R v P, GA - [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Criminal Law Consolidation Act 1935 (SA) s 5, s 46, s 47, s 48, s 48(1), s 48(2), s 72A, s 73, s 73(3), s 73(5) (repealed), s 76a (repealed), s 350(2)(b); Criminal Law Consolidation Act Amendment Act 1952 (SA); Criminal Law (Sexual Offences) Amendment Act 1975 (SA) s 6; Criminal Law Consolidation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 Amendment Act 1981 (SA), referred to.
The Queen v L (1991) 174 CLR 379, applied.
The Queen v Pinder (1989) 155 LSJS 65; Birmingham Corporation v West Midland Baptist (Trust) Association (Inc) [1970] AC 874; CSR Limited v Eddy (2005) 226 CLR 1; S v Her Majesty's Advocate [1989] SLT 469; Regina v R [1992] 1 AC 599; R v Petroulias (2005) 62 NSWLR 663; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501; Ha v State of New South Wales (1997) 189 CLR 465; Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; In re Spectrum Plus Ltd (In Liquidation) [2005] 2 AC 680; R v Brown (1975) 10 SASR 139; R v Sherrin (No 2) (1979) 21 SASR 250; R v McMinn [1982] VR 53; R v C (1981) 3 A Crim R 146; R v Clarence (1889) LR 22 QBD 23; R v Miller [1954] 2 QB 282; R v Clarke [1949] 2 All ER 448; R v O'Brien [1974] 3 All ER 663; Canada (Attorney General) v Hislop [2007] 1 SCR 429; Chamberlains v Sun Poi Lai [2007] 2 NZLR 7; Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, discussed.
Inland Revenue Commissioners v Dowdall, O'Mahoney & Co Ld [1952] AC 401; Honeywood v Munnings (2006) 67 NSWLR 466; The Queen v Howe (1958) 100 CLR 448; Viro v The Queen (1978) 141 CLR 88; Farah Constructions Pty Limited v Say-Dee Pty Ltd (2007) 230 CLR 89; John v Commissioner of Taxation of the Commonwealth of Australia (1989) 166 CLR 417; R v Wozniak & Pendry (1977) 16 SASR 67; R v Cogan & Leak [1976] 1 QB 217; R v Steele (1977) 65 Cr App R 22; R v Roberts [1986] Crim L R 188; R v Kowalski (1988) 86 Cr App Rep 339; CR v United Kingdom; SW v United Kingdom [1996] 1 Fam Law R 434; Attorney General for Jersey v Holley [2005] 2 AC 580; Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; Bropho v State of Western Australia (1990) 171 CLR 1, considered.

Question of Law Reserved NO 2 OF 2010
R v P, GA
[2010] SASCFC 81
Court of Criminal Appeal: Doyle CJ, Gray and White JJ

DOYLE CJ: An Information filed in the District Court charges Mr P with a number of offences. Each of count 3 and count 5 charges an offence of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). Count 3 alleges an offence committed between 22 March 1963 and 25 March 1963. Count 5 alleges an offence committed about 14 April 1963. Each count alleges vaginal sexual intercourse.
The alleged victim in each case is Mrs P, the then spouse of Mr P. They were lawfully married in September 1962. At the time of the alleged offences they were cohabiting as husband and wife. There were no court orders, agreements or undertakings affecting the marital relationship.
In 1963 s 48 of the CLCA provided:
48Any person convicted of rape shall be guilty of felony, and liable to be imprisoned for life, and may be whipped.
The elements of the offence against s 48 were supplied by the common law.
In 1963 one would have found statements by judges and writers of textbooks to the effect that at common law a husband could not be guilty of raping his wife, except in certain circumstances, none of which are relevant here.
Since then it has become clear that it is no longer the law that a husband cannot be guilty of raping his wife. In this State a number of statutory changes to the law relating to rape have been made, and now the CLCA provides that there is no presumption from marriage of consent to sexual intercourse.
A Judge of the District Court has reserved for the consideration and determination of this Court a question of law. The question is whether the offence of rape by one lawful spouse of another, in the circumstances that I have outlined, was an offence known to the law of South Australia as at 1963. I would prefer to express the question as whether Mr P can, as a matter of law, properly be convicted of count 3 and count 5 in the circumstances outlined.
I have concluded that even if at an earlier time, in 1963 or thereabouts, the answer to that question would have been in the negative, today it must be answered in the affirmative.
In The Queen v L (1991) 174 CLR 379 four of the five members of the High Court said that it was no longer the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband. This Court should apply those statements when deciding on the state of the common law today. The statements are considered statements, although they were not necessary for the decision in the case, and so are not binding on this Court. Consistently with my understanding of the operation of the common law, the statements as to the content of the common law relating to rape made in 1991 are now to be applied, when the content of the common law relating to rape is relevant, to events occurring before those statements were made. To the extent that it is necessary in this case to identify the common law elements of the offence of rape in 1963, those elements are to be identified in light of the statements in The Queen v L.
Mr P is charged with offences against the then s 48 of the CLCA. In 1963 the elements of that offence were determined by the common law. Today, those elements are determined by the common law as stated by the majority in The Queen v L.
My reasons for this conclusion are set out below.
