PGA v The Queen

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

PGA  APPELLANT

AND

THE QUEEN  RESPONDENT

PGA v The Queen [2012] HCA 21
30 May 2012
A15/2011

ORDER

Appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation

D M J Bennett QC with P F Muscat SC and A L Tokley for the appellant (instructed by Legal Services Commission (SA))

M G Hinton QC, Solicitor-General for the State of South Australia with K G Lesses for the respondent and intervening on behalf of the Attorney-General for the State of South Australia (instructed by Director of Public Prosecutions (SA))

S J Gageler SC, Solicitor-General of the Commonwealth with G A Hill intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

J D McKenna SC with G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

PGA v The Queen

Criminal law – Rape – Husband's immunity from prosecution for rape of wife – Presumption of consent to intercourse by wife in marriage – Appellant charged in 2010 with two counts of rape contrary to s 48 of Criminal Law Consolidation Act 1935 (SA) – Alleged rapes committed in 1963 against then spouse – Legislative amendments enabled institution of proceedings despite lapse of time – Elements of offence of rape in 1963 supplied by common law – Whether in 1963 common law of Australia presumed consent by wife in marriage.

Precedent – Judicial method – Development of common law – Whether presumption of consent by wife in marriage was part of common law of Australia – Whether statement of common law in R v L (1991) 174 CLR 379 applied to events alleged to have occurred in 1963.

Words and phrases – "common law", "marital exemption", "marital immunity", "presumption of consent", "rape", "retrospective application".

Criminal Law Consolidation Act 1935 (SA), s 48.
Matrimonial Causes Act 1857 (UK) (20 & 21 Vict c 85).

1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND KIEFEL JJ.   The appellant and his wife, the complainant, were lawfully married in South Australia on 1 September 1962.  At the relevant times in 1963 they remained lawfully married and were cohabiting in South Australia as husband and wife at the house of her parents; there were in force no legal orders or undertakings of any kind which affected their matrimonial relationship.

   The charges

2. On 5 July 2010, by information of the Director of Public Prosecutions of South Australia, the appellant was charged for trial in the District Court of South Australia with two counts of carnal knowledge, with four counts of assault occasioning actual bodily harm and, what is immediately relevant for this appeal, with two counts of rape (counts 3 and 5) contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act"). The particulars of count 3 were that between 22 March 1963 and 25 March 1963, at Largs Bay in South Australia, the appellant had vaginal sexual intercourse with his wife without her consent. The particulars of count 5 were that on or about 14 April 1963, also at Largs Bay, the appellant had vaginal sexual intercourse with his wife without her consent.

3. The issue before the Court is whether the appellant is correct in his contention that, as a matter of the common law, upon their marriage in 1962 his wife had given her consent to sexual intercourse and thereafter could not retract her consent, at least while they remained lawfully married, with the result that he could not be guilty of raping her as charged by counts 3 and 5. 

4. The proposition of law upon which the appellant relies has its source in a statement in extra‑judicial writings of Sir Matthew Hale, Chief Justice of the Court of King's Bench (1671‑1676), which were first published in 1736 as The History of the Pleas of the Crown.  The statement by Hale is more fully set out later in these reasons[1], but is encapsulated in the bald proposition that a husband cannot be guilty of a rape he commits upon his wife.  It was repeated in East's work A Treatise of the Pleas of the Crown, published in 1803[2]; by Chitty in his A Practical Treatise on the Criminal Law, published in 1816[3]; and by Russell in A Treatise on Crimes and Misdemeanors, the first edition of which was published in 1819[4].  In each case the proposition was further repeated in later 19th century editions.  What, however, was lacking in all these standard texts was any statement and analysis of reasoning which might have supported the statement by Hale and its continued acceptance.

   [1]At [37]‑[38].

   [2]Volume 1, Ch 10, §8.

   [3]Volume 3 at 811.

   [4]Volume 1, Bk 2, Ch 6, §1.

5. Given this state of affairs, it is perhaps not surprising that the Canadian Criminal Code of 1892 (s 266) and the Criminal Code of Queensland of 1899 (s 347), in defining the crime of rape, included the phrase "not his wife"[5].  The provisions in the Queensland Code, and those of Western Australia and Tasmania, were to be amended in 1989, 1985 and 1987 respectively[6].  The attempted abstraction and statement of doctrine in provisions of a code by means of propositions which do not represent generalised deductions from particular instances in the case law occasions difficulty when the common law later is shown to be to different effect[7].  Justice Holmes, in his essay "Codes, and the Arrangement of the Law"[8], wrote:

   "New cases will arise which will elude the most carefully constructed formula.  The common law, proceeding, as we have pointed out, by a series of successive approximations – by a continual reconciliation of cases – is prepared for this, and simply modifies the form of its rule.  But what will the court do with a code?  If the code is truly law, the court is confined to a verbal construction of the rule as expressed, and must decide the case wrong.  If the court, on the other hand, is at liberty to decide ex ratione legis, – that is, if it may take into account that the code is only intended to declare the judicial rule, and has done so defectively, and may then go on and supply the defect, – the code is not law, but a mere text‑book recommended by the government as containing all at present known on the subject."

   [5]By 1984 over 40 of the United States retained statute laws conferring some form of marital exemption for rape:  People v Liberta 474 NE 2d 567 at 572‑573 (1984).  However, in that case the New York provision was held invalid as denying the equal protection required by the 14th Amendment to the United States Constitution.

   [6]See R v L (1991) 174 CLR 379 at 402; [1991] HCA 48.

   [7]See Murray v The Queen (2002) 211 CLR 193 at 206‑207 [40]; [2002] HCA 26; Director of Public Prosecutions (NT) v WJI (2004) 219 CLR 43 at 53‑54 [30]‑[31]; [2004] HCA 47.

   [8](1870) 5 American Law Review 1, reprinted in Novick (ed), The Collected Works of Justice Holmes, (1995), vol 1, 212 at 213.

6. Indeed, in 1888, among the 13 judges sitting in the Court for Crown Cases Reserved, on the case stated in R v Clarence[9] with respect to charges of "unlawfully and maliciously inflicting grievous bodily harm" and "assault occasioning actual bodily harm", contrary to s 20 and s 47 respectively of the Offences against the Person Act 1861 (UK)[10] ("the 1861 UK Act"), differing views had been expressed as to whether the consent of the wife to intercourse with her husband had been vitiated by his failure to disclose to her that he was suffering from a contagious venereal disease.

   [9](1888) 22 QBD 23.

   [10]24 & 25 Vict c 100.

7. Thereafter, in the annotation to s 48 of the 1861 UK Act which appeared in Halsbury's Statutes of England, published in 1929[11], it was said:

   "It is said that a husband cannot be guilty of rape upon his wife as a principal in the first degree".  (emphasis added)

   The 28th edition of Archbold's Pleading, Evidence & Practice in Criminal Cases, published in 1931, four years before the enactment of the CLC Act, cited Hale for the proposition expressed as:

   "It is a general proposition that a husband cannot be guilty of a rape upon his wife ... but it would seem that the proposition does not necessarily extend to every possible case"[12].

   In the intervening period there appears to have been no reported case in England in which a husband had been prosecuted for the rape of his wife during their cohabitation[13].

   [11]Volume 4 at 615.

   [12]At 1043.

   [13]See R v R [1992] 1 AC 599 at 614.

8. As it stood in 1963, s 48 of the CLC Act stated:

   "Any person convicted of rape shall be guilty of felony, and liable to be imprisoned for life, and may be whipped."

9. It is accepted that the elements of the offence of rape identified in s 48 were supplied by the common law.

10. Section 4 of the CLC Act had wholly repealed The Criminal Law Consolidation Act 1876 (SA).  As amended by s 13 and the Schedule to the Criminal Law Amendment Act 1925 (SA), s 60 of the 1876 statute had read:

    "Whosoever shall be convicted of the crime of rape shall be guilty of felony, and, being convicted thereof, shall be liable to be imprisoned for life, with hard labor, and may be whipped."[14]

    [14]The Criminal Law Amendment Act 1925 (SA) omitted the words "or any term not less than four years".

