Reg v L

[1991] HCATrans 242

•

• 'I

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A3 of 1991

B e t w e e n -

THE QUEEN

Petitioner

and

MARK LORD

Respondent

Cause removed pursuant to

section 40 of the Judiciary Act

1903

MASON CJ
BRENNAN J
DEANE J
DAWSON J

TOOHEY J

Lord(2) 32 3/9/91

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 3 SEPTEMBER 1991, AT 9.36 AM

(Continued from 2/9/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Katz.

MR DOYLE:	If the Court pleases, I omitted yesterday to give the Court references to the sections in the various
Codes and Criminal Law Acts around the country and
I wonder if I might just do that now?

MASON CJ: Yes.

MR DOYLE:  In the case of Queensland, the relevant section

is section 347 of the Criminal Code.

TOOHEY J:  Mr Solicitor, most of these may be in the New

South Wales submission.

MASON CJ: Page 2 of this - - -

MR DOYLE:  I think they are as at 1975, Your Honour. What I

am giving to the Court is the sections as they are

today indicating where there have been changes. In

Queensland there is a new section 347 that was

enacted by Amending Act No 17 of 1989. In Victoria

the relevant offence section is still section 45(1)

but by section 62 inserted in 1981 the suggested

rule as to implied consent has been abrogated; so

that is section 62 of the Crimes Act of Victoria.

In the case of Western Australia, by Act No 74

of 1985, section 10 of that Act, that repealed

section 325 of the Western Australian Criminal Code

and that section 325 excluded criminal

responsibility for rape where the victim was the

spouse.

DEANE J: What, and just left the common law?

MR DOYLE: Pardon, Your Honour?

DEANE J:  And just left the common law or left the section

that would catch the husband?

MR DOYLE:  No, and the various sexual offences have now been

redefined, if that is the right term, by a number

of sections contained in that same Amending Act

No 74 of 1985.

BRENNAN J: But none referring to the husband?

MR DOYLE:  No, Your Honour. In Tasmania, Your Honours, a

new section 185(1) was substituted for the previous

section by Act No 71 of 1987, the previous section

having an exception for the case where the victim

was the wife. And in New South Wales, section 61T

of the Crimes Act 1900 now provides, in effect,

that the fact that a person is married to a person

upon whom certain identified offences, including

rape, is alleged to have been committed, that fact

Lord(2) 33 3/9/91

of marriage is no bar to a conviction.	They are
the references.

BRENNAN J:  Some work by way of saying it is no bar to a

conviction, others work by way of saying that there

is no implied consent, in fact?

MR DOYLE:  Yes, Your Honour. The Victorian sections, for

instance, provides - section 62(2):

The existence of a marriage does not

constitute or raise any presumption of consent

by a person to an act of sexual penetration

with another person or to an indecent assault.

So there is, in fact, a variety of legislative

approaches in those sections. If the Court

pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Katz.

MR KATZ:  Your Honours, when I handed up my outline and

attachments last evening, I was under the

misapprehension that Your Honours had additional

materials which went with my submission. I

discovered after Your Honours left the bench that

that was not so and I have reproduced additional

bundles of materials.

MASON CJ: Are these mainly authorities, are they?

MR KATZ:  Yes, they are, and also the relevant statutory

provisions as at the time of passage of the Family

Law Act.

MASON CJ:	Thank you.
MR KATZ:	Your Honours, I should say that given time

constraints I did not photocopy in their entirety

some of the more lengthy cases but only the

extracts which relate to my submissions.	May I
begin by directing Your Honours' attention to the	cause remove book, page 9, which contains the two
counts upon which Mr Lord is to stand trial.
Your Honours will see that the first count against
him is one which alleges an act of non-consensual
oral intercourse whereas the second is one which
alleges non-consensual vaginal intercourse. I seek
to draw some distinction for the purposes of my
submission between the two counts.
May I deal first then with the count which deals with the non-consensual oral intercourse.
Your Honours, it was Sir Matthew Hale who first, in
the last 17th century, asserted the existence of
some immunity from criminal liability for a
husband.

Lord(2)	34	3/9/91
MASON CJ:	Mr Katz, you might bear in mind that we have read your written submission.	We are familiar with the

points that you are seeking to make.

MR KATZ:  Yes. If that be so, Your Honours, it may be

appropriate for the purpose of dealing with count 1

simply to direct Your Honours' attention to the

relevant passages in the Kowalski case which is the

first of the cases which I have handed up this

morning. If I could take Your Honours directly to

page 342 in the reasons for judgment of

His Lordship Mr Justice Ian Kennedy for the Court.

Your Honours will see the passage which begins, at

about point 3 on the page:

The consent which arises on marriage is shown

by many authorities to arise, it is variously

said, from the marriage contract or from the

marriage vows. It is clear, as

Professor Smith points out in his commentary

upon the case of Caswell, to which we shall

shortly refer, that Hale was referring to

intercourse per vaginam. That is so for two

reasons: first, because Hale was speaking of

rape and rape requires intercourse per

vaginam, and also because of the references to

marriage, which in this context carries with

it its purpose of the procreation of children.

I rely on that passage to make good the submission

which appears in paragraph 1.	And then
Their Lordships continue:

Professor Smith in the same commentary

points out - and, with respect, he is plainly

right - that fellatio is not unlawful. But it

is not a practice to which parties give their

consent by their marriage. If, having

married, they do consent to it, then the act

so performed is performed with consent and is

not an assault. But such a consent once

given, and even long continued, cannot relate

to the marriage contract or to the married

state. Actual consent to such an act of

fellatio must then exist if the particular

incident is not to be an assault.

back and attach itself to the marriage vows or

And I rely on that for the submission which I make

in the ~econd paragraph of my outline. And the

outcome, in my submission, is that whatever be the

strength of the accused's argument, so far as

concerns what I may call the Hale presumption, it

does not assist them in any way in respect of the

first count with which he is presently charged.

Lord(2) 35 3/9/91

Your Honours, may I turn then to the second

count. The point of the submissions which I make

in paragraphs 4 to 7 of my outline is to give

Your Honours a snapshot of the law of Australia as it was immediately before the passage of the Family

Law Act. Your Honours will find in the materials

that I handed up this morning, in order, the

relevant provision of the Queensland Criminal Code

as at 1975, followed by Western Australia, followed

by Tasmania, then some material to which I will

refer in a moment if I may; then followed by New

South Wales, South Australia and, finally,

Victoria.

So that, if I may deal firstly with

Queensland, Western Australia and Tasmania, the

Code States, Your Honours see that the law of all

of those States, by statute, was, immediately

before the passage of the Family Law Act, that

there existed an absolute immunity from criminal

liability for a husband who had had non-consensual

sexual intercourse with his wife.

I have included in the materials immediately following the Tasmanian extract a photocopy of my

own photocopy with my own scribbling on it of some

materials which I may briefly refer to.