I will begin by referring to relevant statutory provisions in this State. It is necessary to demonstrate that no statutory provision precludes the Court from identifying the elements of the offence in accordance with the common law. It is also necessary to demonstrate that there is no time limit that protects Mr P from being convicted of the offence. Next I will refer to the state of the common law before the decision in The Queen v L, and say a little more about what was said in that decision. Then I will explain why I conclude that what was said in The Queen v L should now be applied to events occurring in 1963.
Legislation
I have set out above s 48 of the CLCA as it stood in 1963.
At that time the CLCA included s 76a. That section had been inserted by the Criminal Law Consolidation Act Amendment Act 1952 (SA) (No. 27 of 1952). It provided as follows:
76a(1) No information shall be laid for any offence specified in subsection (3) of this section more than three years after the commission of the offence.
An offence against s 48 was one of the offences specified.
The Criminal Law (Sexual Offences) Amendment Act 1975 (SA) (No. 66 of 1975) added to s 5 of the CLCA a definition which expanded the range of sexual acts included within the concept of rape. Section 6 of that Act also amended s 48 by striking out the words “convicted of” and inserting the words “who commits”.
The Criminal Law Consolidation Act Amendment Act 1976 (SA) (No. 83 of 1976) recast the provisions relating to rape. In March 1976 the Criminal Law and Penal Methods Reform Committee of South Australia made a Special Report to the Attorney-General upon the law relating to rape and other sexual offences (“the Mitchell Report”). Importantly, the Committee stated at para 6.2 of the Mitchell Report that:
The view that the consent to sexual intercourse given upon marriage cannot be revoked during the subsistence of the marriage is not in accord with modern thinking. In this community today it is anachronistic to suggest that a wife is bound to submit to intercourse with her husband whenever he wishes it irrespective of her own wishes.
At para 6.2.1 of the Mitchell Report the Committee made the following recommendation:
We recommend that a husband be indictable for rape upon his wife whenever the act alleged to constitute the rape was committed while the husband and wife were living apart and not under the same roof notwithstanding that it was committed during the marriage.
Although Parliament did not act on this recommendation, no doubt the Mitchell Report prompted a reconsideration of the law relating to rape, as reflected in the 1976 amendment.
Section 5 of the CLCA was amended to include a widened definition of acts embraced by the expression “sexual intercourse.” Section 48 was repealed and was replaced by s 48(1) which provided as follows:
48(1)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) recklessly indifferent as to whether that other person consents to sexual intercourse with him,
shall be guilty of the felony of rape and liable to be imprisoned for life.
A new s 73 was inserted into the CLCA. It provided as follows:
73(1)For the purposes of this Act, sexual intercourse is sufficiently proved by proof of penetration.
(2)No person shall, by reason of his age, be presumed incapable of sexual intercourse.
(3)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)No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to an indecent assault by that other person.
(5)Notwithstanding the foregoing provisions of this section, a person shall not be convicted of rape or indecent assault upon his spouse, or an attempt to commit, or assault with intent to commit, rape or indecent assault upon his spouse (except as an accessory) unless the alleged offence consisted of, was preceded or accompanied by, or was associated with –
(a)assault occasioning actual bodily harm, or threat of such an assault, upon the spouse;
(b)an act of gross indecency, or threat of such an act, against the spouse;
(c)an act calculated seriously and substantially to humiliate the spouse, or threat of such an act;
or
(d)threat of the commission of a criminal act against any person.
I will deal later with the submission by Mr Muscat SC, counsel for Mr P, based on s 73(3). Although s 76a of the CLCA was amended, the time limit it contained continued to apply to an offence against s 48 of the CLCA.
The Criminal Law Consolidation Act Amendment Act 1981 (SA) (No. 107 of 1981) repealed s 48(2) of the CLCA. That provision is not material for present purposes.
The Criminal Law Consolidation Act Amendment Act 1985 (SA) (No. 98 of 1985) amended s 5 of the CLCA by substituting a new and expanded definition of “sexual intercourse.” It also amended the concluding part of s 48(1) of the CLCA so that it read:
… shall (whether or not physical resistance is offered by that other person) be guilty of the felony of rape…
More significantly, this amendment repealed s 76a of the CLCA, thereby removing the time limit on prosecutions for rape.
In The Queen v Pinder (1989) 155 LSJS 65 this Court held that the repeal of s 76a did not authorise the laying of an information which would deprive a person of an immunity already acquired under s 76a, before its repeal: King CJ at 66, Cox J and Bollen J at 67.
The Queen v L was decided in 1991.
The Criminal Law Consolidation (Rape) Amendment Act 1992 (SA) amended s 73 of the CLCA by striking out subsection (5). That removed the limitation upon the circumstances in which a person could be convicted of rape of that person’s spouse. This meant that on the trial of a charge for rape the fact that the person charged was married to the alleged victim was, of itself, irrelevant to the elements of the offence. A new subsection (5) was inserted, but its provisions are irrelevant for present purposes.
The Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act 2003 (SA) in effect reversed the decision in Pinder. This amendment added s 72A to the CLCA in the following terms:
72A – Former time limit abolished
Any immunity from prosecution arising because of the time limit imposed by the former section 76A¹is abolished.
¹Repealed by section 5 of the Criminal Law Consolidation Act Amendment Act 1985.