11. The scheme of the legislation in South Australia, in its various forms, was to classify the offence of rape as a felony and to specify the range of punishments upon conviction. This followed the pattern in s 48 of the 1861 UK Act. The legislative emphasis upon the classification of the crime and the punishments which might be inflicted, leaving the elements of the crime itself to the common law, reflected past fluctuations in the statute law. Shortly after the enactment of the 1861 UK Act, there appeared in the 5th edition (1877) of Russell's work, A Treatise on Crimes and Misdemeanors[15], the following:

    "This offence formerly was, for many years, justly visited with capital punishment; but it does not appear to have been regarded as equally heinous at all periods of our Constitution. Anciently, indeed, it appears to have been treated as a felony, and, consequently, punishable with death; but this was afterwards thought too hard; and, in its stead, another severe but not capital punishment was inflicted by William the Conqueror, namely, castration and loss of eyes, which continued till after Bracton wrote, in the reign of Henry III. The punishment for rape was still further mitigated, in the reign of Edward I, by the statute of Westm 1, c 13, which reduced the offence to a trespass, and subjected the party to two years' imprisonment, and a fine at the King's will. This lenity, however, is said to have been productive of terrible consequences; and it was, therefore, found necessary, in about ten years afterwards, and in the same reign, again to make the offence of forcible rape a felony, by the statute of Westm 2, c 34. The punishment was still further enhanced by the 18 Eliz c 7, s 1."

    [15]Volume 1 at 858 (footnote omitted).

    The lapse of time

12. Something should be said respecting the legal significance of the length of time between the alleged conduct in 1963 and the institution of proceedings in 2010. As the CLC Act stood in 1963, it included s 76a[16]. The effect of s 76a was that in respect of offences, including an offence against s 48, no information was to be laid more than three years after the commission of the offence. Section 76a was repealed by the Criminal Law Consolidation Act Amendment Act 1985 (SA).  However, in R v Pinder[17] it was held that the repeal of s 76a did not authorise the laying of an information which would deprive a person of immunity already acquired before the repeal of s 76a. The response of the legislature was to reverse the effect of this decision by the enactment of s 72A of the CLC Act by the Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act 2003 (SA). The result was that a person, such as the appellant, who had acquired immunity by reason of the operation of the repealed s 76a had lost that immunity and could now be prosecuted.

    [16]This had been added by the Criminal Law Consolidation Act Amendment Act 1952 (SA).

    [17](1989) 155 LSJS 65.

13. Changes have been made to the elements of the offence of rape, beginning with the Criminal Law Consolidation Act Amendment Act 1976 (SA), but it has not been submitted that these changes to the elements of the offence apply retrospectively.

    The permanent stay application

14. On 6 July 2010 Herriman DCJ gave reasons for dismissing an application by the appellant for a permanent stay of proceedings.  His Honour's reasons included the following passage:

    "The complainant's evidence is that in 1960 and 1961, when she was 15 or 16, the accused was in a relationship with her and she says that at that time they were living in her parents' house, albeit that he slept in a separate room.  They were ultimately married in September 1962, when she was 17, but she says that before that age she had sexual intercourse with him on two occasions.  Those two occasions represent counts 1 and 2 on the information.

    The parties then lived as husband and wife in her parents' house until mid‑1963, when they went to their own premises.  They separated in 1969.

    The complainant says that on two occasions, in March and April 1963, which she relates to times immediately before and soon after the birth of their first child, the accused had forcible sexual intercourse with her against her will.

    She says that she did not, at any time during the marriage, complain of carnal knowledge or, indeed, of that forced sexual intercourse.

    The time for laying of any such charges was then within three years of the act, so that the time for laying a complaint with respect to the carnal knowledge counts expired in about 1964 and, with respect to rape, in about 1966.  Those time limits were not abolished until the year 2003.  More importantly, there was, and, indeed, there remains, a real question as to whether in 1963 an offence of rape in marriage, as it is commonly called, was then part of the common law of this State."

15. His Honour went on to stay the trial pending the statement for the Full Court of the Supreme Court of South Australia of a case under s 350(2)(b) of the CLC Act. This dealt with the argument of the appellant that at the time of the alleged offences in 1963, he could not, as a matter of law, have committed the crime of rape upon his wife.

16. What was said in 1991 by four of the five members of this Court in R v L[18] has been treated by the parties in the present litigation at least as having the result that by 1991 it was no longer the common law in Australia that by marriage a wife gave irrevocable consent to sexual intercourse with her husband.  Herriman DCJ saw the outstanding issue for determination as being "was the offence of rape by one lawful spouse of another ... an offence known to the law of South Australia as at 1963?".  A question to this effect was stated for consideration by the Full Court[19].  The Court (Doyle CJ and White J; Gray J dissenting) ordered that the question be answered 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 was of the contrary opinion and would have answered the question in the negative and applied the presumption of irrevocable consent.

    [18](1991) 174 CLR 379 at 390 per Mason CJ, Deane and Toohey JJ, 405 per Dawson J.

    [19](2010) 109 SASR 1. The Full Court sat as the Court of Criminal Appeal: see Lipohar v The Queen (1999) 200 CLR 485 at 504 [41]; [1999] HCA 65.

    The appeal to this Court

17. By special leave the appellant appeals to this Court seeking an order setting aside the answer given by Doyle CJ and White J.  By Notice of Contention the respondent submits that, regardless of what follows from the decision in R v L[20], the answer by Doyle CJ and White J, the majority in the Full Court, is to be supported on the basis that:  (a) "the supposed marital exemption to the offence of rape ... was never part of the common law of Australia"; or (b) "if it ever was part of the common law of Australia, it ceased to be so as at the date of the commission of the offences in this matter".

    [20](1991) 174 CLR 379.

18. For the reasons which follow, if the "marital exemption" ever was part of the common law of Australia, it had ceased to be so by the time of the enactment in 1935 of s 48 of the CLC Act and thus before the date of the commission of the alleged offences charged as count 3 and count 5. It follows that the appeal must be dismissed. That conclusion does not involve any retrospective variation or modification by this Court of a settled rule of the common law. At the time of the commission of the alleged offence the common law rule for which the appellant contends did not exist.

    The term "the common law"

19. The references above to "the common law" and "the common law of Australia" require further analysis before consideration of the immediate issue concerning the crime of rape upon which this appeal turns.

20. In his contribution under the heading "common law" in The New Oxford Companion to Law[21], Professor A W B Simpson distinguishes five senses in which that term is used.  The primary sense is that body of non‑statutory law which was common throughout the realm and so applicable to all, rather than local or personal in its application.  An example of such local or personal laws is the customary mining laws which had applied in various localities in England[22].  The second sense of the term is institutional, to identify the body of law administered in England by the three royal courts of justice, the King's Bench, Common Pleas and Exchequer, until the third quarter of the 19th century.  The third sense is a corollary of the second, the expression "the common law" differentiating the law administered by those courts from the principles of equity administered in the Court of Chancery (and, one should add, from the law applied in the ecclesiastical courts until 1857 and the law applied in courts of admiralty).

    [21]Cane and Conaghan (eds), The New Oxford Companion to Law, (2008) at 164‑166.

    [22]See TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576 at 587 [30]‑[31]; [2010] HCA 49.

21. In that regard, Sir George Jessel MR emphasised in In re Hallett's Estate[23] that, while the rules of the common law were "supposed to have been established from time immemorial", those of equity had been invented, altered, improved, and refined by the Chancellors from time to time, and he instanced "the separate use of [ie trust for] a married woman".  With the development since the second half of the 19th century of appellate structures governing all species of primary decisions, judicial reasoning has tended not to invoke time immemorial and rather to follow the course which had been taken by the Chancellors in expounding legal principle.

    [23](1879) 13 Ch D 696 at 710.

22. The fourth and fifth senses of "common law" identified by Professor Simpson are as follows:

    "The term 'common law' came, in a fourth sense, to have the connotation of law based on cases, or law evolved through adjudication in particular cases, as opposed to law derived from the analysis and exposition of authoritative texts.  Indeed sometimes 'common law' is more or less synonymous with the expression 'case law'.  Since the common law was developed by the judges, interacting with barristers engaged in litigation, the expression 'common law' came, in a related fifth sense, to mean law made by judges."

    This draws attention to a difficulty in the appellant's reliance in this case upon a principle of the common law based upon a statement in a text published in 1736, many years after the death of the author, without citation of prior authority and lacking subsequent exposition in cases where it has been repeated.