Your Honours will have two pages stapled together,

the first of which is headed page XIV and has the

signature of Sir Samuel Griffith on it. May I

explain that the two pages concerned are, first of

all, a letter which Sir Samuel wrote to the

Attorney-General of Queensland on 29 October 1897;

and the second page consists of Sir Samuel's draft

Criminal Code for Queensland and the right-hand

column on the second of the two pages which

contains the section numbered 353 is, in fact, the
provision which became the Queensland Criminal Code

provision in 1899, and then subsequently became the

Western Australian provision in 1902.

Your Honours will see on the first of those

pages, Sir Samuel says, under the heading Printing

of Code, that he has given the sources of each of

his draft provisions. And if I may simply draw

attention to the very last sentence of the first

paragraph under the heading Printing of Code:

When, however, the proposed provision is

undoubted Common Law, I have not thought it

necessary to do more than say so.

And when one turns to the second page, in the left-

hand column, one sees the words opposite 353,

"Definition of Rape, Common Law", so that

Sir Samuel's view was that he was doing nothing more in creating his draft provision than

Lord(2) 36 3/9/91

reproducing what was then the state of the common
law so far as the question of a husband's liability

for raping his wife was concerned.

I have mentioned in paragraph 5 of my outline,

having referred to the relevant provisions in the
non-Code States, to the fact that there had not

been any decision of any court of the non-Code

States as of the time of passage of the Family Law

Act on the question of whether or not a husband was

immune from liability for raping his wife. Not

only had there not been any such decision, either

in New South Wales, South Australia or Victoria,

there had not been any decision of any other court

binding on the courts of those States. So no

decision of this Court, of the House of Lords, the

Privy Council or, indeed, the English Court of

Appeal.

In paragraph 6 of my submissions, I refer to

the state of the law in England as of the time of

passage of the Family Law Act and Your Honours will

see that I have referred to four reported cases

only which had occurred in England since Hale had

written in the 17th century up to 1975. They are
the four cases that I mention at the bottom of
page 2 of my submissions, in point of time,

Clarence, then Clarke, then Miller, then O'Brien.

I have included extracts from Clarence and from

Miller in the materials that I handed to

Your Honours this morning and I have included in

full copies of Clarke and O'Brien.

Your Honours, Clarence is the first occasion

upon which any court in either England or Australia

came to consider the question of any immunity from

liability on the part of a husband for raping his

wife and Your Honours, I think, are aware from

things said yesterday that Clarence was not, in

fact, a case in which a husband was charged with

rape but was, rather, charged with various offences

of assault but none the less things were said by

various of Their Lordship about the question of

liability for rape.

I have referred at the top of page 3 of my

outline to the relevant extracts. If I may quickly

take Your Honours to those extracts which you have

before you now. The first of them is from

His Lords.hip Mr Justice Wills, at page 33 in the

report, and may I direct Your Honours' attention to

the last paragraph on the page at about point 8, at

which His Lordship says:

If intercourse under the circumstances

now in question constitutes an assault on the

part of the man, it must constitute rape,

Lord(2) 37 3/9/91

unless, indeed, as between married persons

rape is impossible, a proposition to which I

certainly am not prepared to assent, and for

which there seems to me to be no sufficient

authority.

May I then take Your Honours to - passing over

the next page which Your Honours have, which is

page 237 - page 46 which is His Lordship

Mr Justice Stephen, and Your Honours will see that

His Lordship says, in the second complete paragraph

on that page:

I wish to observe on a matter personal to

myself that I was quoted as having said -

and my I interpolate here: that is a reference to

quote in argument in the case -

in my Digest of the Criminal Law that I

thought a husband might under certain

circumstances be indicted for rape on his

wife. I did say so in the first edition of

that work, but on referring to the last
edition (p 124, note) it will be found that

that statement was withdrawn.

May I trouble Your Honours to go to my outline

of submissions. Attached to the outline, the last

attachment, is what Mr Justice Stephen had, in

fact, said in his last edition of his digest prior

to this case. I think Your Honours will have a

four-page extract, the title page, the preface,

page 124, which is the page to which His Lordship

referred in the passage I have just read. Clearly

that is a typographical error because page 124

deals not at all with the question of rape but

something to do with offences relating to corpses.

It would appear that the 124 was intended to be a

reference to 194 and I have included that as the

last of the four pages which Your Honours have.

Your Honours will see on page 194,

article 254A, "Other provisions as to rape". This

is, in fact, what His Lordship Mr Justice Stephen

had said on the question in 1887, the year before

Clarence's case:

A husband [it is said] cannot commit rape

upon his wife by carnally knowing her himself,

but he may do so if he aids another person to

have carnal knowledge of her.

And then the note to that passage is note 4. The

reference is to the well-known passage from Hale's Pleas of the Crown and then Mr Justice Stephen had

this to say:

Lord(2) 38 3/9/91

Hale's reason is that the wife's consent

at marriage is irrevocable. It may be doubted

however whether the consent is not confined to

the decent and proper use of marital rights.

If a man used violence to his wife under circumstances in which decency or her own

health or safety required or justified her in
refusing her consent, I think he might be
convicted at least of an indecent assault.

Hale gives no authority for it, but makes the

remark only by way of introduction to the

qualification contained in the latter part of

clause (1) -

that is to say, the offence of complicity -

for which Lord Castlehaven's Case is an

authority.

So, Your Honour, whilst it is true that

His Lordship did withdraw in terms at least the

statement about liability for rape, certainly the

tendency of what remains is rather suggestive of

conclusion that there was liability for rape. The

reference to "[it is said]", the reference to "at

least indecent assault", the reference to the fact

that Hale gives no authority for his own

proposition. Your Honours, be that as it may, that

is what one derives from His Lordship

Mr Justice Stephen.

Then may I take Your Honours next to

His Lordship Mr Justice Hawkins who was a

dissention on the matter of substance. This is at

pages 51 and 52. At page 51, at the very top of

the page, His Lordship says:

By the marriage contract a wife no doubt

confers upon her husband an irrevocable
privilege to have sexual intercourse with

her -

and then follows these words which appear to be by

way of a qualification:

during such time as the ordinary relations

created by such contract subsist between them.

For this reason it is that a husband cannot be

convicted of a rape committed by him upon the

person of his wife. But this marital privilege

does not justify a husband in endangering his

wife's health and causing her grievous bodily

harm, by exercising his marital privilege when he is suffering from venereal disorder of such

a character that the natural consequence of

such communion will be to communicate the

disease to her. Lord Stowel in Popkin v

Lord(2) 39 3/9/91

Popkin, cited in Durant v Durant said, "the

husband has a right to the person of his wife,

but not if her health is endangered." So to

endanger her health and cause her to suffer

from loathsome disease contracted through his

own infidelity, cannot, by the most liberal

construction of his matrimonial privilege, be

said to fall within it; and although I can

cite no direct authority upon the subject, I

cannot conceive it possible seriously to doubt

that a wife would be justified is resisting by

all means in her power, nay, even to the death, if necessary, the sexual embraces of a husband suffering from such contagious disorder.

