R v P, GA

Case [2010] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Case Stated)

Question of Law Reserved NO 2 OF 2010

R v P, GA

[2010] SASCFC 81

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)

23 December 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT - PRESUMPTION OF

PROCEDURE - COURTS AND JUDGES GENERALLY - PRECEDENTS - PRECEDENTS GENERALLY - DEVELOPMENT OF COMMON LAW

Case stated from the District Court – accused charged with two counts of the rape of his wife – alleged offences occurred in 1963 – whether the offence of rape by one lawful spouse of another was an offence in 1963 – whether a statutory provision precludes the Court from identifying the elements of the offence in accordance with the common law – effect of a mistaken understanding by Parliament of the state of the common law when it enacts a statutory measure changing that part of the common law - whether irrebuttable presumption of consent to sexual intercourse between married couples in 1963 – effect of the High Court’s decision in The Queen v L (1991) 174 CLR 379 on the common law in 1963 - whether any change to the common law should be treated only as prospective in its effect – defendant liable to be found guilty of the offences of rape.

Criminal Law Consolidation Act 1935 (SA) s 5, s 46, s 47, s 48, s 48(1), s 48(2), s 72A, s 73, s 73(3), s 73(5) (repealed), s 76a (repealed), s 350(2)(b); Criminal Law Consolidation Act Amendment Act 1952 (SA); Criminal Law (Sexual Offences) Amendment Act 1975 (SA) s 6; Criminal Law Consolidation Act Amendment Act 1976 (SA); Criminal Law Consolidation Act Amendment Act 1985 (SA); Criminal Law Consolidation (Rape) Amendment Act 1992 (SA); Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act 2003 (SA); Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA); Family Law Act 1975 (Cth) s 114(2); Sexual Offences (Amendment) Act 1976 (UK) s 1(1); War Crimes Act 1945 (Cth); Criminal Code 1913 (WA) s 325; Crimes (Sexual Offences) Act 1980 (Vic); Crimes Act 1958 (Vic) s 44, s 62(2); Crimes (Sexual Assault) Amendment Act 1981 (NSW); Crimes Act 1900 (NSW) s 61A(4), s 63, s 92R (repealed); Crimes (Amendment) Ordinance (No. 5) 1985 (ACT); Criminal Code, Evidence Act and Other Acts Amendment Act 1989 (Qld); Criminal Code Act 1899 (Qld) s 347; Rape Law Reform (No. 2) Act 1985 (NZ); Crimes Act 1961 (NZ) s 128(4); Criminal Justice and Public Order Act 1994 (UK); The Criminal Code (Tas) s 185; Criminal Code Amendment Act (No. 3) 1994 (NT); Criminal Code Act 1983 (NT) s 192; Criminal Law Consolidation Act…

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R v P, GA [2010] SASCFC 81
Case
[2010] SASCFC 81
Decision Date

CaseChat Overview and Summary

This matter came before the Full Court of South Australia by way of a case stated from the District Court. The defendant was charged with two counts of rape, alleged to have occurred in 1963, against his wife. The central dispute concerned whether, at the time of the alleged offences, the marital relationship between the defendant and the complainant precluded a charge of rape, specifically whether there was an irrebuttable presumption of consent to sexual intercourse between married couples in 1963.

The court was required to determine two primary legal issues. Firstly, whether the offence of rape by a lawful spouse of another was an offence known to the law of South Australia in 1963. Secondly, the court had to consider the effect of the High Court's decision in *The Queen v L* (1991) on the common law as it stood in 1963, and whether any change to the common law should be treated as prospective only. This also involved considering whether a statutory provision could preclude the court from identifying the elements of the offence according to the common law, particularly in light of a potential mistaken understanding by Parliament of the existing common law.