23. In that regard, observations by six members of the Court in the Native Title Act Case[24] are significant.  Their Honours noted that the term "common law" might be understood not only as a body of law created and defined by the courts in the past, but also as a body of law the content of which, having been declared by the courts at a particular time, might be developed thereafter and be declared to be different.

    [24]Western Australia v The Commonwealth (1995) 183 CLR 373 at 484‑486; [1995] HCA 47.

24. Writing at the time of the establishment of this Court, and when he was Professor of Law at the University of Adelaide, Sir John Salmond said[25]:

    "The statement that a precedent gains in authority with age must be read subject to an important qualification.  Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits.  So with the authority of judicial decisions.  A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions.  Without having been expressly overruled or intentionally departed from, it may become in course of time no longer really consistent with the course of judicial decision.  In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all authority and validity.  The law becomes animated by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative."

    [25]Salmond, "The Theory of Judicial Precedents", (1900) 16 Law Quarterly Review 376 at 383.  See also Holmes, "Codes, and the Arrangement of the Law", (1870) 5 American Law Review 1, reprinted in Novick (ed), The Collected Works of Justice Holmes, (1995), vol 1, 212 at 212‑213.

    The term "the common law of Australia"

25. Finally, in his treatment of "common law", Professor Simpson refers to the expansion of British imperial power and the creation of "a common law world".  The common law was received in the Province of South Australia with effect 19 February 1836, but despite the differing dates of the reception of the common law in the Australian colonies, the common law was not disintegrated into six separate bodies of law; further, what was received included the method of the common law, which in Australia involved judicial determination of particular parts of the English common law which were inapplicable to local conditions[26].

    [26]Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466‑467; [1995] HCA 44; Lipohar v The Queen (1999) 200 CLR 485 at 508‑509 [54]‑[55]; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 557‑558 [99]‑[101], 559‑560 [104], 588‑589 [193]‑[196]; [2001] HCA 29; R v Gardener and Yeurs (1829) NSW Sel Cas (Dowling) 108; Ex parte The Rev George King (1861) 2 Legge 1307; Campbell v Kerr (1886) 12 VLR 384.

26. The "common law" which was received did not include the jurisdiction with respect to matrimonial causes (including suits for declarations of nullity of marriage, judicial separation (a mensa et thoro) and restitution of conjugal rights) which in England was exercised by the ecclesiastical courts.  This exclusion appears to have been a deliberate decision by the Imperial authorities[27].  Further, unlike the situation in England, in the Australian colonies there was to be no established religion[28].  The Anglican church was expressly enjoined from exercising any authority or jurisdiction in matrimonial causes[29].

    [27]Castles, An Australian Legal History, (1982) at 140‑142; Bennett, "The Establishment of Divorce Laws in New South Wales", (1963) 4 Sydney Law Review 241 at 242.

    [28]Wylde v Attorney‑General (NSW) (at the Relation of Ashelford) (1948) 78 CLR 224 at 257, 275‑276, 285‑286, 298; [1948] HCA 39; Scandrett v Dowling (1992) 27 NSWLR 483 at 534‑541; Shaw, The Story of Australia, (1955) at 98‑100.

    [29]Wylde v Attorney‑General (NSW) (at the Relation of Ashelford) (1948) 78 CLR 224 at 284‑285; Bennett, "The Establishment of Divorce Laws in New South Wales", (1963) 4 Sydney Law Review 241 at 242.

27. The result was that the jurisdiction with respect to matrimonial causes, as well as divorce, which has been exercised by the colonial and State courts always has been derived from local statute law, not received "common law".

28. Further, in Skelton v Collins[30], Windeyer J said of the reception in the Australian colonies of the doctrines and principles of the common law:

    "To suppose that this was a body of rules waiting always to be declared and applied may be for some people satisfying as an abstract theory.  But it is simply not true in fact.  It overlooks the creative element in the work of courts.  It would mean for example, that the principle of Donoghue v Stevenson[31], decided in the House of Lords in 1932 by a majority of three to two, became law in Sydney Cove on 26th January 1788 or was in 1828 made part of the law of New South Wales by 9 Geo IV c 83, s 25.  In a system based, as ours is, on case law and precedent there is both an inductive and a deductive element in judicial reasoning, especially in a court of final appeal for a particular realm or territory."

    [30](1966) 115 CLR 94 at 134; [1966] HCA 14.

    [31][1932] AC 562.

    Inductive and deductive reasoning

29. This creative element of both inductive and deductive reasoning in the work of the courts in Australia includes the taking of such steps as those identified by Sir Owen Dixon in his address "Concerning Judicial Method"[32].  In his words, these are:  (i) extending "the application of accepted principles to new cases"; (ii) reasoning "from the more fundamental of settled legal principles to new conclusions"; and (iii) deciding "that a category is not closed against unforseen instances which in reason might be subsumed thereunder". 

    [32](1956) 29 Australian Law Journal 468 at 472.

30. To these steps may be added one which is determinative of the present appeal.  It is that where the reason or "foundation"[33] of a rule of the common law depends upon another rule which, by reason of statutory intervention or a shift in the case law, is no longer maintained, the first rule has become no more than a legal fiction and is not to be maintained. 

    [33]See the statement by Lord Penzance in Holmes v Simmons (1868) LR 1 P & D 523 at 528‑529.

31. An example is provided by a division of opinion in Brown v Holloway[34] and Edwards v Porter[35] respectively between this Court and the House of Lords, as to the consequences of the Married Women's Property Act 1882 (UK) ("the 1882 UK Act") and its Queensland counterpart[36].  Of those cases, it was said in Thompson v Australian Capital Television Pty Ltd[37]:

    "The issue [in Edwards v Porter] concerned the effect of the provision in [the 1882 UK Act] that married women were to be capable of suing or being sued as if each were a feme sole, the immediate issue being whether a husband remained liable at common law with his wife for a tort committed by her during joint coverture.  In this Court it had previously been decided by Griffith CJ, O'Connor and Isaacs JJ that the liability of the husband was gone[38].  At common law the wife had been liable for her own torts but there was no way in which that liability could be enforced save by an action against her in which her spouse was joined as a party.  The joinder of the husband was necessary only because the liability of the wife could not be made effective without his joinder as a party.  The legislation[39] removed that procedural disability and therefore the reason which had rendered the husband a necessary party.

    In Edwards v Porter, without consideration of the reasoning of this Court in Brown v Holloway, their Lordships divided 3:2 in favour of a decision that, notwithstanding the legislation, the husband remained liable to suit with his wife for her torts[40].  One of the minority, Viscount Cave said[41]:

    'The whole reason and justification for joining a husband in an action against his wife for her post‑nuptial tort has therefore disappeared; and it would seem to follow, upon the principle "cessante ratione cessat lex," that he is no longer a necessary or proper party to such an action.'"

    [34](1909) 10 CLR 89; [1909] HCA 79.

    [35][1925] AC 1.

    [36]Married Women's Property Act 1890 (Q).

    [37](1996) 186 CLR 574 at 614‑615; [1996] HCA 38. See also at 584‑585, 591.

    [38]Brown v Holloway (1909) 10 CLR 89.

    [39]In Brown v Holloway, the Married Women's Property Act 1890 (Q).  [See also Married Women's Property Act 1883 (Tas), Married Women's Property Act 1883‑4 (SA), Married Women's Property Act 1884 (Vic), Married Women's Property Act 1892 (WA), Married Women's Property Act 1893 (NSW).]

    [40]Later, in Ford v Ford (1947) 73 CLR 524 at 528; [1947] HCA 7, Latham CJ expressed the opinion that, in accordance with the then prevailing doctrine in Piro v W Foster & Co Ltd (1943) 68 CLR 313; [1943] HCA 32, this Court would follow the House of Lords at the expense of its own earlier decision. In any event, legislation in all States and Territories ensured that married status has no effect on the rights and liabilities of a woman in tort: Balkin and Davis, Law of Torts, 2nd ed (1996) at 836.

    [41]Edwards v Porter [1925] AC 1 at 10.

32. It is with this reasoning in mind that there is to be understood the earlier statement by Dawson J in R v L[42] 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."

    That statement points the way to the resolution of this appeal.

    [42](1991) 174 CLR 379 at 405.

    The common law crime of rape

33. The point should first be made that, the issue of irrevocable consent by a wife apart, the common law with respect to the crime of rape did not remain static.