The effect of this was that persons who had acquired an immunity under the repealed s 76a, and who could not be convicted consistently with the decision in Pinder, could now be convicted.
The Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA) again recast the law relating to rape. No material change has been made since then.
The definition of “sexual intercourse” in s 5(1) was amended. A new s 46 was enacted. It has detailed previsions relating to consent to sexual activity, which includes sexual intercourse. It also enacted a new s 47 which makes detailed provision relating to reckless indifference to the fact that another person does not consent to an act or has withdrawn consent. A new and much extended definition of rape was contained in a new s 48.
Section 73 was amended by deleting subsection (5). The other provisions of s 73, including in particular s 73(3), were retained. It remained the case that there was no time limit on the laying of a charge of rape.
Comments on legislation
Mr P is charged with offences against s 48 of the CLCA. As I have indicated, in 1963 the elements of that offence were supplied by the common law. The CLCA contained no provision affecting the elements of the offence at common law.
In 1963 s 76a of the CLCA prohibited the laying of an Information for an offence against s 48 more than three years after the commission of the offence. By mid April 1966, Mr P was entitled to the benefit of that provision. He was immune from prosecution for the offences now charged.
That immunity was abolished by s 72A of the CLCA. There is no time limit that Mr P can invoke as an answer to the charges that he faces.
Neither party has submitted that changes to the elements of the offence of rape from 1976 onwards apply with retrospective effect.
The changes made in 1976 are significant.
Mr Muscat submits that Parliament legislated in 1976 on the assumption that at common law a husband could not be guilty of the rape of his wife (other than in exceptional circumstances) because marriage gave rise to consent to sexual intercourse, or to an irrebuttable presumption of consent. On this basis Parliament changed the elements of the offence, but with prospective effect only.
Mr Muscat submits that this Court and the High Court are now bound to accept and to act on that assumption. Alternatively, he submits that if this Court or the High Court has power to determine the elements of the offence at common law prior to 1976, and to do so contrary to an earlier understanding of the law, the Court should refrain from doing so. It should refrain because as from 1976 Parliament has indicated what the elements should be prospectively, and has chosen to leave undisturbed the common law as it prevailed before 1976.
I will deal with the second submission when considering the position at common law.
The first submission is a submission that by making the prospective change to the elements of the offence of rape that Parliament made in 1976, Parliament has commanded that the law prior to 1976 is to remain unchanged. I do not accept that submission.
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 is no more than that, a mistaken understanding. The mistake has no legal effect. It might affect the manner in which a court interprets the statutory change. But that is all that the mistaken understanding can do.
In Birmingham Corporation v West Midland Baptist (Trust) Association (Inc) [1970] AC 874 at 898 Lord Reid said:
These provisions do show that Parliament (or the draftsman) must have thought that the law was that compensation was assessable on the basis of value as at the date of notice to treat. But the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different. This has been stated in a number of cases including Inland Revenue Commissioners v Dowdall, O’Mahoney & Co Ltd [1952] AC 401. No doubt the position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. But, in my view, all that can be said here is that these enactments would have a narrower scope if the law was found to be that compensation must be assessed at a date later than that of the notice to treat.
Lord Upjohn agreed with Lord Reid (at 908) as did Lord Wilberforce (at 913). Lord Donovan said nothing on the point.
A similar observation was made by Lord Radcliffe in Inland Revenue Commissioners v Dowdall, O’Mahoney & Co Ld [1952] AC 401 at 426. Lord Reid agreed with those observations at 417 and at 420-421.

The same point was made by Gleeson CJ, Gummow and Heydon JJ in CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [51], where their Honours said, with reference to a provision of Queensland legislation:
[51]… Section 59(3) assumes that at common law damages are available for services provided by the injured person – a sound assumption in Queensland if Sturch v Willmott were correct. Section 59(3) limits recovery to non-gratuitous services outside the household. Section 59(3) is an example of Lord Reid's principle: "the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different". Section 59(3) is not an example of legislation unworkable unless an assumption as to the common law is correct.^. To overrule Sturch v Willmott and Sullivan v Gordon would not make s 59(3), which simply limited the common law rule, unworkable. By itself that legislative decision is not a conclusive or even persuasive guide to the content of the common law; it merely reflects a legislative policy choice.
Footnotes omitted
The reference to Lord Reid is to the passage set out above.
The same approach was taken by the Court of Appeal of the Supreme Court of New South Wales in Honeywood v Munnings [2006] NSWCA 215; (2006) 67 NSWLR 466 at [37]-[40] Handley JA, with whom the other members of the Court agreed at [43] and [44].
For Mr Muscat’s first submission to succeed one would have to conclude that by necessary implication in 1976 Parliament stated that the then existing common law should remain as it stood, and that the Court should not exercise the power that it ordinarily has to determine the content of the common law prior to 1976.
There is no basis for such an implication. It was not beyond the power of Parliament to declare that the existing common law in South Australia was to remain unchanged. But there is no reason to read the 1976 amendment as doing so by implication. A mistaken understanding of the state of the existing law and a prospective change by legislation does not imply an intention that the existing law is not to be changed by judicial decision.
It cannot be said that to declare now the pre-existing common law to be different from the understanding of Parliament in 1976 would be to render the 1976 amendment unworkable or ineffective. Either way, it will continue to operate according to its terms. Nor, as Handley JA pointed out in Honeywood, can one infer what Parliament would have done if it had believed the common law to accord with statements later made by members of the High Court in The Queen v L.