His Lordship does not say to whose death he is

referring and it is not plain to me whether he is
referring to a moral right in the wife to resist to

her own death or whether he is referring to a legal right in the wife to resist to her husband's death.

But, be that as it may, he continues:

In my judgment wilfully to place his

diseased person in contact with hers without

her express consent amounts to an assault. It

has been argued that to hold this would be to

hold that a man who suffering from gonorrhoea

has communion with his wife might be guilty of

the crime of rape. I do not think this would

be so. Rape consists in a man having sexual intercourse with a woman without her consent and the marital privilege being equivalent to

consent given once for all at the time of

marriage, it follows that the mere act of

sexual communion is lawful; but there is a

wide difference between a simple act of

communion which is lawful, and an act of

communion combined with infectious contagion

endangering health and causing harm, which is

unlawful.

Now, in my respectful submission, there may be some

ambiguity in the position thus far expressed by

His Lordship, because of the initial reference to:

during such time as the ordinary relations

created by such contract subsists between

them.

But may~ direct Your Honours' attention to the

paragraph which appears in the middle of page 52 in

which His Lordship said this:

I ought perhaps to state that even if to

hold a husband liable for an assault under such circumstances would be to subject him

also to a charge of rape, the opinion I have

Lord(2) 40 3/9/91

above expressed would not be changed. No jury would be found to convict a husband of rape on

his wife except under very exceptional
circumstances, any more than they would
convict of larceny a servant who stealthily

appropriated to her own use a pin from her

mistress's pincushion. I can, however,

readily imagine a state of circumstances under

which a husband might deservedly be punished
with the penalty attached to rape, and a

person committing a theft even of a pin to the

penalty attached to larceny.

Your Honours, the upshot appears to be that it is

not possible to assert that His Lordship was of a

firm view one way or the other about whether or not

there was an immunity from liability for rape on

the part of a husband.

Next, His Lordship Mr Justice Field, at

pages 57 and 58, towards the bottom of the page

quotes from Hales Pleas of the Crown and then says

about ten lines up from the bottom:

The authority of Hale, C.J., on such a matter

is undoubtedly as high as any can be, but no

other authority is cited by him for this

proposition, and I should hesitate before I

adopted it. There may, I think, be many cases

in which a wife may lawfully refuse
intercourse, and in which, if the husband

imposed it by violence, he might be held

guilty of a crime. Suppose a wife for reasons

of health refused to consent to intercourse,

and the husband induced a third person to

assist him while he forcibly perpetrated the

act, would any one say that the matrimonial

consent would render this no crime? And there

is the great authority of Lord Stowell for

saying that the husband has no right to the

person of his wife if her health is

endangered: Popkin v Popkin.

Then, Baron Pollock at pages 63 and 64, the very

last line on 63:

The husband's connection with his wife is not only lawful, but it is in accordance with the

ordinary condition of married life. It is

done in pursuance of the marital contract and

of the status which was created by marriage,

and the wife as to the connection itself is in

a different position from any other woman, for

she has no right or power to refuse her

consent.

Lord(2) 41 3/9/91

Then follows a quotation from Hale. So, certainly,

Baron Pollock adopted wholeheartedly the view which has been expressed by Hale. Finally, may I come back to page 37 which I omitted on the way through
because His Lordship Mr Justice Smith, at page 37, appears to take a somewhat different approach than

that taken by the others of Their Lordships to whom

I have already referred who, it would appear, had a

view which was either - perhaps I may put it this

way: which is absolute either to the existence of

an immunity, full stop, or to the absence of an

immunity, full stop. His Lordship says this in the

second paragraph of his reasons:

At marriage the wife consents to the

husband exercising the marital right.	The
consent then given is not confined to a

husband when sound in body, for I suppose no
one would assert that a husband was guilty of
an offence because he exercised such right

when afflicted with some complaint of which he was then ignorant. Until the consent given at

marriage be revoked, how can it be said that

the husband in exercising his marital right
has assaulted his wife? In the present case

at the time the incriminated act was

committed, the consent given at marriage stood

unrevoked. Then how is it an assault?

The utmost the Crown can say is that the

wife would have withdrawn her consent if she

had known what her husband knew, or, in other words, that the husband is guilty of a crime, viz., an assault, because he did not inform

the wife of what he then knew. In my judgment

in this case, the consent given at marriage

still existing and unrevoked, the prisoner has

not assaulted his wife.

There would appear to be a suggestion, implicit in

that passage, that it was possible for a wife, by

some act or other, to withdraw the consent which

was to be inferred from the very act of marriage,

but His Lordship does not elaborate on the

circumstances in which it would be possible for the

wife to withdraw that consent.

BRENNAN J:  A divorce a mensa et thoro would have produced

that result, would it not?

MR KATZ:  Certainly that was the effect of the next cases to

which I will take Your Honour, but it may be that

His Lordship had in mind other acts which would

officially - I am not exactly sure what word I am

grasping for - would formally withdraw the implied

consent. As I say, it is simply left open as to

what acts would be the appropriate acts.

Lord(2) 42 3/9/91

Certainly, the divorce from bed and board would be

not so much the act of the wife as the act of a

court, and His Lordship may have had in mind some

act which the wife herself was capable of doing

without judicial intervention. It is just not

clear.

Your Honours, the next three cases are the

Clarke, Miller, and O'Brien cases which

Your Honours have in the bundle I have handed up this morning. All three of these were cases in which husbands had been charged with raping their wives and - - -

MASON CJ:  Is there any point in going through them,

Mr Katz, they are summarized in the judgment of

Lord Chief Justice Lane?

MR KATZ:  Yes, that is so. It may be appropriate only to

direct attention to something said by His Lordship

Mr Justice Lynskey about the effect of Clarence's

case if I may briefly direct Your Honours'

attention to page 286 in Miller's case.

His Lordship says, at about four or five lines up from the end of the first paragraph on the page:

But the position as outlined by Hale, so far

as I can see, has never in terms been

overruled: it has been criticized by some

judges, and approved by others, but the

curious fact is that in the many years since

Hale's Pleas of the Crown was written there is

no recorded case of a man being prosecuted for

the rape of his wife during marriage until Rex

v Clarke before Byrne J. in 1949.

The matter was considered by way of

obiter dicta by a number of judges in Regina

v Clarence.

And then His Lordship refers to some of the

passages to which I have taken Your Honours, and

then at page 288, at about point 6 on the page,

His Lordship says this:

There are no other authorities that I can

find before 1949 in which this matter was

considered, and the view which I take of the

dicta of the judges in Regina v Clarence is

that the statement of the law in Hale was

still accepted by them because their

observations were only obiter dicta, but some

seemed to lean to the view that the consent

given by the wife at marriage could in some

circumstances be revoked.

Lord(2) 43 3/9/91

Your Honours, I must confess to some considerable

difficulty in understanding precisely what

His Lordship is seeking to convey by that passage.