34. Sir Edward Coke in The First Part of the Institutes of the Laws of England early in the 17th century wrote[43]:

    "'Rape.'  Raptus is, when a man hath carnall knowledge of a woman by force and against her will."

    In 1957 in their joint reasons in Papadimitropoulos v The Queen[44], Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ referred to Australian decisions given in 1915, 1919 and 1947 when stating:

    "The modern history of the crime of rape shows a tendency to extend the application of the constituent elements of the offence.  The 'violenter et felonice rapuit' of the old Latin indictment is now satisfied although there be no use of force:  R v Bourke[45].  The 'contra voluntatem suam' requires only a negative absence of consent; (as to the need of the man's being aware of the absence of consent, see R v Lambert[46]).  The 'violenter et felonice carnaliter cognovit' is established if there has been some degree of penetration although slight, and no more force has been used than is required to effect it:  R v Bourke[47]; R v Burles[48]."

    Their Honours added[49]:

    "To return to the central point; rape is carnal knowledge of a woman without her consent:  carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing.  But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape."

    [43](1628), Section 190.

    [44](1957) 98 CLR 249 at 255; [1957] HCA 74.

    [45][1915] VLR 289.

    [46][1919] VLR 205 at 213.

    [47][1915] VLR 289.

    [48][1947] VLR 392.

    [49](1957) 98 CLR 249 at 261.

35. The reference in Papadimitropoulos to "[t]he modern history of the crime of rape" may be seen as foreshadowing two points with respect to the development of the common law made by Dixon CJ shortly thereafter.  In Commissioner for Railways (NSW) v Scott[50] Dixon CJ spoke of the gradual growth of the legal system by proceeding by reasoning from accepted notions about remedies and rights to the evolution of rules "to govern new or changed situations to which an ever developing social order gives rise"; he went on to observe that "[t]he resources of the law for superseding or avoiding the obsolescent have for the most part proved sufficient".          It is upon that sufficiency that the respondent relies in this appeal.

    [50](1959) 102 CLR 392 at 399‑400; [1959] HCA 29.

    The statement by Hale

36. What now follows in these reasons emphasises that some care is required when visiting what Professor Glanville Williams described as "the museum of the English criminal law"[51].

    [51]Williams, "The Legal Unity of Husband and Wife", (1947) 10 Modern Law Review 16 at 20.

37. The relevant passage in The History of the Pleas of the Crown appears in Ch 58, headed "Concerning felonies by act of parliament, and first concerning rape".  The importance of statutory intervention in this respect may be seen from the passage from Russell's treatise set out earlier in these reasons[52].

    [52]At [11].

38. Hale referred to the statement by Bracton that it was a good exception to an appeal (ie formal accusation) of rape that the parties were living in amicable concubinage, adding

    "and the reason was, because that unlawful cohabitation carried a presumption in law, that it was not against her will". 

    Hale went on to say:

    "But this is no exception at this day[.  I]t may be an evidence of an assent, but it is not necessary that it should be so, for the woman may forsake that unlawful course of life."  (emphasis added)

39. This is followed by the critical statement:

    "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."  (emphasis added)

40. Several points may be made immediately.  First, it is apparent from Hale's treatment of Bracton's view in the 13th century of concubinage that he did not regard what had been said in past times as necessarily expressing the common law "at this day" four centuries later. 

41. Secondly, Hale gave, as the reason for the proposition that a husband cannot be guilty of a rape upon his wife, the nature in law of the matrimonial relationship.  But, in that regard, it was well settled that marriage was constituted by the present consent of the parties expressed under such circumstances as the law required, but without the requirement for consummation to complete the marriage[53].  Further, as explained later in these reasons[54], the ecclesiastical courts did not enforce any duty of sexual intercourse between husband and wife. 

    [53]Dalrymple v Dalrymple (1811) 2 Hag Con 54 at 62‑63 [161 ER 665 at 668‑669]; R v Millis (1844) 10 Cl & F 534 at 719 [8 ER 844 at 913].

    [54]At [49]-[50].

42. Thirdly, Hale did not explain the character in law of the proposition respecting rape in marriage, whether it stated an element of the offence, a defence, or an immunity.  Nor did Hale refer to any prior cases which might be said to illustrate and support the proposition.  From the immediately preceding treatment by Hale of Bracton it is apparent that the proposition is more than a bar to the reception of evidence by the wife or a statement of her absolute testimonial incompetence in this respect.  This is further apparent from what immediately follows in Hale's text.  This is a treatment of what had been decided at the trial of Lord Audley before the House of Lords in 1631[55] as follows:

    "A the husband of B intends to prostitute her to a rape by C against her will, and C accordingly doth ravish her, A being present, and assisting to this rape:  in this case these points were resolved, 1. That this was a rape in C notwithstanding the husband assisted in it, for tho in marriage she hath given up her body to her husband, she is not to be by him prostituted to another.  2. That the husband being present, aiding and assisting, is also guilty as a principal in rape, and therefore, altho the wife cannot have an appeal of rape against her husband, yet he is indictable for it at the king's suit as a principal.  3. That in this case the wife may be a witness against her husband, and accordingly she was admitted, and A and C were both executed."

    It should be added that in the 19th century, it was held in the Supreme Judicial Court of Massachusetts[56] that there should be no arrest of judgment on the ground that the indictment had not alleged that the complainant was not the wife of any of those charged with raping her.  The relevant passage from Hale had been cited, but Bigelow J responded[57]:

    "Such an averment has never been deemed essential in indictments for rape, either in this country or in England.  The precedents contain no such allegation.  See authorities before cited.  A husband may be guilty at common law as principal in the second degree of a rape on his wife by assisting another man to commit a rape upon her; Lord Audley's case, 3 Howell's State Trials, 401; and under our statutes he would be liable to be punished in the same manner as the principal felon.  Rev Sts c 133, §1.  An indictment charging him as principal would therefore be valid.

    Of course, it would always be competent for a party indicted to show, in defence of a charge of rape alleged to be actually committed by himself, that the woman on whom it was charged to have been committed was his wife.  But it is not necessary to negative the fact in the indictment."

    [55]The Trial of Lord Audley (1631) 3 St Tr 401.

    [56]Commonwealth v Fogerty 74 Mass 489 (1857).

    [57]74 Mass 489 at 491 (1857).

43. Thus it will be seen that whatever its character in law, Hale's proposition was not framed in absolute terms, given his treatment of Lord Audley's Case.  But what is important for the present appeal is further consideration of the reason given by Hale, which was based in an understanding of the law of matrimonial status in the second half of the 17th century when he wrote.

    Matrimonial status and its incidents in England

44. In the period in which Hale wrote, and until the significant legislative changes in the course of the 19th century, each of the three jurisdictions in England represented by the courts of common law, the courts of equity and the ecclesiastical courts, had distinct roles in matters affecting matrimonial status[58].  The law applied in the common law courts had absorbed much canon law learning and it defined basic concepts such as legitimacy, procedural rights at law between spouses, and the duties and responsibilities of husbands, including their rights and duties in respect of the contracts and torts of their wives.  Marriage had important consequences in property law, for establishing and securing inheritance of legal estates in land.  In such contexts a court of common law would determine whether there had been a marriage.  The common law also provided forms of action such as breach of promise to marry, criminal conversation by adulterers and seduction of daughters. 

    [58]See the discussion by Professor Cornish in The Oxford History of the Laws of England, (2010), vol 13 at 724‑726.

45. As already observed[59] by reference to the statement of Sir George Jessel MR in In re Hallett's Estate[60], equity intervened in a notable fashion by means of the trust to reserve separate property for a wife after her marriage.  In his lecture entitled "Of Husband and Wife", Chancellor Kent, after referring to the incompetency at common law of a married woman to deal with her property as a feme sole[61], went on to contrast the position in equity and described the procedural consequences as follows[62]:

    "The wife being enabled in equity to act upon property in the hands of her trustees, she is treated in that court as having interests and obligations distinct from those of her husband.  She may institute a suit, by her next friend, against him, and she may obtain an order to defend separately suits against her; and when compelled to sue her husband in equity, the court may order him to make her a reasonable allowance in money to carry on the suit."

    [59]At [21].

    [60](1879) 13 Ch D 696 at 710.

    [61]Kent, Commentaries on American Law, (1827), vol 2, 109 at 136.

    [62]Kent, Commentaries on American Law, (1827), vol 2, 109 at 137.

