R v P, GA

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.