It appears, with respect, certainly to be highly

arguable that the effect of Clarence's case is that

one cannot be satisfied that there was any immunity

judicially declared so far as a husband's raping

his wife is concerned. But be that as it may,

Clarke, Miller and O'Brien were all a trilogy of

cases within a 25-year period which accepted the
basic proposition, that is Hale's basic

proposition, and then engrafted exceptions on to it

and that was done, ultimately, as a prelude to the

R v R, which Your Honours were taken to yesterday,

which simply abolished the presumption altogether.

I have referred to a Scottish case at the very

end of paragraph 6 of my submissions S v H.M.

Advocate. Your Honours will see from the case of R

that the Court of Appeal - five judges,

incidentally, in the English Court of Appeal - that

the judges of the English Court of Appeal followed
the Scottish case and I have included in the

materials a report of the Scottish case as well for

Your Honours. I would not propose to take

Your Honours to anything said in either R's case or

S's case.

Your Honours are aware, I think, also from

things said yesterday that leave to appeal to the

House of Lords was granted in R's case. I can tell

Your Honours that the appeal was, in fact, heard on

1 July this year. No judgment has yet been handed

down and the earliest possible time at which a

judgment may be forthcoming is in October, for the

reason that the House of Lords adjourned for the

summer vacation without having handed down a

decision.

Your Honours, in paragraph 7 I have submitted

that in the absence of any Australian authorities

on the matter at the time of the passage of the

Family Law Act, one might assume that courts in the

non-Code States would have treated the law of

Australia to be the same as the law of England had

recently been declared to be in Clarke, Miller and

O'Brien, and in paragraph 7 I refer to three

Australian decisions all of which postdate the

Family Law Act from which I derive that submission.

May I take Your Honours, for a moment, to the

case of C, which is in the materials which I have
handed to Your Honours this morning. This was a

decision of His Honour Mr Justice O'Brien, the

Chief Judge of the criminal division of the New

South Wales Supreme Court. May I very briefly

Lord(2) 44 3/9/91

direct Your Honours' attention to the paragraph

which begins at the bottom of page 148:

I can turn then to the matters raised in

relation to the four counts of rape. The law

in New South Wales, as in England, is that set

out in Steele.

Steele was an English decision which, obviously,

postdated the Family Law Act but simply adopted the

authority of the three earlier cases to which I

have referred Your Honours Clarke, Miller and

O'Brien, and His Honour Mr Justice O'Brien, having

set out the relevant passages from Clarke, Miller,

O'Brien and, ultimately, Steele's case, concludes

in the middle of page 150 following the quotation:

The law in New South Wales corresponds,

it was conceded by counsel for the accused,

with that pronouncement.

It would appear to me that His Honour, having taken that view in 1981, would obviously have taken

it in 1975 if the issue had arisen and, presumably,

so would others of the judges of the New South

Wales courts.

The next is the case of McMinn. Your Honours,

I have not supplied a copy of McMinn because I understood my learned friend, Mr Wendler, handed it

up yesterday.

MASON CJ: Yes, it was dealt with yesterday.

MR KATZ:  Yes. I do not think Your Honours have been taken

to the relevant passages, they are very brief, and

may I direct Your Honours to three passages, one in

each of the three sets of reasons for judgment. acting Chief Justice Mr Justice Starke, His Honour

says at line 8:

There can be no. doubt that for centuries

the law in England (and in Australia) has been

that a man cannot rape his wife.

So that His Honour, the Acting Chief Justice, was

prepared to assert as a positive matter that the

law of Australia was to that effect.

His Honour Mr Justice Crockett, at page 57 in the second paragraph of his reasons said:

It is plain that if such an obligation exists today (which, in the circumstances here

and after referred to, I am prepared to assume

without deciding) then it does so only whilst

Lord(2) 45 3/9/91

ordinary relations subsist between the

parties. What will serve to terminate the

obligation supposedly resting upon the wife?

There are no Australian authorities on the

point. However, a handful of comparatively

recent English authorities throws some

illumination on the matter.

So, His Honour was prepared to assume the Hale

proposition, at least at the outset, subject to the

qualifications which had since been engrafted in

England, but did not positively reach a conclusion

on the matter. And then, finally, His Honour

Mr Justice McGarvie at page 61, refers at lines 22

and following to the:

ancient principle -

referring to the ancient principle of Hale, and

then says at line 38:

That principle runs oddly counter to

modern notions of marriage. There does not

seem to have been any recent case in which it

was considered whether the principle remains

part of the common law. In many cases in

Victoria it will no longer operate because of

s. 62(2) of the Crimes Act 1958 as amended by

the Crimes (Sexual Offences) Act 1980. It is

not necessary in this case to examine the

validity of the principle.

So, like His Honour Mr Justice Crockett, His Honour

Mr Justice McGarvie found it unnecessary to reach a

conclusion on the matter. Certainly His Honour

Mr Justice Starke, the Acting Chief Justice, was prepared to assert the existence of the principle in Australian law.

Finally, the Bellchambers' case which I handed

to Your Honours this morning. This was a case in

the Court of Criminal Appeal of Tasmania, and as

Your Honours are aware the Tasmanian law at the

time was in the Code and conferred an absolute

immunity. None the less Their Honours

Justices Neasey and Everett, at page 465 towards

the bottom of the page, referred to Hale, quoted

the relevant passage from Hale and then said:

Despite a substantial degree of judicial

criticism of this principle (for example, the

views expressed nearly 100 years ago in parts
of some of the dissenting judgments among

those of the thirteen judges who comprised the

Court of Crown Cases Reserved in

Clarence ..... it still expresses the

common law -

Lord(2) 46 3/9/91

so, for whatever significance that may have, a

court of a Code State took the view that the common

law still contained the Hale principle.

May I now turn to paragraph 8 of my outline,

and for this purpose may I ask Your Honours to go

to the attachments to my outline which consist of

the legislative materials. Your Honours have

first, an extract of evidence which was given

considering the Family Law Bill, secondly, the

before the Senate Standing Committee on

report of that committee and thirdly, some extracts

from Hansard. If I may go first to the evidence. I

am referring to page 111, which is the first of the

two pages that I have included.

BRENNAN J:	What is this to show, Mr Katz?
MR KATZ:	It is to show the purpose for which section 114(2)

was included in the Family Law Act. Now, if I may

summarize, it establishes that the purpose of

inclusion of the provision was to provide a modern-

day alternative to the decree of judicial

separation and/or to the separation order which

might be given by a summary court.

On page 111, Your Honours see towards the top of the page a matter put by Senator Button.

Senator Button is speaking to Mr Barblett who I

believe to be now His Honour Mr Justice Barblett of

the Family Court. Senator Button says:

Can I just go back? What you are really

saying is that there should be a ground of

judicial separations retained to cater for a

philosophical objection. That is what it

amounts to?

And Mr Barblett says:

Yes.

Then, at the very bottom of the page,

Senator Missen says:

Let me follow that up.

And before I read the next passage may I say that

clause 90 is what became section 114.