46. The provision in the 1882 UK Act and in the corresponding colonial married women's property legislation[63] that a married woman was capable of acquiring, holding and disposing of any real or personal property as her separate property, as if she were a feme sole, "without the intervention of any trustee", represented a triumph in statutory form of the principles of equity[64].  However, it was not until 1862, with the decision of Lord Westbury LC in Hunt v Hunt[65], that the Court of Chancery enforced a negative covenant in a deed of separation not to sue in the ecclesiastical courts (or after 1857 in the Divorce Court) for restitution of conjugal rights.

    Ecclesiastical courts in England had limited powers to order separation of spouses but could not order the dissolution of marriage.  This required a statute.  Hale wrote in a period in which Parliamentary intervention was beginning.  In 1669 a private Act was granted to Lord de Roos, and in 1692 to the Duke of Norfolk; only five such divorces were granted before 1714, but between 1800 and 1850 there were 90[66].  (Divorce by private Act of the legislature was to be attempted in 1853 in New South Wales, but the Instructions issued to colonial governors required that any Bill dealing with divorce be reserved for the Queen's pleasure[67] and the Royal Assent was only given to the Bill after some delay[68].)

    [63]See fn 39.

    [64]Yerkey v Jones (1939) 63 CLR 649 at 675‑676; [1939] HCA 3.

    [65](1862) 4 De G F & J 221 [45 ER 1168]; see also Fielding v Fielding [1921] NZLR 1069 at 1072.

    [66]Sir Francis Jeune, "Divorce", Encyclopaedia Britannica, 10th ed (1902), vol 27, 471 at 476.

    [67]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 393, 399.

    [68]Bennett, A History of the Supreme Court of New South Wales, (1974) at 144-145.

47. However, it should be noted that in Scotland since the 16th century, provision had been made for judicial grant of divorce on grounds of adultery of either spouse or malicious desertion for at least four years[69].  Given the significant settlement of Scots immigrants in the Australian colonies, this element of their inheritance should not be overlooked in understanding the development of Australian institutions[70].

    [69]Walker, A Legal History of Scotland, (2001), vol 6 at 658, 661.

    [70]See generally, McPherson, "Scots Law in the Colonies", [1995] Juridical Review 191.

48. In 1891, the English Court of Appeal held that habeas corpus would issue to free a wife confined by her husband in his house in order to enforce restitution of conjugal rights[71].

    [71]R v Jackson [1891] 1 QB 671.

49. In R v L[72] Brennan J said:

    "The ecclesiastical courts made decrees for the restitution of conjugal rights but the decree commanded a general resumption of cohabitation and did not purport to compel a spouse to do or abstain from doing particular acts in performance of a connubial obligation[73].  The legal significance of connubial obligations was to be found in the making of decrees based on breaches of those obligations.  Breaches were established only by proof of conduct that was a gross infringement of a connubial right or by proof of a continuous failure to perform a connubial obligation in satisfaction of the corresponding connubial right of the other spouse.

    The courts exercising jurisdiction in matrimonial causes recognized the mutual rights of husband and wife relating to sexual intercourse and, in granting or withholding their decrees, ascertained whether either party had wilfully and persistently refused to accord the right of sexual intercourse to the other party.  From the days of the ecclesiastical courts, however, it was accepted that no mandatory order to compel sexual intercourse would be made."

    [72](1991) 174 CLR 379 at 393.

    [73]Hunt v Hunt (1943) 62 WN (NSW) 129.

50. In 1933, when describing the nature and incidents of a decree for restitution of conjugal rights under the jurisdiction conferred by Pt III (ss 6‑11) of the Matrimonial Causes Act 1899 (NSW), Dixon J observed in Bartlett v Bartlett[74] that, so long as this remedy was retained, it must be treated as a process imposing an obligation, the performance or non‑performance of which is ascertainable, and he added[75]:

    "On the one hand, it is clear that the obligation requires cohabitation, a physical dwelling together.  On the other hand, it is clear that it does not require the resumption of sexual intercourse.  It cannot, in fact, and in principle ought not to be understood as attempting to, control motives, feelings, emotions, sentiment or states of mind.  Its operation must be limited to overt acts and conduct.  ...  Perhaps, all that can be said is that the decree of restitution requires the spouse against whom it is directed again to dwell with the other spouse in outward acceptance of the relationship, to act as if they were husband and wife maintaining a matrimonial home and to commence no course of conduct intended to cause a separation."

    [74](1933) 50 CLR 3 at 15‑16; [1933] HCA 53.

    [75](1933) 50 CLR 3 at 16.

51. Evatt J set out[76] a passage from the reasons of Salmond J in Fielding v Fielding[77] in which, with reference to the jurisdiction conferred by s 7 of the Divorce and Matrimonial Causes Act 1908 (NZ) for the issue of decrees for restitution of conjugal rights, Salmond J had said:

    "The Ecclesiastical Courts [in England] never professed or attempted by means of decrees for restitution of conjugal rights, and imprisonment for disobedience to such decrees, to enforce any duty of sexual intercourse between husband and wife.  The basis of such a decree was the wrongful refusal of matrimonial cohabitation.  The duty enforced was merely the duty of husband and wife to live together under the same roof in the normal relationship of husband and wife, but without reference to the question of intercourse."

    [76](1933) 50 CLR 3 at 18.

    [77][1921] NZLR 1069 at 1071.

    The divorce legislation

52. The passage of the Matrimonial Causes Act 1857 (UK)[78] ("the 1857 UK Act") later was described by Dicey as "a triumph of individualistic liberalism and of common justice"[79].  But it was the culmination of many years of agitation.  Of the delay, Professor Cornish writes[80]:

    "It is less easy to explain why, given the long availability of judicial divorce in Scotland and its spread to other Protestant countries, the step did not come earlier.  Jeremy Bentham, for instance, had been an advocate of fully consensual divorce, but subject to time delays for reflection and a bar on the re‑marriage of a guilty party."  (footnote omitted)

    [78]20 & 21 Vict c 85.

    [79]Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, 2nd ed (1914) at 347.

    [80]The Oxford History of the Laws of England, (2010), vol 13 at 781.

53. The 1857 UK Act terminated the jurisdiction of the ecclesiastical courts in matrimonial matters (s 2) and vested that jurisdiction in the new Court for Divorce and Matrimonial Causes (s 6), but the Court was to act on the principles and rules which had been applied by the ecclesiastical courts (s 22).  A decree dissolving marriage might be pronounced on a petition by the husband alleging adultery by the wife, and on a wife's petition, alleging adultery coupled with desertion for at least two years and without reasonable excuse, or alleging adultery with aggravated circumstances including "such Cruelty as without Adultery would have entitled her to a Divorce à Mensâ et Thoro" (ss 27 and 31).

54. In 1858 the Secretary of State for the Colonies conveyed to all colonial governors and legislatures the wish of the Imperial Government that steps be taken to introduce, "as nearly as the circumstances of the Colony will admit", the provisions of the 1857 UK Act[81].

    [81]The Despatch by Lord Stanley to the Governor of New South Wales for presentation to both Houses of the Parliament is reproduced in Votes and Proceedings of the Parliament of New South Wales 1859‑1860, vol 4 at 1169.

55. The colonies acted accordingly, but at different paces:  Matrimonial Causes Act 1858 (SA), Matrimonial Causes Act 1860 (Tas), Matrimonial Causes Act 1861 (Vic), Matrimonial Causes Act 1863 (WA), Matrimonial Causes Act 1865 (Q), Matrimonial Causes Act 1873 (NSW).  This legislation did not need to abolish in the colonies the non‑existent jurisdiction of ecclesiastical courts.  Rather, it conferred jurisdiction in matrimonial causes on the Supreme Courts.  The differential treatment in the 1857 UK Act between the grounds of divorce available to husbands and wives was carried into the initial colonial legislation.  But there followed attempts by New South Wales and Victoria to assimilate and expand the grounds for divorce; the Governor's Instructions required these Bills to be reserved for the Royal Assent on advice of the Imperial Government and, initially, in circumstances of considerable controversy in the colonies, the Royal Assent was refused[82].

    [82]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), §201.