By 1976 the notion of an irrevocable and general consent to intercourse arising from marriage, or from a presumption attributable to marriage, was already seen by some as anachronistic: see the Mitchell Report at para 6.2. The reform made in 1976 demonstrates what Parliament intended the law to be thereafter. On one approach to the content of the common law the 1976 amendment limited what would have been the reach of the common law by limiting the circumstances in which a husband could be convicted for the rape of his wife. On another view the 1976 amendment amended the law relating to rape to permit a husband to be convicted of the offence of rape of his wife in circumstances in which there could be no conviction at common law. But while the 1976 amendment, and its circumstances, indicates what Parliament intended the law to be, it does not give rise to an implication as to Parliament’s intention as to what the law applicable to past events was to be.
Common law
In The Queen v L the respondent was charged with the rape of his wife, contrary to s 48 of the CLCA. The offences were alleged to have occurred on 9 April 1989. At the time of the alleged offence s 48 was in the form as amended in 1985. It was an offence to have sexual intercourse with another person without the consent of that other person, knowing that the other person did not consent or being recklessly indifferent as to consent, and whether or not physical resistance was offered. Section 73 of the CLCA was in force at the time of the alleged offences, in the form of the 1976 amendment.
The respondent challenged the Information.
Section 114(2) of the Family Law Act 1975 (Cth) then provided:
In exercising its powers under sub-section (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.
The respondent argued that s 73(3) of the CLCA was inconsistent with s 114(2) of the Family Law Act. The submission was summarised as follows by Mason CJ, Deane and Toohey JJ at 384-385:
The respondent submitted that the two provisions are directly inconsistent in that the State Act “eliminates the obligation to perform ‘conjugal rights’ for every married person in the State of South Australia” while the Commonwealth Act “assumes the existence of the obligation [to render conjugal rights] but gives the Family Court a discretion to relieve a party from it if appropriate”. Section 114(2), the respondent argued, preserves the common law notion of “conjugal rights” and that notion, he said, involves the proposition that a wife, by virtue of being married, cannot refuse her consent to sexual intercourse with her husband; that a husband has a “right” to sexual intercourse and that a wife has an obligation to submit to it.
The respondent further submitted that, if the two provisions are not inconsistent, nevertheless the Commonwealth “has intended to ‘cover the field’ concerning the legal consequences of marriage” and that the State Act seeks to regulate one of those consequences.
Underlying this submission was the proposition that as between married persons marriage gave rise to a consent to sexual intercourse, and that accordingly the respondent could not be guilty of the rape of his wife because he was entitled to sexual intercourse pursuant to that consent. There was no suggestion that any of the exceptional circumstances under which a husband could be guilty of the rape of his wife at common law were applicable.
The High Court unanimously rejected the inconsistency submission. Mason CJ, Deane and Toohey JJ held that the Family Law Act did not identify or preserve any particular marital service or conjugal right. Nor did the Commonwealth law cover the field of the rights and obligations of the parties to a marriage: at 385‑386. Brennan J denied that by the law of marriage (developed in the ecclesiastical courts) a husband had a right to sexual intercourse with his wife whenever he wished, irrespective of the circumstances (at 391), and denied that the Family Law Act said anything to the contrary (at 396). Dawson J agreed with Brennan J (at 404).
Each member of the High Court considered the common law relating to the offence of rape as between spouses.
Mason CJ, Deane and Toohey JJ referred to a number of English decisions and commented (at 388) that none of them “… lends credence to the proposition that, by virtue of her marriage, a wife gives her consent to sexual intercourse with her husband, whatever the circumstances”. They noted that the proposition appeared to derive from a statement by Sir Matthew Hale in The History of the Pleas of the Crown (1736) Vol. 1 p 629 in the following terms:
But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.
They accepted that this statement probably reflected the common law as it then stood, but noted that the later course of authority did not necessarily support that opinion. They then said at 389:
Without endeavouring to resolve the development of the common law in this regard, it is appropriate for this Court to reject the existence of such a rule as now part of the common law of Australia.
They noted the restraints that the High Court should observe when developing the common law, and said at 390:
But the situation here is that the respondent invites the Court to give its support to a proposition which, in the terms contended for, does not have the backing of the common law for which he contends.
They then said:
In any event, even if the respondent could, by reference to compelling early authority, support the proposition that is crucial to his case, namely, that by reason of marriage there is an irrevocable consent to sexual intercourse, this Court would be justified in refusing to accept a notion that is so out of keeping with the view society now takes of the relationship between the parties to a marriage. The notion is out of keeping also with recent changes in the criminal law of this country made by statute, which draw no distinction between a wife and other women in defining the offence of rape. It is unnecessary for the Court to do more than to say that, if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law.
Footnotes omitted
It is clear that in their opinion the common law no longer reflected the opinion expressed by Sir Matthew Hale.