The court reasoned that it was bound to apply the statements made by the High Court in *The Queen v L*, even if those statements were not strictly binding as obiter dicta, because they were not essential to the decision in that case. The court held that it was not its role to determine that the common law could be changed with prospective effect only, as this would represent a significant alteration to the courts' function in developing the common law. Consequently, the court concluded that the defendant was liable to be found guilty of the charges of rape.

The reserved question was answered in the affirmative. The defendant is liable at law to be found guilty of the offences of rape charged in counts 3 and 5 of the Information, notwithstanding that at the time of the alleged offence he was married to the alleged victim and cohabiting with her. The marriage did not give rise to any presumption, irrebuttable or otherwise, of consent on the part of the wife to sexual intercourse with her husband.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

My conclusion is that this Court must apply the statements made by members of the High Court in The Queen v L, even though they are not strictly binding, because they were not necessary for the decision of the matter before the Court. It is not for this Court to decide that a court can and should change the common law with prospective effect only. As the discussion by their Lordships in Spectrum indicates, to so decide would be to make a major change to the role of the courts in Australia charged with the development of the common law. Conclusion I have dealt with the submissions advanced by the parties. I have not found it necessary to refer specifically to the submissions by the Director. My rejection of the submissions advanced by Mr Muscat reflects the submissions advanced by Mr Hinton for the Director. I would answer the reserved question as follows: The defendant is liable at law to be found guilty of the offences of rape charged in count 3 and count 5 of the Information, notwithstanding that at the time of the alleged offence he was married to the alleged victim and was cohabiting with her, the marriage giving rise to no presumption of consent on her part to intercourse with her husband, and giving rise to no irrebuttable presumption to that effect. GRAY J:Introduction On 7 July 2010, a question of law was reserved for the consideration of the Full Court by a District Court Judge in a criminal proceeding antecedent to trial. In accordance with the practice of the Court, the Judge prepared a case stated. That case stated is relevantly in the following terms:[P,GA] the defendant is charged on Information dated 5 July 2010. …The trial of the defendant was scheduled to commence in the District Court of South Australia on 5 July 2010. …On 5 and 6 July 2010, prior to the commencement of the defendant’s trial, I heard an application by the defendant for a permanent stay of the proceedings on the ground that they constituted an abuse of process. On 6 July 2010 I dismissed that application.[1] [1] The District Court Judge reserved to the defendant the right to re-agitate the stay application following the determination of the question of law reserved.The defendant also made an alternative application that if the proceedings were not permanently stayed as an abuse of process, that the proceedings on Counts 3 and 5 of the Information be permanently stayed as they were foredoomed to failure. The defendant alternatively sought an order quashing Counts 3 and 5 on the ground that they did not charge an offence known to the law.Counts 3 and 5 of the Information charge the defendant with allegedly committing offences of rape in 1963, contrary to section 48 of the Criminal Law Consolidation Act, 1935 (SA).Counts 3 and 5 of the Information allege the offences involved non-consensual penile-vaginal sexual intercourse.The alleged victim of the offences charged in Counts 3 and 5 of the Information is [P,G].The defendant and [P,G] were lawfully married in South Australia on 1 September 1962.At the time of the alleged commission of the offences charged in Counts 3 and 5 of the Information, the defendant and [P,G] were lawfully married and were cohabiting as husband and wife at the home of [P,G]’s parents.At the time of the alleged commission of the offences charged in Counts 3 and 5 of the Information there were no legal orders or undertakings of any kind in existence which affected the marital relationship between the defendant and [P,G].The defendant submits that in the circumstances outlined above, he could not, as a matter of law, be properly convicted of the offences charged in Counts 3 and 5 of the Information. On 5 July 2010 the Director of Public Prosecutions applied through the prosecutor for the reservation of a question of law for the consideration and determination of the Full Court.I now reserve for the consideration and determination of the Full Court the following question of law:Was the offence of rape by one lawful spouse of another, in the circumstances as outlined above, an offence known to the law of South Australia as at 1963?

Ratio Decidendi

Legal Principle Established

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