56. Pressure for reform of legislation respecting divorce was, however, maintained, particularly in the more populous colonies of New South Wales and Victoria[83], and eventually succeeded.  In Victoria The Divorce Act 1889 provided extended grounds for divorce[84].  Advocates of the women's movement in New South Wales were able to press for further liberalisation of the laws, despite the opposition of the churches[85].  The Divorce Amendment and Extension Act 1892 (NSW) was expressed in terms similar to those of the Victorian Act.  The extended grounds gave colonial women greater access to divorce than their contemporaries in the United Kingdom.

    [83]See the account given by Finlay, To Have But Not to Hold, (2005), Ch 3.

    [84]Which included adultery, desertion for a period of three years and upwards, habitual drunkenness, habitual cruelty to a wife, conviction for attempt to murder a wife, conviction for having assaulted a wife with intent to cause grievous bodily harm, or repeated assaults on a wife:  The Divorce Act 1889 (Vic), s 11.

    [85]Grimshaw et al, Creating a Nation, (1994) at 172.

    Conclusions

57. What was the immediate significance of these 19th century legislative measures for the continued vitality of the reasoning upon which Hale in the 17th century had based his proposition respecting "rape in marriage"?

58. In answering that question it is convenient first to repeat what was said by the Supreme Court of New Jersey in State v Smith[86] as follows:

    "We believe that Hale's statements concerning the common law of spousal rape derived from the nature of marriage at a particular time in history.  Hale stated the rule in terms of an implied matrimonial consent to intercourse which the wife could not retract.  This reasoning may have been persuasive during Hale's time, when marriages were effectively permanent, ending only by death or an act of Parliament[87].  Since the matrimonial vow itself was not retractable, Hale may have believed that neither was the implied consent to conjugal rights.  Consequently, he stated the rule in absolute terms, as if it were applicable without exception to all marriage relationships.  In the years since Hale's formulation of the rule, attitudes towards the permanency of marriage have changed and divorce has become far easier to obtain.  The rule, formulated under vastly different conditions, need not prevail when those conditions have changed."

    To that may be added the statement in that case[88]:

    "If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage 'contract', may she not also revoke a 'term' of that contract, namely, consent to intercourse?"

    In similar vein is the statement made from the New South Wales Supreme Court bench by Sir William Windeyer in 1886, in which he regretted that while the State regarded marriage as a civil contract and in this case the contract had been destroyed by the husband "having done his best to degrade you", by reason of the then limited grounds of divorce then available to her in New South Wales, she had no redress[89].

    [86]426 A 2d 38 at 42 (1981).

    [87]Clark, The Law of Domestic Relations in the United States, (1968) at 280‑282.

    [88]426 A 2d 38 at 44 (1981).

    [89]Bennett, "The Establishment of Divorce Laws in New South Wales", (1963) 4 Sydney Law Review 241 at 248.

59. Insofar as Hale's proposition respecting the nature of the matrimonial contract was derived from an understanding of the principles applied by the ecclesiastical courts, the following may be said.  First, as Lord Brougham observed in R v Millis[90]:

    "[Marriage] was always deemed to be a contract executed without any part performance; so that the maxim was undisputed, and it was peremptory, 'Consensus, non concubitus, facit nuptias vel matrimonium.'"

    Secondly, with respect to the exercise of their jurisdiction in suits for restitution of conjugal rights, the ecclesiastical courts did not accept that the exercise of the mutual rights of spouses was to be an occasion of abuse and degradation.  The following further remarks of Brennan J in R v L[91] are in point:

    "To acknowledge a connubial obligation not to refuse sexual intercourse wilfully and persistently is to acknowledge that the giving of consent to acts of sexual intercourse is necessary to perform the obligation.  It would have been inconsistent with such an obligation to hold that, on marriage, a wife's general consent to acts of sexual intercourse has been given once and for all.  If no further consent was required on the part of a wife, how could there be a wilful and persistent refusal of sexual intercourse by her?  The ecclesiastical courts never embraced the notion of a general consent to sexual intercourse given once and for all on marriage by either spouse."

    Thirdly, and in any event, in the Australian colonies jurisdiction with respect to matrimonial causes was not part of the general inheritance of the Supreme Courts. They received such jurisdiction only by local statute in the second half of the 19th century. That legislation, as interpreted in the period before the enactment of the CLC Act in 1935, did not require, for compliance with a decree for restitution of conjugal rights, more than matrimonial cohabitation; in particular the duty of matrimonial intercourse was one of imperfect legal obligation because it could not be compelled by curial decree[92].

    [90](1844) 10 Cl & F 534 at 719 [8 ER 844 at 913].

    [91](1991) 174 CLR 379 at 396.

    [92]Bartlett v Bartlett (1933) 50 CLR 3 at 12, 15, 18.

60. Finally, although Hale did not expressly rely upon it, his proposition respecting irrevocable consent could not have retained support from any common law concept that the wife had no legal personality distinct from that of her husband.  This was never wholly accepted by the Court of Chancery, given the development there of the trust.  The references earlier in these reasons to the significance of the married women's property legislation[93] indicate that, by statute, the attitudes of the equity jurisdiction were given effect in the latter part of the 19th century to a significant degree throughout the legal system in England and the Australian colonies. 

    [93]At [46].

61. To that may be added the significance of the conferral by the Commonwealth Franchise Act 1902 (Cth) of the universal adult franchise[94].  It has been said that the gaining of suffrage for women in South Australia in 1894 was critical to the national suffrage movement[95].  At the turn of the 20th century, suffragists in England were looking to what had been achieved in Australia[96].  An English suffragist, Dame Millicent Garrett Fawcett, writing in 1911 when women in England had not yet been granted suffrage, observed that[97]:

    "In the Commonwealth of Australia almost the first Act of the first Parliament was the enfranchisement of women.  The national feeling of Australia had been stimulated and the sense of national responsibility deepened by the events which led to the Federation of the Independent States of the Australian Continent."

    [94]See Roach v Electoral Commissioner (2007) 233 CLR 162 at 195‑196 [70]‑[71]; [2007] HCA 43.

    [95]Oldfield, Woman Suffrage in Australia, (1992) at 213 (Western Australia followed in 1899 through the passage of the Constitution Acts Amendment Act 1899 (WA)).

    [96]See for example Zimmern, Women's Suffrage in Many Lands, (1909) at 160; Fawcett, Women's Suffrage:  A Short History of a Great Movement, (1911) at 59.

    [97]Fawcett, Women's Suffrage:  A Short History of a Great Movement, (1911) at 59.

62. By 1930 Isaacs J was able to say that[98]:

    "women are admitted to the capacity of commercial and professional life in most of its branches, that they are received on equal terms with men as voters and legislators, that they act judicially, can hold property, may sue and be sued alone".

    [98]Wright v Cedzich (1930) 43 CLR 493 at 505; [1930] HCA 4.

63. By the time of the enactment in 1935 of the CLC Act, if not earlier (a matter which it is unnecessary to decide here), in Australia local statute law had removed any basis for continued acceptance of Hale's proposition as part of the English common law received in the Australian colonies. Thus, at all times relevant to this appeal, and contrary to Hale's proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife. Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape.

64. To reach that conclusion it is unnecessary to rely in general terms upon judicial perceptions today of changes in social circumstances and attitudes which had occurred in this country by 1935, even if it were an appropriate exercise of legal technique to do so. The conclusion follows from the changes made by the statute law, as then interpreted by the courts, including this Court, before the enactment of the CLC Act.

    Order

65. The appeal should be dismissed.

66. HEYDON J.   The events giving rise to this appeal allegedly took place in 1963.  At that time it was universally thought in Australia that a husband could not be convicted of having sexual intercourse with his wife without her consent save where a court order operated or where there were other exceptional circumstances.  This immunity from conviction was thought to exist because Sir Matthew Hale, who died in 1676, had asserted its existence in The History of the Pleas of the Crown, published in 1736.  The reason he assigned was that on marriage wives irrevocably consented to sexual intercourse with their husbands[99].  Below the immunity will be called "the immunity" or "Hale's proposition". 

    [99]See below at [172].

67. By what warrant did the State of South Australia seek in 2010 to prosecute the appellant for allegedly having sexual intercourse with his wife without her consent more than 47 years earlier?  A sufficient answer to that question would be:  "It had none, for the reasons that Bell J powerfully states."  However, in deference to the arguments put by South Australia, a fuller answer should be given.