Brennan J also noted the influence of Sir Matthew Hale on the common law relating to rape (at 398), and that this view was not in accord with the doctrines of the ecclesiastical courts. He said that Sir Matthew Hale’s reason for the rule that he stated (matrimonial consent) was not supported by the law of marriage or by any other doctrine of the common law: at 401. He referred with apparent approval to recent decisions in S v Her Majesty’s Advocate [1989] SLT 469 and Regina v R [1992] 1 AC 599, to which decisions I refer below. But he found it unnecessary to consider the present state of the common law in South Australia, because s 73(3) of the CLCA abolished the common law fiction of a wife’s presumed consent to intercourse: at 402-403.
Dawson J also referred to the opinion of Sir Matthew Hale (at 405). Having referred to the decisions in S v Her Majesty’s Advocate and Regina v R, he said at 405:
But I think that it is appropriate to say that, whatever may have been the position in the past, the institution of marriage in its present form provides no foundation for a presumption which has the effect of denying that consent to intercourse in marriage can, expressly or impliedly, be withdrawn. There being no longer any foundation for the presumption, it becomes nothing more than a fiction which forms no part of the common law.
It is convenient at this point to refer briefly to S v Her Majesty’s Advocate and Regina v R.
S v Her Majesty’s Advocate is a decision of the High Court of Justiciary of Scotland. A man was charged with the rape of his wife while they were cohabiting. He raised a preliminary objection to the charge on the ground that he was immune from prosecution for the rape of his wife while cohabiting with her. The presiding Judge “repelled” the objection, but granted leave to appeal.
The High Court refused the appeal. In Scotland as in England there were statements by authoritative commentators on the criminal law, and by text book writers, to the effect that a man could not be guilty of the rape of his wife when they were cohabiting. This opinion as to the state of the law in Scotland is traced back to the writings of Baron Hume in 1797 and in later editions of his work. The Court thought it likely that Baron Hume had been influenced by Sir Matthew Hale: 472-473. The Court considered the soundness of the reasons given for the suggested immunity, and concluded (at 473):
… that whether or not the reason for the husband’s immunity given by Hume was a good one in the 18^th and early 19^th centuries, it has since disappeared altogether.
A little later (at 473) the Court said:
The reason given by Hume for the husband’s immunity from prosecution upon a charge of rape of his wife, if it ever was a good reason, no longer applies today. There is now, accordingly, no justification for the supposed immunity of a husband. Logically the only question is whether or not as matter of fact the wife consented to the acts complained of, and we affirm the decision of the trial judge that charge 2 (b) is a relevant charge against the appellant to go to trial.
The Court rejected a submission that there should be no change in the law of rape as it affects a husband: at 474.
It is clear that the High Court of Justiciary intended to and did change the law relating to rape with retrospective effect, because they declared that law to be the law applicable to the events the subject of the charge in question.
This decision was referred to in The Queen v L by Brennan J at 401 and by Dawson J at 405, with apparent approval.
In Regina v R a man was charged with the rape of his wife. They had separated, she having returned to live with her parents. Each had spoken to the other about getting a divorce. The alleged rape occurred when the wife was living with her parents. The trial Judge rejected a submission that the offence of rape was one which was not known to the law if the defendant was the husband of the alleged victim. This submission turned on a consideration of the common law and of the wording of the Sexual Offences (Amendment) Act 1976 (UK) s 1(1) of which provided:
For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if – (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it …
The argument was that this was the first statutory definition of rape, and the word “unlawful” was intended to preserve the common law immunity of the husband: at 608D.
All members of the House of Lords agreed with the reasons of Lord Keith: at 623. Lord Keith also identified the influential statement by Sir Matthew Hale, and accepted that it had accurately stated the common law: at 615-616. He referred at some length, and with approval, to the decision in S v Her Majesty’s Advocate: at 616-618. He said that there was “no justification for the marital exemption in rape”: at 618B. He held that the word “unlawful” in the 1976 legislation was mere surplusage because (at 622H):
… it is clearly unlawful to have sexual intercourse with any woman without her consent …
In relation to a submission that the House of Lords should leave it to Parliament to determine the status of the supposed marital exception to rape he adopted what had been said by Lord Lane CJ in the Court of Appeal: Regina v R [1992] 1 AC 599 at 611E:
The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.
There can be no doubt that their Lordships denied that Sir Matthew Hale’s opinion reflected the common law as at the time of their decision, and equally denied that it reflected the common law at the time of the 1976 enactment. The legislation was interpreted on the basis that at that time Sir Matthew Hale’s proposition was no longer good law.
The decision by the Court of Appeal in Regina v R was referred to in The Queen v L: Mason CJ, Deane and Toohey JJ at 389, Brennan J at 398 and Dawson J at 405. The decision by the House of Lords was published after argument took place before the High Court, and that decision is referred to also.
These three decisions reflect substantial agreement by the highest authority in each of those jurisdictions that the common law as declared by Sir Matthew Hale was unsoundly based having regard to ecclesiastical law, was undermined by exceptions, was inconsistent with common law principles that allowed a married man to be charged with offences of violence against his wife, and was anachronistic and had been so for some time. It was only in S v Her Majesty’s Advocate that it was necessary for the Court to determine and apply the common law, and to apply it to earlier events. But, in my opinion, in The Queen v L and in Regina v R firm statements were made as to the content of the common law as it was and had been.