If Clause 90, after saying what the injunction

powers are, said that in exercising powers

under that section the court may make an order relieving the parties of the marriage from the obligation to cohabit with each other - in

other words if it was spelt out in section 90

Lord(2) 47 3/9/91

that they could make specific orders that they

need not cohabit - would that not successfully
replace the need for having a decree of

judicial separation with all the overtones

that it has had in the past of blackmail and

so forth?

And then at about point 6 on the page, Your Honours

see Mr Barblett referring back to what

Senator Missen has just said and saying, in effect,

that:

Senator Missen's addition to

clause 90 ..... effectively gives what I have
asked for -

that is to say, the ability to obtain a decree of

judicial separation -

under another name.

Your Honours, the next step is the report of the

committee and Your Honours see page 28 in the

committee's report, the top of the page:

Injunctions (Clause 90) -

this is paragraph 79 of the committee's report:

The Committee recommends that Clause 90 ought

to be amended to include a provisions to the effect that when the court is exercising its

powers under sub-clause 90(1) the court may

make an order relieving the parties to the
marriage of the obligation to cohabit with

each other. The Committee is aware that this

power may be implicit in sub-clause 90(1),

however the Committee is of the opinion that

such a power should be specifically set out in

the Bill because:

(a) the power of itself is of great

importance; and

(b) some persons seeking relief from the court

may have objection to divorce and prefer the

alternative order.

Then one turns, lastly, to the extract from Hansard which succeeds the report of the committee by a

short time.	We are in the Senate now on
27 November 1974.	Your Honours see at the bottom

of the left-hand column that we have now reached

clause 90. At the top of the right-hand column

clause 90, as it then was, is set out and then

Senator Murphy, as His Honour then was, proposed

amendments to the then existing clause 90, and

Lord(2) 48 3/9/91

Your Honours see the amendments proposed. The

first was to add something to subclause(l); the

second was to:

insert the following new sub-clause: -

( lA) -

Your Honours, l(A) is identical in form to the

existing 114(2). And then following the moving of

that amendment by Senator Murphy, it is

Senator Missen who was, as Your Honours will

recall, the person responsible for putting the idea

forward first, who explains the point of the

provision. And Senator Missen says:

These are important amendments. Perhaps

attention might be drawn to them because they

add considerably to the strength of what can

be done by the injunction power under

clause 90. Now it will include orders being made relating to the use or occupancy of the
matrimonial home, which will be of great value

to people who are in a home but who do not

necessarily require divorce action at that

stage. It will also include orders relieving

a party to a marriage from any obligation to

perform marital services or render conjugal

rights. This will be a great improvement in

divorce proceedings.

the Bill and will greatly widen the Family

So, Your Honours, in my submission the course of the legislative history of the provision makes

plain what its intended function was, that is to

substitute a remedy for the then existing remedies

of decrees of judicial separation and separation

orders made by justices, both of which previous

remedies were being abolished by the Act, and my

learned friend Mr Doyle took Your Honours yesterday

to section 8(2) and 8(3) of the Act which have that

effect.

Your Honours, my submission about

subsection (2) especially in the light of that

history is this: that the subsection itself
necessarily assumed the existence of an obligation
to perform marital services and render conjugal
rights which had been created outside of the

section itself, and in the light of the history, in

my submission, one could find no reason to conclude

that the intention was, in adding the provision, to

go further than that, that is, further than merely

giving this relieving power and going so far as to

freeze the State's statute books at the time of the

passage of the Family Law Act. Nothing appears, in

my submission, to lead to the conclusion that there

Lord(2) 49 3/9/91

was some intention to prohibit the State

legislatures thereafter from regulating the

obligation to perform marital services and render

conjugal rights which was being referred to in

subsection 114(2).

I have, towards the end of paragraph 8,

referred to a well-known statement of His Honour

Mr Justice Stephen in the Ansett case, about how

rights conferred by Federal law must often be:

understood against the background to its
operation which general laws of the land,

whether State or Federal in origin provide.

And, in my submission, that is the appropriate way

in which to analyse section 114(2). The relieving

power, which it confers on the court and the right

to relief which it confers on relevantly the wife,

is to be understood against the background of

general laws and those would include after enacted

laws as well as earlier enacted laws. The approach

which is, in my submission, to be taken is one also

which was taken by Your Honour Mr Justice Dawson

and His Honour Mr Justice McHugh in the recent BLF

Inconsistency case in which Your Honours were

speaking of the very self same passage from Ansett

v Wardley and, specifically, referring to the

possibility that subsequently enacted Victorian

State laws might have an impact on the Builders

Labourers Federation once it had been deregistered under the federal legislation.

Your Honours, the very last matter with which

I deal is in paragraph 9. As I understand the

argument put on behalf of the accused, as I said a

moment ago, it has the effect of freezing the State

statute books as of the time of passage of the

Family Law Act.

BRENNAN J: That is the notional way of putting it and the

problem, perhaps, does not lie in section 114 and

the problems of presume consent in the State

statute books but whether, if one takes the extreme

view that was expressed in Clarence's case, a State

provision which said that rape could be committed

by a husband on a wife is consistent with the

exercise of the marriage power and the way in which

it has been exercised by the Commonwealth.

MR KRATZ:  Sir, I 'did not hear what Your Honour said at the

end of your - -

BRENNAN J: Whether it is consistent with the exercise by

the Commonwealth of the marriage power by enacting
the Marriage Act. In other words, if the status

created pursuant to the Marriage Act has, as one of

Lord(2) 50 3/9/91

its incidents, that extreme state of consent which

is referred to in Clarence's case by some of

Their Lordships, then is the State statute which

prohibits non-consensual consent, irrespective of

marital status, consistent with the Commonwealth

law?

MR KATZ:  Yes. It will be obvious to Your Honour that I was

under the apprehension that the accused's argument

related only to section 114(2) at the time I have

prepared the submissions. I simply adopt, in

answer to the implied question from Your Honour, what my learned friend, Mr Doyle, said about the

effect of the Marriage Act provisions. One finds

no express dealing with the matter in the Marriage

Act itself and the notion that the husband may use force in order to compel his wife to submit to

sexual intercourse, in my submission, there is no

such incident of marriage.	So far as the Hale
presumption -

BRENNAN J: If that is right, that is really the end of the

whole matter, is it not?

MR KATZ:  Yes. I merely want to direct attention, of

course, to the fact that Hale presumption was put

forward solely in the context of the criminal law

and focused simply on the existence of an immunity

in the husband from criminal liability for a

specific crime, and it is a very long march from

that to the existence of a right in the husband of

the sort which is presently being contended for.

The husband has a right to compel his wife to

submit to sexual intercourse only in this sense:

that if he should use force to compel her to submit

he is then, on the Hale presumption, immune from

criminal liability for the specific crime of rape.

Your Honour, to spin the existence of the

Marriage Act some broad ranging right in the face

as well of the authorities which make plain that

one cannot obtain judicial assistance to compel the

wife to submit, in my submission, it is just an

impossible argument.

BRENNAN J:  In your researches did you discover whether

there was anything that contributed to this
appreciated state of the law arising from the

common law's lack of desire to admit evidence of

proceedings between husband and wife in the

bedroom?