68. One matter must be put aside, though the appellant may wish to rely on it at a later stage in these proceedings.  This appeal is not directly concerned with any oppressiveness that results from the delay in prosecution.  But that tardiness does support the appellant's submission that in 1963 there was no crime of rape for which he could be charged.  One primary explanation which South Australia gave to the District Court for its delay was that the immunity created considerable doubt as to whether the appellant was liable for rape.  Yet prosecutors have to demonstrate with clarity that the crimes they charge exist.  South Australia tells the District Court that the appellant's liability was thought doubtful.  It tells this Court that it is certain.  South Australia's stance in the District Court is inconsistent with its dogmatic and absolute submissions in this Court.  The first of its submissions in this Court was that the immunity never existed[100].  The second, alternative, submission was that even if the immunity had existed at one time, it had ceased to exist at some indeterminate time before 1963[101].  

    [100]The first submission is discussed below at [71]-[113].

    [101]The second submission is discussed below at [114]-[161].

69. South Australia put only those two submissions.  It did not put a third submission – that even if the immunity existed and even if it had not ceased to exist up to now, it should be abolished now.  That was a course which the English courts took in 1991[102].  It is a course which would raise issues different in some respects from those discussed below.   

    [102]R v R [1992] 1 AC 599.

    South Australia's first submission:  the detailed contentions

70. South Australia's first submission was that it had never been the law, in England or in Australia, that a husband was immune from prosecution for having sexual intercourse with his wife without her consent.  The Commonwealth supported that submission.  It was based on a number of contentions. 

71. The first group of contentions centred on the following points.   Hale's work was published 60 years after he died.  The relevant part had not been revised before his death.  Hale had not supported his statement with any reference to authority.  Standing alone his proposition would not constitute the common law.  At best it reflected "his view of a custom in 17th century England."  As Blackstone asserted, "judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law."[103] 

    [103]Commentaries on the Laws of England, (1765), bk 1 at 69.

72. A second group of contentions concerned ecclesiastical law.  In the ecclesiastical courts there was no support for Hale's proposition.  In ecclesiastical law each spouse had a right to sexual intercourse, but it was only to be exercised reasonably and by consent.  This undermined the foundation of Hale's proposition.  It revealed him to be mistaken in thinking that the wife's consent was irrevocable.  It caused his proposition to be affected by "frailty". 

73. South Australia then turned to the history of Hale's proposition after he had enunciated it.  It relied on Lord Lowry's very extreme statement that "Hale's doctrine had not been given the stamp of legislative, judicial, governmental and academic recognition."[104] 

    [104]C (A Minor) v Director of Public Prosecutions [1996] AC 1 at 38.

74. So far as "academic recognition" was concerned, South Australia submitted that the only statement of support for the immunity in absolute terms was that of Hale, and that there was no support for it in Blackstone. 

75. So far as "judicial … recognition" was concerned, South Australia submitted that Hale's proposition "was never authoritatively declared as part of the common law in Australia."  It also submitted that no case had Hale's proposition as its ratio decidendi.  There were only dicta and assumptions that the proposition existed.  In some of the cases stating the dicta or resting on the assumptions Hale's proposition was cut down.  There were also dicta to the contrary.  Hale's proposition was further said to be inconsistent with some authorities. 

76. South Australia did not advance detailed submissions about any lack of "legislative" and "governmental" recognition.  Perhaps it is hard to say much in support of negative propositions.  However, there is a lot to be said against those two. 

77. Finally, South Australia submitted that the immunity was completely outdated and offensive to human dignity.

78. It is convenient to deal with South Australia's first submission under the following headings.

    Defects in Hale's statement of the immunity

79. It is immaterial that Hale's work was published 60 years after his death, that the reference to the immunity appears in a part of it which Hale had not revised, and that he stated no elaborate reasons justifying the immunity.  Hale's work is capable of being an accurate account of the law of his day despite these things.  There is no reason to suppose that, had he revised the relevant part of his work, he would have considered it desirable to change it. 

80. South Australia is not alone in complaining about Hale's failure to cite authorities[105].  But it is anachronistic to do so.  The modern approach to precedent was only struggling to be born in Hale's day[106].  Hale himself said[107]:

    "the decision of courts of justice, though by virtue of the laws of this realm they do bind, as a law between the parties thereto, as to the particular case in question, till reversed by error or attaint; yet they do not make a law, properly so called; – for that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is; especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times.  And though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, AS SUCH, whatsoever".

    [105]Brooks, "Marital Consent in Rape", [1989] Criminal Law Review 877 at 878-883.  The first maker of this criticism appears to have been Field J in R v Clarence (1888) 22 QBD 23 at 57.

    [106]Williams, "Early-modern judges and the practice of precedent", in Brand and Getzler (eds), Judges and Judging in the History of the Common Law and Civil Law:  From Antiquity to Modern Times, (2012) 51.

    [107]The History of the Common Law of England, 6th ed (1820) at 89-90 (emphasis in original). 

81. Hale's work often does not contain the dense citation of authorities characteristic of modern books.  Indeed, many parts of it refer to only a few authorities.  That is so of the passages in which he discusses the crime of rape.  Hale did not cite direct authority for the immunity, or for his justification of the immunity.  Whether there were in fact "authorities" of any kind to be cited on the present point is a matter which a 21st century court cannot easily deal with.  It would need the assistance of close research into the question by modern legal historians with high expertise[108].  Subject to that matter, Hale did point out that there was authority for other propositions that he asserted.  Those propositions were not inconsistent with the immunity.  To some extent they supported it[109].  In view of Hale's high reputation for research into the criminal litigation of his day[110], it seems likely that in practice husbands were not prosecuted for raping their wives, so that there were no authorities to cite.  Even nowadays, a proposition can be correct though no precedent supports it.  Ethical and tactical considerations prevent counsel from arguing what they perceive to be the unarguable.  There are some propositions which seem too clear to the profession to be contradicted by argument.  Propositions of that kind are widely accepted as good law. 

    [108]Australian Crime Commission v Stoddart (2011) 86 ALJR 66 at 81 [70]; 282 ALR 620 at 637; [2011] HCA 47.

    [109]Lanham, "Hale, Misogyny and Rape", (1983) 7 Criminal Law Journal 148 at 153‑156. See also below at [208].

    [110]See below at [209].

82. Subject to the research difficulties referred to in the previous paragraph, a lack of support from earlier authors such as Coke is, as Bell J explains, not significant and does not reveal Hale to be wrong[111].

    [111]See below at [200].

83. Windeyer J once said:  "an accepted rule of law is not to be overthrown by showing that history would not support it"[112].  None of the defects which supposedly existed in Hale's statement of the immunity prevented it from being an accepted rule of law.

    [112]Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 at 447; [1959] HCA 29.

    Hale and ecclesiastical law

84. South Australia's appeal to ecclesiastical law encounters two difficulties. 

85. The first is that while the civil law of marriage was a matter for the ecclesiastical courts, the criminal law was a matter for the common law courts.  Thinking in the ecclesiastical courts does not necessarily vitiate an account of the criminal law as administered in the common law courts.

86. The second difficulty is that ecclesiastical law in the 17th century is another field not to be entered without expert assistance.  In R v L[113] Brennan J wrote at some length about ecclesiastical law.  But the sources to which he referred were largely modern.  None were contemporary with or earlier than Hale. 

    [113](1991) 174 CLR 379 at 391-402; [1991] HCA 48.

87. Lord Lane CJ in R v R[114] and Mason CJ, Deane and Toohey JJ in R v L[115] pointed out that in Popkin v Popkin[116] Sir William Scott (later Lord Stowell) stated:  "The husband has a right to the person of his wife, but not if her health is endangered."  Mason CJ, Deane and Toohey JJ commented that this showed that "even in the ecclesiastical courts, the obligation to consent to intercourse was not asserted in unqualified terms."  If so, it also shows that Hale's proposition was not completely wrong.  On the other hand, Brennan J did not think that Sir William Scott's statement showed that a husband had "a right to the person of his wife" without consent[117].

    [114][1992] 1 AC 599 at 604.

    [115](1991) 174 CLR 379 at 389.

    [116](1794) 1 Hagg Ecc 765n [162 ER 745 at 747].

    [117]R v L (1991) 174 CLR 379 at 398.

88. The submissions of the parties in this appeal did not take the matter further than Brennan J's researches took it.  The parties did not cite any expert material throwing light on ecclesiastical law in or before Hale's time.  For that reason, it is imprudent to examine it. 

