance of these 19th century legislative measures for the continued vitality of the reasoning upon which Hale in the 17th century had based his proposition respecting "rape in marriage"? In answering that question it is convenient first to repeat what was said by the Supreme Court of New Jersey in State v Smith[86] as follows:"We believe that Hale's statements concerning the common law of spousal rape derived from the nature of marriage at a particular time in history. Hale stated the rule in terms of an implied matrimonial consent to intercourse which the wife could not retract. This reasoning may have been persuasive during Hale's time, when marriages were effectively permanent, ending only by death or an act of Parliament[87]. Since the matrimonial vow itself was not retractable, Hale may have believed that neither was the implied consent to conjugal rights. Consequently, he stated the rule in absolute terms, as if it were applicable without exception to all marriage relationships. In the years since Hale's formulation of the rule, attitudes towards the permanency of marriage have changed and divorce has become far easier to obtain. The rule, formulated under vastly different conditions, need not prevail when those conditions have changed."To that may be added the statement in that case[88]:"If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage 'contract', may she not also revoke a 'term' of that contract, namely, consent to intercourse?"In similar vein is the statement made from the New South Wales Supreme Court bench by Sir William Windeyer in 1886, in which he regretted that while the State regarded marriage as a civil contract and in this case the contract had been destroyed by the husband "having done his best to degrade you", by reason of the then limited grounds of divorce then available to her in New South Wales, she had no redress[89].[86]426 A 2d 38 at 42 (1981).[87]Clark, The Law of Domestic Relations in the United States, (1968) at 280‑282.[88]426 A 2d 38 at 44 (1981).[89]Bennett, "The Establishment of Divorce Laws in New South Wales", (1963) 4 Sydney Law Review 241 at 248.