MR KATZ:  Your Honour, I have not seen anything in the cases

whatever about that matter. Your Honour is

referring to the presumption of legitimacy?

BRENNAN J: Yes.

Lord(2) 51 3/9/91

MR KATZ:  I did glancingly notice in some article, which I

think I may be able to find, some reference to the
interrelationship between the presumption of

legitimacy and the Hale presumption, but it was

really just a comment made by the bye.

BRENNAN J: If the evidence was excluded then you had

nothing but the presumption arising from marriage

to fill that link. In that way Hale's principle

might have been given real substance in criminal

law. The base then would rest solely upon an

evidentiary principle.

DAWSON J: There is a certain essential illogicality about

the Hale view. I mean if a husband can be guilty of assault, and rape is an assault, why cannot he

be guilty of rape, unless there is some other explanation such as Justice Brennan suggests?

MR KATZ:  That was certainly the view which was being

expressed by His Lordship, Mr Justice Wills, in

Clarence. The Hale theory must be that the assault

which consists solely of penetration is itself

immune, but any other force used in connection with

the penetration is itself still susceptible of

being dealt with by prosecution for assault.

DAWSON J: That is not very appealing, is it?

MR KATZ:  Not only is it not appealing, but husbands have

often been convicted of assaults in so far as they

used force preparatory to the actual act of sexual

intercourse, and indeed some of the English cases -

I am sorry, I cannot recall immediately which - it

may be the Miller case, and I must confess that I

gave Your Honours only the reference to the rape

count, not to the assault count, is a case in which

it was held that of course the husband could be

guilty of assault, except in so far as the assault

consisted of the penetration.

There is indeed a West Australian case to

which I did not propose to make reference, Caldwell

in 1976, which is exactly of that sort as well and

a case in which the Western Australian court really

pours scorn on the policy behind the Hale principle

altogether and says the only reason why the husband

is immune is because it says so here in

section 325. We are not prepared to infer from the

presence of that provision in the Act some policy in favour of the use of force by the husband, and

in so far as the husband seeks to rely on the

existence of this immunity and reason from that to

an ability to use force otherwise, we are not

prepared to draw the inference and we find him

guilty of assault in the ordinary way.

Lord(2) 52 3/9/91

I am sorry, I do not think I have answered

directly Mr Justice Brennan's question.

BRENNAN J:  You have taken it as far as you can, I think,

Mr Katz.

MR KATZ:  Yes. If Your Honours please, those are my

submissions.

MASON J: Yes, Mr Wells.

MR WELLS:  If the Court pleases, can I invite Your Honours

to take up the outline of our submissions.	I
propose, if the Court pleases, to focus this
morning upon principally paragraphs 1 and 7.

Paragraphs 2 to 4 we refer to but offer no further

submissions, we just simply put them there in order

to note the existence and extent of the

Commonwealth marriage power. Paragraphs 5 and 6

warrant some particular submissions in the light of
what has already been said, if the Court pleases,

but 1 and 7 are really the focus for my

submissions.

If the Court pleases, in a sense, it is

obvious to say that the Family Law Act introduced a

new approach to marriage and divorce. It based

itself, we submit, upon a respect for free and

equal choice by and between spouses and each of

them, and the free and equal choice that the Act

gave spouses related to the very elements of their

marriage relationship and the conditions upon which

it was to endure.

The Act, we submit, recognized the consensual

nature of the relationship, not only in its

formation but in its continuance. Thus, we submit,

the Act did away, first of all, with the notion of

matrimonial fault, as it is called, as a ground for

dissolution and in particular did away with legally

specified matrimonial offences - desertion,

cruelty, adultery, other offensive practices. It

causes of action such as enticement, criminal conversation and the like, and we have already

abolished a number of causes of action. with

noted the provisions of section 8(2) which did away

with the power to grant certain decrees.

Instead, we submit, the Act, in effect,

allowed and contemplated that each spouse was free

to treat any conduct as incompatible with the

continuation of the marital union that had been

chosen by the spouses, and upon that basis to

withdraw from that union. The only ground for

dissolution of the married union was irretrievable

breakdown of the marriage, evidenced by separation

Lord(2) 53 3/9/91

for 12 months and it, we submit, necessarily

contemplates therefore that the decision as to

whether the married union had broken down was a

decision which was ultimately left to the parties

to the marriage because it was they who chose

whether to cohabit or not.

BRENNAN J:  Does this mean that the marriage contract is,

in the language of the Plasser case, an illusory

contract?

MR WELLS:  No, it is not, Your Honour.

BRENNAN J: Well then, are there obligations?

MR WELLS:  There are some. As the Act provides there are

some obligations, certainly, that arise by reason

of marriage and in particular the obligations as
the Act contemplates them relate to the children of
or relating to the marriage and, of course, to

property to some extent.

BRENNAN J: But not to the spouses. That seems to fly in

the face of section 43 of the Act.

MR WELLS:  No, with respect. In our submission, section 43,

if Your Honour pleases, states a principle which, in its own words and indeed in reflecting, if one

likes, the common law statement, again repeated in

the Marriage Act, really says nothing about the

content of the union. The words of section 43 are:

The Family Court shall ... have regard to -

(a) the need to preserve and protect the

institution of marriage as -

so the institution of marriage is then further

specified -

the union of a man and a woman to the

exclusion of all others voluntarily entered

into for life.

Now there are elements in that. The

institution of marriage involves the union of a man

and a woman. What the section does not say or

offer is what is the nature or the content of that

union as regards mutual rights and obligations

between the spouses other than it is understood to
be a union which is to the exclusion of all others,

a union voluntarily entered into and it says

"entered into for life". One may take it that that

is the commitment that each spouse makes.

BRENNAN J:  Mr Wells, I do not think it is necessary to

delay at the moment, but if your submission were

Lord(2) 3/9/91

right, for my part I would think that the

Family Law Act is beyond the legislative power of the Commonwealth.

MR WELLS: If Your Honour pleases, I do not put a submission

which says that all is left, as it were, to the

free choice of the parties to the marriage because

the Family Law Act itself and indeed the

Marriage Act do say a lot about what is the

consequence of marriage and because, by law,

consequences are decreed from the act of marriage,
then one is talking about not simply the compact,

but one is also talking about the institution of

marriage, and in our respectful submission we would

say it does not involve any question of excessive

Commonwealth power if one is to say, as the

Family Law Act says, that in order to determine how the marriage relationship is to continue the choice

of the spouses is given a paramountcy.

That is what, in our respectful submission,

the Act amounts to and we would, with respect, take

the matter further and invite Your Honours'

attention to section 49 of the Act. Section 49

deals, as Your Honours may recall, with the grounds

of dissolution. It is one ground, it is

encompassed by separation, as that notion is
understood, and section 49 deals with the meaning
of separation. Section 49(1) specifically provides

that separation can be brought about by the act or

conduct of one party only, not by any agreement on

the part of the spouses but by the act of one party
only. That is why, we submit, there are in aid of
that very notion and philosophy, provisions such as

section 114.

