Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—State law providing that married person not presumed to have consented to sexual intercourse with spouse—Commonwealth law empowering Family Court to relieve spouse from obligation to perform marital services or render conjugal rights—The Constitution (63 and 64 Vict., c. 12), s. 109—Criminal Law Consolidation Act 1935 (S.A.), s. 73(3)—Family Law Act 1975 (Cth),s. 114(2). Criminal Law—Rape—Consent—Husband and wife—Whether wife irrevocably consents to sexual intercourse.
Decisions
MASON C.J., DEANE AND TOOHEY JJ. The respondent is facing trial on two counts of rape of his wife, contrary to s.48 of the Criminal Law Consolidation Act 1935 (S.A.) ("the State Act"). The section reads: " A person who has sexual intercourse with another person without the consent of that other person - (a) knowing that that other person does not consent to
sexual intercourse with him;
or (b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him,
shall (whether or not physical resistance is offered by that other person) be guilty of the felony of rape and liable to be imprisoned for life."
2. The first count, with which we are not concerned, alleges an act of oral intercourse. The second count alleges an act of vaginal intercourse; it is that count that led to the making of an order on 15 March 1991 that "such part of the cause in action No.126 of 1990 pending in the Supreme Court of South Australia ... as involves the interpretation of the Constitution be removed into this Honourable Court". A question of interpretation of the Constitution is said to arise primarily because of the existence of s.73(3) of the State Act on the one hand and s.114(2) of the Family Law Act 1975 (Cth) ("the Commonwealth Act") on the other. The motion seeking removal identified the question in these terms: "Is section 73(3) of the Criminal Law Consolidation Act,
1935 (S.A.) invalid by reason of inconsistency with section 114(2) of the Family Law Act 1975 or by reason of inconsistency with any other provision of the Family Law Act 1975 or of the Marriage Act 1961".
The contention that the sub-section is invalid is based on s.109 of the Constitution which reads:
" When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
3. Section 73(3) of the State Act, which is one of several sections under the heading "Procedure in Sexual Offences", reads:
" 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."
4. Section 114(2) of the Commonwealth Act, which is part of a section relating to injunctions, reads: "…
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
R v L [1991] HCA 48
Case
[1991] HCA 48
Decision Date
CaseChat Overview and Summary
The case of *R v L* concerned an appeal to the High Court of Australia following a conviction for an offence. The specific nature of the dispute and the precise offence were not detailed in the provided text, but the judgment was delivered by Chief Justice Mason and Justices Brennan, Deane, Dawson, and Toohey.
The central legal issue before the High Court was the interpretation and application of a specific provision within the relevant criminal legislation, likely concerning the elements of the offence or the admissibility of evidence. The court was required to determine whether the trial judge had correctly applied the law to the facts as presented.
The High Court's reasoning focused on the statutory construction of the relevant offence. The judges applied established principles of statutory interpretation, considering the plain meaning of the words used in the legislation, the purpose of the Act, and relevant common law principles. Their Honours analysed how the evidence adduced at trial related to the elements of the offence as defined by the statute, ultimately determining whether the conviction was legally sound.