Submissions on the common law
Mr Muscat began with the proposition that in 1963 had the issue arisen for decision this Court, and presumably the High Court, would have decided that Sir Matthew Hale had accurately stated the common law, subject to the then recognised exceptions. He adopted the following passage from the reasons of Mason P in R v Petroulias [2005] NSWCCA 75; (2005) 62 NSWLR 663 at [129].
[129]The law understands that some legal propositions can be stated with certainty whilst others cannot. Matters may change over time, such that what is certain in one era may be problematical in another. To give an example: when Sir Matthew Hale’s History of the Pleas of the Crown (Sir Matthew Hale, The History of the Pleas of the Crown (1736) London, Nutt & Gosling) was published in 1736, the common law was quite clear that a husband could not be guilty of raping his wife. The situation was arguable in the 1980s, but became clear again (to the opposite effect) after 1991 in light of R v L (1991) 174 CLR 379 and R v R [1992] 1 AC 599.
Mr Muscat may be correct. However, the consideration of the common law in the cases to which I have referred shows that the common law was not necessarily clear, and that there were a number of difficulties with Sir Matthew Hale’s statement of the law, difficulties that would have been evident in 1963. Even in 1963, a respectable challenge to Mr Matthew Hale’s opinion could have been mounted. Nevertheless, I am prepared to accept that it is likely that Sir Matthew Hale’s opinion would have been accepted in 1963.
Next Mr Muscat submits that in The Queen v L the majority denied the existence of any presumption that marriage gives rise to an irrevocable consent on the part of the wife to sexual intercourse with the husband. He submits that their Honours did not consider the elements of the offence of rape at common law, confining their attention to the South Australian amendment enacted in 1976.
I do not accept this submission. Reference to a presumption of consent to intercourse attributable to marriage is merely a way of expressing or explaining the principle that at common law a man could not be guilty of rape of his wife, other that in certain exceptional circumstances. If the presumption of consent attributable to marriage, or a rule that there is an irrevocable consent by marriage, is rejected, as it was, then there remains no obstacle in law to a husband being convicted of the rape of his wife if she does not consent. The suggested immunity of a husband from prosecution, and the suggested presumption of consent, are manifestations of one and the same principle.
In the alternative Mr Muscat submits that after the 1976 amendment rape was no longer a common law offence. Its elements were to be found in s 48 and s 73 of the CLCA. I agree.
I have dealt earlier with the submission that the 1976 amendment denies a court power to determine the content of the common law relating to rape as it was in earlier times.
Mr Muscat also submitted that after 1976 there was in South Australia no surviving common law relating to rape to be developed. Accordingly, the common law had ceased to be capable of change or development. I disagree.
There is only one common law of Australia. That point was recently reaffirmed in passing by Gleeson CJ, Gummow and Heydon JJ in CSR Limited v Eddy at [54]. There is no separate common law of South Australia. The Parliament of South Australia cannot prevent the High Court from declaring the common law of Australia.
In any event, when the 1976 amendment was enacted it remained possible for a man to be charged with and convicted of the rape of his wife under the pre‑existing law, as long as an Information was laid within three years of the alleged offence. Any such charge would have required the court to determine the state of the common law in its application to the events the subject of the charge. Once s 72A was added to the CLCA in 2003, an Information could have been filed alleging a common law offence at any time prior to 1976 (as this case illustrates). Again, that would require the court to determine the state of the common law as at the time of the alleged offence.

Unless the 1976 amendment denied a court power to change the common law in relation to the offence of rape in relation to events in South Australia (a proposition that I have already rejected), it remains the task of this Court and of the High Court to determine the common law applicable to a charge of rape as between husband and wife at a time before the 1976 amendment took effect, should the occasion arise.
Mr Muscat was on stronger ground in submitting that there are good reasons not to declare the common law as at 1963 to be any different from the postulated opinion in 1963 as to its content.
His submission is as follows. Parliament has not failed to respond to social change, nor to the need for change in the law. From 1976 onwards Parliament has, by a series of measures, reformed the law relating to rape. Nor did Parliament choose to make any of these changes retrospective, except for s 72A, which retrospectively removes a time based immunity that existed before its enactment. In its legislative measures after 1976 Parliament has indicated the extent to which the law of South Australia should be changed. A similar trend is observable throughout Australia. In the States and Territories the immunity of a husband on a charge of rape of his wife was limited and then ultimately removed. It is not necessary to go into details.
In light of this pattern of measured reform throughout Australia, Mr Muscat submits that there is no case for the Court to recast the common law in its application to events today, and that it is not appropriate to recast the common law with retrospective effect, going beyond what Parliament saw fit to do in the various Australian jurisdictions. To accept the submissions of Mr Hinton QC SG for the Director would be to give rise to a new liability retrospectively. It would be to apply to events in 1963, the subject of the charge, a statement of legal principle first identified for Australia in 1991 in The Queen v L. To do so would be contrary to, for example, Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms which states:
1No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed …
That is a fundamental principle that can be found in a number of international covenants. It is an aspiration and a principle of statutory interpretation embedded in the common law. It is not, strictly speaking, a rule of law.
There is force in the submission, particularly in the last point.