Section 114, we submit, can be seen as a power

in the court to aid the exercise by the spouses or
either of them of their decision to separate, their

decision to cease cohabitation. That power can be

seen as an aid to that decision particularly where

social or cultural circumstances present obstacles

to the carrying out of th.at very decision. If the

Court pleases, the Full Court of the Family Court has already given expression to something of this

view in a decision which is in the book of cases

provided to Your Honours.

BRENNAN J:  How do you distinguish the institution of

marriage on your argument from an association

between·a man and a woman to form some kind of

loose union, so long as it should please them?

MR WELLS:  Your Honour, that is not, with respect, the

commitment that is made at marriage. One thing

distinguishes the two relationships that

Your Honour has put forward and that is that in the

Lord(2) 55 3/9/91

case of marriage, at the time of marriage, the
spouses make a commitment to their union for life.

What the Family Law Act provides is that

notwithstanding the commitment that the spouses

made in the course of the marriage, if

circumstances arise which make their cohabitation
incompatible with the union they have committed

themselves to for life, then they can give effect

to that decision by separation.

BRENNAN J:  The difference is that it seemed like a good

idea at the time?

MR WELLS:  Your Honour, no doubt it has to be said that

there are many such marriages where, for one reason
or another, lack of experience or wisdom, that is
the way the entering into the relationship is

explained. But that is not the nature of the

relationship that is entered into. The

relationship that is entered into is a commitment

for life.

BRENNAN J:  Mr Wells, if I understand your argument

correctly, I do not think this is central to your

argument. If it is though, it seems to me to be a

matter of the gravest import in which you are

propounding a notion of marriage inconsistent with

that which gave rise to the formula of words which

is to be found in section 43, and if that is so

then of course the Family Law Act is the greatest

piece of legislative legerdemain that the

Parliament has ever seen.

MR WELLS:  Your Honour, it is not central to the present

argument but it is nevertheless a proposition which

is supported, namely that the Family Law Act

embraces a view about the institution of marriage which accords a respect for the spouses' free and

equal choice as to what that union means to them

above and beyond that which the Act lays down and

the conditions therefore upon which it may

continue. But, Your Honour, the focus is on the

aid provisions that appear in section 114 which, we

contend, plainly support and are intended to

support a separation where cohabitation ceases but

by reason of, as I call them, social, cultural or

other obstacles, that separation cannot be given

effect to by a ..... then there are circumstances in
which the court will come to that party's aid in

order to make that decision a reality, and that is

in part what section 114 seeks to do.

Your Honour, can I backtrack for a moment. I

think it is perhaps important that I do not stand

here alone and put the submission that I have. I

was taking Your Honours to a decision of the Full

Family Court in the Marriage of Pavey, (1976) FLC.

Lord(2) 56 3/9/91

In the book of cases provided to Your Honours it is

behind tab no 6.

MASON CJ:	I do not think we have this book, Mr Wells.
MR WELLS:	I was given to understand that that book had been

provided, if Your Honours please. Your Honour, I

am instructed that the book was filed with the

Court on Friday.

MASON CJ: Filed where? Here?

MR WELLS:  Yes, in Adelaide, Your Honour. I suspect it may

well be languishing in the Registry.

MASON CJ:	It looks as if that is so. None of us have it.
MR WELLS:	No. Your Honours, it is only a small passage I

need to read from it.	I apologize for the fact
that Your Honours do not have the book.	The

reference to the case is in Pavey, (1976) FLC,

90-051, which is the nominated number for the case.

It is a CCH publication, the page number is 75,209

and the passages I take Your Honours to, in

particular, are at pages 75,212-213. I take

Your Honours' time momentarily just to extract what

needs to be. Their Honours in the Full Court said

this:

We also agree with the statement Todd's

case -

which was a single decision of Mr Justice Watson -

that "what comprises the marital relationship

for each couple will vary". It is for this

reason that it is difficult to formulate a

satisfactory test in cases where the parties

live under the one roof.

That is a test of whether the parties have

separated.

As sec. 48 is concerned with the marriage of

the parties, it is the content of their

marital relationship which must be examined,

not a definition of what a marital

relationship ought to include.

I will j~st pause for a moment and read back over

that, Your Honours:

it is the content of their marital

relationship -

that is, factually -

Lord(2) 57 3/9/91

which must be examined, not a definition of
what a marital relationship ought to include.

This, of course, does not mean that the

various statements about the content of the

marital relationship are useless. They do

provide valuable checklists in each case, but

they cannot be applied mechanically. If,

during the marriage, the parties treat as of

little importance something which may

ordinarily be a significant part of the

marital relationship, then that aspect of their life may be of little importance in determining whether they have separated.

The constituent elements of the marital relationship were referred to in Todd's case

in these words:

"Marriage involves many elements some or all

of which may be present in a particular

marriage - elements such as dwelling under the

same roof, sexual intercourse, mutual society

and protection, recognition of the existence

of the marriage by both spouses in public and

private relationships."

To this general statement we wish to add

but one phrase, "the nurture and support of

the children of the marriage."

On the next page, if the Court pleases, 75,213,

Their Honours say this:

Section 72 of the Family Law Act

establishes a mutual obligation upon spouses

in respect of maintenance, and this aspect of

"mutual society and protection" is the only

one which finds statutory expression. Because

of this the failure to maintain or the

withdrawal of maintenance, whether by the

action of one party or by agreement may be a

significant indication that the parties have separated. We adopt the view expressed in

Todd's case that:

"When it is asserted that a separation has

taken place it may be necessary to examine and

contrast the state of the marital relationship

before and after the alleged separation.

Which Their Honours go on to say is "a question of

fact", and it is in that context that we have put

the proposition, if the Court pleases, that in that

sense there is an importance given in the Act to

choice between spouses and hence, as I have put it,

if the Court pleases, section 114.

Lord(2) 58 3/9/91

We put it, therefore, that the notion that a

husband is entitled to insist forcibly on sexual

intercourse with his wife against her wishes can be

seen as contrary to this new approach, the

ascendancy, or at least the importance given, to

free and equal choice. We do not seek to put any

specific submissions to the Court on the position

with respect to the common law but we indicate that

as a result of the approach that our submissions

take the Commonwealth has no difficulty with the
arguments put on behalf of the State of

South Australia that the common law in Australia

should be otherwise than what is maintained by the

respondent.

If the Court pleases, can we focus next on

section 114 itself? In that respect, Your Honours will note that the provisions of the section, as we put it in our outline, provide a discretionary

civil remedy to a party to a marriage basically for

the protection of that party, and that

discretionary civil remedy stands in contrast, we

submit, with the purpose of the State law, which is

to uphold the general purposes of the criminal law

by the exercise of powers of punishment and

correction.