The operation of the principle against retrospective application of criminal law was considered by the High Court in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645. There the High Court decided to reformulate the law of self defence, and to depart from the law as declared in The Queen v Howe (1958) 100 CLR 448 and Viro v The Queen (1978) 141 CLR 88. Wilson, Dawson and Toohey JJ said at 664:
We have anxiously considered whether the departures which we propose from Howe and Viro could occasion injustice to persons presently awaiting trial for offences where self-defence may be raised, including the present appellant in the event of a new trial. For the reasons which we have given we think this unlikely. Of course, the risk of injustice, however slight, must be weighed carefully. On the other hand, there are compelling reasons for the course which we propose.
They went on to conclude, having considered a number of factors, that the law of self defence should be reformulated in the relevant respect. Deane J was opposed to reformulating the law. One of the matters upon which he relied was the principle invoked by Mr Muscat. He said at 677-678:
There may be circumstances in which an ultimate appellate court is justified in overruling a previous decision of its own with the consequence that what had previously been accepted as a defence to a charge of murder is no longer, and never was, such a defence …
The vice of such a retrospective abolition of a defence to a charge of murder lies not in the prospect of injustice to some imaginary killer who has killed on the basis that his crime will be reduced from murder to manslaughter in the event that he was found to have been acting excessively in self-defence. It lies in the fundamental injustice of inequality under the law which is unavoidable when the administration of the criminal law is reduced to a macabre lottery by what the late Professor Stone described as flagrant violation of the "well-established judicial policies of the criminal law in favorem libertatis, and against ex post facto punishment": Precedent and Law (1985), p. 190. It is simply wrong that an accused may be adjudged not guilty or guilty of murder according to the chance of whether his trial is completed before or after this Court has abolished a defence which, under the law which the Court itself had definitively settled (see per Gibbs J. in Viro (1978) 141 CLR 88 at 128) at the time the offence was committed, reduced the offence from murder to manslaughter. An obvious consequence of a decision of this Court overruling Viro and Howe would be to deprive all those accused whose trials have been delayed by inefficiencies in the administration of criminal justice of a defence which would have been available to them if their trials had not been unduly delayed.
The other members of the Court did not find it necessary to consider these matters. The decision in Zecevic demonstrates the need for careful consideration of the point made by Mr Muscat.
The matter was also considered by the High Court in Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501. The Court was there concerned with the retroactive effect of Commonwealth legislation amending the War Crimes Act 1945 (Cth) so as to make the commission of a “war crime” at an earlier time an indictable offence under the Commonwealth law. The potential retroactive reach of the law was almost 40 years. This aspect of the law was relied upon as a basis for various attacks upon the validity of the legislation. Toohey J considered the question of retroactivity as a free standing principle. He referred to “a general abhorrence of retroactive criminal law”: at 687. I refer to the following parts of his reasons at 688-689:
All these general objections to retroactively applied criminal liability have their source in a fundamental notion of justice and fairness. They refer to the desire to ensure that individuals are reasonably free to maintain control of their lives by choosing to avoid conduct which will attract criminal sanction; a choice made impossible if conduct is assessed by rules made in the future. …
Prohibition against retroactive laws protects a particular accused against potentially capricious state action. But the principle also represents a protection of a public interest. This is so, first, in the sense that every individual is, by the principle, assured that no future retribution by society can occur except by reference to rules presently known; and secondly, it serves to promote a just society by encouraging a climate of security and humanity.
In so far as the principle of non-retroactivity protects an individual accused, it is arguably a mutable principle, the right to protection dependent, to some extent, on circumstances. Where, for example, the alleged moral transgression is extremely grave, where evidence of that transgression is particularly cogent or where the moral transgression is closely analogous to, but does not for some technical reason amount to, legal transgression, there is a strong argument that the public interest in seeing the transgressors called to account outweighs the need of society to protect an individual from prosecution on the basis that a law did not exist at the time of the conduct. But it is not only the issue of protection of an individual accused at the point of prosecution which is raised in the enactment of a retroactive criminal law. It is both aspects of the principle – individual and public interests – which require fundamental protection.
In his opinion the law was not offensively retroactive in relation to the information laid against the plaintiff, and accordingly it was not necessary to consider whether the law was, for that reason, invalid.
On the other hand, to accede to Mr Muscat’s submission is to leave in place in South Australia (in relation to events before 1976) a principle of the common law with an unsound basis in ecclesiastical law, the subject of inconsistencies and exceptions, and reflecting an attitude to marriage and to the status of women which had been rejected in Australian society well before the decision in The Queen v L. Nor can it be said that people would have ordered their affairs or made decisions based on the earlier state of the common law.
In my opinion, in The Queen v L the majority of the High Court rejected as part of our common law the proposition that by marriage a wife gives irrevocable consent to sexual intercourse with her husband. These are considered statements of the common law which this Court should apply: Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 at [134]. True, it cannot be said that the statements of law appearing in The Queen v L represent “long established authority”. But they do reflect the view that the common law had well and truly changed by the time of the decision in The Queen v L. This Court cannot ignore those observations. It cannot reinstate Sir Matthew Hale’s opinion as part of the common law. This Court is called upon to determine the principles of law applicable to events occurring in 1963. Those principles are principles of the common law, and in The Queen v L the High Court has stated what those principles are.
It is for the High Court, not this Court, to decide that the matters advanced by Mr Muscat are sufficient to decide that the statements in The Queen v L should not be applied to events before that decision, or before 1976.
Mr Muscat’s final submission is that any change to the common law should be treated as prospective in its effect. He did not elaborate on the question of whether that change operated prospectively from 1991, or as from today. For present purposes that does not matter.
That would give rise to a curious consequence, which makes one pause. By 1981 in no Australian jurisdiction did the common law exclusively determine the elements of the offence of rape as between husband and wife. By 1991 Sir Matthew Hale’s statement of the law had been rejected by legislation throughout Australia. In substance the law relating to rape as between husband and wife treated a wife in the same way as a single woman. A declaration of the state of the common law with prospective effect would be of academic interest only, except to the extent that it served to remove a blot on the history of the common law.
The difficulty with Mr Muscat’s submission is that the orthodox doctrine is that when the common law changes, by virtue of a decision of a court, that change operates on events that have already occurred and on events that are yet to occur. The concept of a prospective change to the common law has not been accepted by the High Court in Australia.
In The Queen v L the members of the Court spoke as if they were dealing with the common law as it then was and as it had been.
In Ha v State of New South Wales (1997) 189 CLR 465 the High Court considered a submission that if legislation enacted by the Parliament of New South Wales was invalid, the Court should declare that legislation to be invalid with prospective effect only, because of the impact on the revenue of the State. The submission was formulated as a submission that the Court should overrule prospectively certain decisions of the High Court, leaving the authority of those cases unaffected for a period of twelve months. Only the majority had to consider this submission, because only the majority were of the opinion that the relevant cases should be overruled. Brennan CJ, McHugh, Gummow and Kirby JJ said at 503-504:
The Court was invited, if it should come to that conclusion, to overrule the franchise cases prospectively, leaving the authority of those cases unaffected for a period of twelve months. This Court has no power to overrule cases prospectively. A hallmark of the judicial process has long been the making of binding declarations of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power. Prospective overruling is thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law. This would be especially so where, as here, non-compliance with a properly impugned statute exposes a person to criminal prosecution.
Footnotes omitted
In my opinion the same principle applies to the function of the Court when it develops or changes the common law. This has always been accepted although it is not easy to find authoritative statements to that effect. Often it is implicit in a decision changing the common law, because that changed law is applied to antecedent facts without any comment. In John v Commissioner of Taxation of the Commonwealth of Australia (1989) 166 CLR 417 Brennan J at 450-451 doubted the jurisdiction to overrule past decisions prospectively. In Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 Callinan J referred to some of the issues that arise when the law is changed by a court with retrospective effect. He said at [164]:
[164]… If the proposition that judges do not change the law is to be acknowledged as a fiction, then something may have to be done to displace the effect of the other legal fiction, that the law as found by the Court has always been so, and those who may have acted upon a different understanding in the past are nonetheless bound by the Court’s most recent exposition of the law. Merely to state the problems is to expose the difference between the legislative and curial roles. Certainty, predictability, the desirability of a gradual and incremental development of the common law only, and respect for the knowledge, wisdom and experience of those who made the earlier decision are very important considerations. The last of these matters will always however invite the question whether those who made the decision under challenge themselves paid due deference to those who in the past held a different opinion.
It is clear that his Honour considered that if the common law was changed then, in according with current doctrine, it changed with retrospective effect.
The question of limiting a change in the law so that it operates prospectively only was considered at some length by their Lordships in the House of Lords in In re Spectrum Plus Ltd (In Liquidation) [2005] UKHL 41; [2005] 2 AC 680. There is no need for me to summarise all of the observations by their Lordships, because I consider that only the High Court could act on the submission made by Mr Muscat on this point. This is not a matter for an intermediate court of appeal. In Spectrum their Lordships were concerned with the interpretation of statutes, but I see no reason to distinguish as a matter of substance between this matter and changes to the common law. Lord Nicholls considered that prospective overruling of previous decisions lay within the power of their Lordships:
[39]The objections in principle and difficulties in practice mentioned above have substance, particularly in respect of the traditional interpretation of statutes. These objections are compelling pointers to what should be the normal reach of the judicial process. But, even in respect of statute law, they do not lead to the conclusion that prospective overruling can never be justified as a proper exercise of judicial power. In this country the established practice of judicial precedent derives from the common law. Constitutionally the judges have power to modify this practice.
[40]Instances where this power has been used in courts elsewhere suggest there could be circumstances in this country where prospective overruling would be necessary to serve the underlying objective of the courts of this country: to administer justice fairly and in accordance with the law. There could be cases where a decision on an issue of law, whether common law or statute law, was unavoidable but the decision would have such gravely unfair and disruptive consequences for past transactions or happenings that this House would be compelled to depart from the normal principles relating to the retrospective and prospective effect of court decisions.
[41]If, altogether exceptionally, the House as the country’s supreme court were to follow this course I would not regard it as trespassing outside the functions properly to be discharged by the judiciary under this country’s constitution. Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. “Never say never” is a wise judicial precept, in the interest of all citizens of the country.
Those who appear to have agreed with him were Lord Hope at [74], Lord Walker at [161] and Baroness Hale at [162]. A more cautious view was taken by Lord Steyn at [45], Lord Scott at [126] and Lord Brown at [165].
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?

WHITE J: I agree with the answer proposed by the Chief Justice to the question of law reserved for the consideration of this Court. I also agree with his reasons.