In the case of the discretionary civil remedy,

that is supported by powers to enforce compliance

with the court order. So from the point of view of giving effect to the discretionary remedy there are

enforcement provisions. Can I invite Your Honours'

attention briefly to them? Section 112AD heads a

division dealing with "Sanctions for failure to

comply with orders". Your Honours will see that

section 112AD itself, in subsection (2), sets out

the powers that a court has in respect of the

enforcement of an order made under section 114. It

includes a power to:

impose a sentence of imprisonment -

but Your Honours will note that by section 112AE

that period of imprisonment is no more than 12

months.

Your Honours, I take you to these provisions

because if one goes to the very end of the

division, section 112AM, the section deals with the

"Relationship between", as it calls it, "Division

and other laws". It provides that:

This section applies where an act or omission

by a person:

(a) constitutes -

Lord(2) 59 3/9/91

on the one hand -

a contravention of an order under this Act -

such as a contravention of an order made under

section 114, and on the other hand -

(b) is also an offence against any law.

It goes on to provide in subsection (2):

If the person is prosecuted in respect of the

offence, a court in which proceedings have

been brought under section 112AD in respect of

the contravention of the order shall either:

(a) adjourn those proceedings until the

prosecution has been completed; or

(b) dismiss those proceedings.

Subsection (3) provides:

The person may be prosecuted for, and

convicted of, the offence.

Subsection (4) provides:

Nothing in this section renders the person

liable to be punished twice in respect of the

same act or omission.

If one comes to apply that provision in

circumstances where, let us say, an order has

actually been made under section 114, then it

plainly covers a case, in our respectful

submission, where the order effectively prevents a

husband, let us say, from not only cohabiting but
having intercourse as part of that cohabitation,

with his wife and the same conduct, that is

contravention of that order, may also constitute

the offence of rape.

So the Act itself, in our submission, contemplates that there may be laws which impugn

conduct which is also the subject of an order under

section 114 and there are specific provisions in

the Act which specify the way in which that is to
happen. We invite the Court's attention to that
because.we submit that these specific provisions

indicate a clear intention on the part of the

Commonwealth that the scheme established under the

Family Law Act is to live with, amongst other

things, the criminal law in so far as a breach of

the criminal law may also constitute a failure to

comply with the order. That is, in our respectful

submission, a very clear intention on the part of

Lord(2) 60 3/9/91

the Commonwealth that the criminal law is intended

to have its effect in addition to the scheme

established by the Family Law Act.

We put it, if the Court pleases, in the

outline, paragraph 7 point 2, that the Parliament

has made it clear that it does not intend to

displace the criminal law, and that proposition

follows perhaps a slightly rhetorical submission,

namely that it would be wrong to maintain that a

law such as section 114, desired to protect the

party to the marriage, relieves the other party

from criminal responsibility for violent conduct -I

have said "and humiliating conduct", but one could

say "or humiliating conduct" - towards the party

protected or seeking protection.

If the Court pleases, we hand up to the Court

some short materials which I do not propose to take

Your Honours to, but they encompass the Senate
report, some part of which my learned friend Mr

Katz has taken Your Honours to. He referred to a

page of the evidence, page 111; our materials

include page 110, which we also invite the Court's

attention to. There is also included in the

materials the second reading speech relating to the
introduction of the Family Law Act and again I do

not take Your Honours to it, but it is material

that we provide in support of our submission. I

simply say this, in relation to the second reading

speech, there are in fact three second reading
speeches because of the history of events in

Parliament in the early 70's where there was, I

think, a double dissolution and a further

proroguing of the Parliament and also a

consideration by the Senate Committee of the bill,

so that eventually a fresh bill was brought in. We

have included the three speeches because the speech

which introduces this Act makes reference back to

the earlier second reading speeches.

Your Honours, can I then finally add some

short comments about the-other paragraphs in the

outline. In relation to paragraph 6 point 1, I

have already invited Your Honours attention to the

decision of the Full Family Court in the matter of

Pavey and the other matters we make reference to,

in support of our submission, do not need specific

submissions, but we invite Your Honours's attention

to them. In relation to the question of "conjugal

obligations" and whether the obligation to submit
to sexual intercourse was ever an incident of

conjugal obligations, in addition to the cases

cited by my learned friend, Mr Doyle, can we also

invite Your Honours's attention to one passage in

Hunt v Hunt - again I am very sorry that it turns out that - - -

Lord(2) 61 3/9/91

MASON CJ: We have the volume of cases now. It has been

obtained, Mr Wells.

MR WELLS:  Yes, we do have them, Your Honour. Well then, it

is at line 10 and, Your Honours, this is a decision

of Mr Justice Bonney, but the discussion that
ensued in the course of His Honour's decision

received the full approval of the Full Court and

that appears to be the reason why it was published

in the reports. The passage that we take Your

Honours to is to be found at page 133 of Hunt v

Hunt behind tab 10 of the book, and it comes after

a reference to a passage from Mr Justice Dixon's

judgment in Bartlett v Bartlett. At the very

bottom of the first column, His Honour turns to

what he calls:

The second general principle, which -

he says -

perhaps is less elementary, but is

nevertheless firmly established by authority,

is that although marriage undoubtedly involves

a duty of reasonable submission to connubial

intercourse, and although such intercourse is

a conjugal right (in the singular) so that

persistent wilful and unjustified refusal in

this respect may afford a just cause or excuse

to the other party for withdrawing from

cohabitation, yet, such refusal does not in

itself constitute a withdrawal from

cohabitation or a refusal of conjugal rights

(in the plural) as those terms are understood

in a suit for restitution of conjugal rights.

We add to that, if the Court pleases, a reference to the summary offered in the first edition of

Halsbury volume 16, a copy of which I hand up to

Your Honours - paragraph 973 of volume 16 of the

first edition.

The specific submissions, if the Court

pleases, that we put with respect to conjugal

rights and section 114(2) is to be found in

paragraph 6 point 4 of our outline and we do not

develop those submissions, except to make one brief

comment about 6 point 4, point 5, which refers to

section 114AB(l) of the Family Law Act, which
preserves the operation of State laws prescribed by
regulations, all those State laws making provision
for protection against domestic violence.

It may be thought, we submit, that in contrast

to considerations of criminal law, there was a need
to make some specific reference to that, because

the State laws also provide civil remedies and

Lord(2) 62 3/9/91

there might, unless a specific provision were made,

be very much a question as to whether, in that

respect, the Commonwealth Act occupied the field exclusively, hence the necessity to refer to it.

But the necessity to refer to that does not carry,

we submit, the converse proposition, namely that

any other laws that might bear upon a relationship

between husband and wife are excluded by some

exclusive operation. Those are our submissions, if

the Court pleases.

MASON CJ:	Yes,Mr Wendler, do you wish to reply?
MR WENDLER:	If the Court pleases, there is only one matter

which I wish to mention and that arose on the

submissions made by Mr Katz, concerning the first

count on the Attorney General's information. Lest

there be any misunderstanding, the constitutional

challenge is only limited to the second count.	If
the Court pleases.

MASON CJ:  Yes, thank you,Mr Wendler. The Court will

consider its decision in this matter.

AT 11.08 AM THE MATTER WAS ADJOURNED SINE DIE

Lord(2) 63 3/9/91