    Post-Hale writers

89. South Australia submits that there is no statement of support for Hale's proposition except Hale himself, and that Hale's proposition has received no "academic recognition".  That submission is extremely ambitious.  It is also utterly incorrect. 

90. It is true that Hale's proposition is neither confirmed nor denied by Blackstone or Hawkins.  Blackstone was writing at a considerable level of generality about much wider issues than those Hale wrote about.  Whether or not it is right to describe Hawkins as "a somewhat second-rate institutional writer"[118], it was not open to him to take up Hale's proposition in the first edition of his treatise.  It appeared in 1716.  Hale's work was not published until 1736. 

    [118]Seaborne Davies, "The House of Lords and the Criminal Law", (1961) 6 Journal of the Society of Public Teachers of Law 104 at 110.

91. South Australia echoes the Crown's complaint to the House of Lords in R v R[119] that the first writer to refer to the immunity after Hale was East in 1803.  That is, however, less than 70 years after History of the Pleas of the Crown was published in 1736.  In truth, Hale has enjoyed a great reputation.  Lord Denning called him "the great Chief Justice Sir Matthew Hale"[120].  Hale's proposition garnered massive support from professional writers after 1803, and, as academic lawyers emerged, from them too.  Leading modern writers like Glanville Williams[121], Smith and Hogan[122] and Cross and Jones[123] acknowledged the correctness of Hale's proposition.  Like others who have attacked courts that relied on Hale's proposition[124], South Australia failed to grapple with this uncomfortable point. 

    [119][1992] 1 AC 599 at 614.

    [120]Sykes v Director of Public Prosecutions [1962] AC 528 at 558.

    [121]Textbook of Criminal Law, 2nd ed (1983) at 236; "The problem of domestic rape", (1991) 141 New Law Journal 205 and 246.

    [122]Criminal Law, 6th ed (1988) at 430-432 (and all earlier editions).

    [123]Card (ed), Cross and Jones:  Introduction to Criminal Law, 9th ed (1980) at 177 [9.2] (and all earlier editions).

    [124]For example, Brooks, "Marital Consent in Rape", [1989] Criminal Law Review 877 at 880. 

92. One source of law is "informed professional opinion"[125].  Where there is little authority on a question of law, the opinions of specialist writers, particularly their concurrent opinions, are very important in revealing, and indeed in establishing, the law.  That is particularly true of books written by practitioners.  But it has force in relation to well-respected academic writers as well[126].  As Lord Reid said:  "Communis error facit jus may seem a paradox but it is a fact."[127]  Owen J put the matter with trenchant simplicity in relation to the first edition of Archbold in 1822.  It said[128]:  "A husband … cannot be guilty of a rape upon his wife."  Owen J said[129]:

    "It seems to me that the consequences of that statement is this:  if he was right, then practitioners would follow what he said.  Equally, however, if he was wrong, practitioners would follow what he said."

    [125]Jones v Secretary of State for Social Services [1972] AC 944 at 1026 per Lord Simon of Glaisdale.

    [126]Australian Crime Commission v Stoddart (2011) 86 ALJR 66 at 84-98 [90]-[138]; 282 ALR 620 at 641-660.

    [127]"The Judge as Law Maker", (1972) 12 Journal of the Society of Public Teachers of Law 22 at 25. 

    [128]Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases, (1822) at 259. 

    [129]R v R – (rape:  marital exemption) [1991] 1 All ER 747 at 748.

    Hale's proposition in the courts

93. South Australia relied on Lord Lowry's statement that Hale's proposition had not been "given the stamp of … judicial … recognition."[130]  South Australia greatly exaggerated the extent to which the authorities cast doubt on the immunity before 1991, when the House of Lords decided it should be abolished[131], and four members of this Court said that it had ceased to represent the law[132]. 

    [130]C (A Minor) v Director of Public Prosecutions [1996] AC 1 at 38.

    [131]R v R [1992] 1 AC 599.

    [132]R v L (1991) 174 CLR 379 at 390 and 405.

94. An illustration is provided by South Australia's submission in relation to R v Clarence: 

    "The exemption was first the subject of judicial comment in R v Clarence.[133]  In R v Clarence, seven of the thirteen judges declined to comment on the issue;[134] of the six judges who did, two of them reiterated and confirmed the marital rape proposition,[135] three of them questioned or qualified it,[136] and another briefly adverted to it without engaging in it.[137]  The comments of the judges in R v Clarence were obiter dicta, however, taken as a whole they indicate that even as at 1888 there existed no settled view."

    [133](1888) 22 QBD 23.

    [134]Lord Coleridge CJ, Huddleston B, Grantham, Manisty and Mathew JJ (quashing the conviction); Charles and Day JJ (dissenting because upholding the conviction). 

    [135]A L Smith J and Pollock B (quashing the conviction).

    [136]Wills J (quashing the conviction) and Hawkins and Field JJ (dissenting because upholding the conviction).

    [137]Stephen J (quashing the conviction).

95. It is true that the few things said about Hale's proposition in R v Clarence were dicta.  The submission is otherwise very misleading.  It suggests that only A L Smith J and Pollock B favoured Hale's proposition.  In fact the position is as follows.  Stephen J supported Hale's proposition[138].  The following seven judges concurred:  A L Smith J[139], Mathew J[140], Grantham J[141], Manisty J[142], Huddleston B[143], Pollock B[144] and Lord Coleridge CJ[145].  Wills J[146], Hawkins J[147] and Field J[148] each stated or left open the possibility that in some circumstances a husband could be convicted of raping his wife.  But at least the latter two judges plainly thought that Hale's proposition was correct in some circumstances.  Day J concurred with Hawkins J[149].  Charles J concurred with Field J[150].

    [138]R v Clarence (1888) 22 QBD 23 at 46.

    [139]R v Clarence (1888) 22 QBD 23 at 37.

    [140]R v Clarence (1888) 22 QBD 23 at 38.

    [141]R v Clarence (1888) 22 QBD 23 at 46.

    [142]R v Clarence (1888) 22 QBD 23 at 55.

    [143]R v Clarence (1888) 22 QBD 23 at 56.

    [144]R v Clarence (1888) 22 QBD 23 at 61-62 and 63-64.

    [145]R v Clarence (1888) 22 QBD 23 at 66.

    [146]R v Clarence (1888) 22 QBD 23 at 33.

    [147]R v Clarence (1888) 22 QBD 23 at 51.

    [148]R v Clarence (1888) 22 QBD 23 at 57-58.

    [149]R v Clarence (1888) 22 QBD 23 at 55.

    [150]R v Clarence (1888) 22 QBD 23 at 61.

96. South Australia correctly submitted that English trial judges assumed that Hale's proposition was correct, but qualified its operation in special circumstances.  Examples of special circumstances included where there was a court non-cohabitation order[151], or a decree nisi of divorce had effectively terminated the marriage[152], or the husband had given an undertaking to the court not to molest the wife[153], or there was an injunction restraining the husband from molesting or having sexual intercourse with the wife[154], or there was an injunction and a deed of separation (even though the injunction had expired)[155].  The outer limit of these exceptions was unilateral withdrawal from cohabitation coupled with a clear indication that the wife's consent to sexual intercourse was revoked[156]. 

    [151]R v Clarke [1949] 2 All ER 448. The judge was Byrne J, of whom Owen J said in R v R– (rape:  marital exemption) [1991] 1 All ER 747 at 749: "Those who appeared before him will know that he was a judge of the highest repute. As a criminal lawyer, there were not many to excel him in his day." In R v Miller [1954] 2 QB 282 at 289 Lynskey J concurred with R v Clarke.  

    [152]R v O'Brien [1974] 3 All ER 663.

    [153]R v Steele (1976) 65 Cr App R 22.

    [154]R v Steele (1976) 65 Cr App R 22 at 25; R v McMinn [1982] VR 53.

    [155]R v Roberts [1986] Crim LR 188.

    [156]R v R – (rape:  marital exemption) [1991] 1 All ER 747 at 754.

97. On one view, each of the courts that reached these decisions was attempting to achieve justice by tailoring the absolute nature of Hale's proposition to the circumstances before it.  Even if the wife could be said to have given consent by marriage, in those cases it had been withdrawn as a matter of practical reality either because the wife had successfully invoked court process or because the spouses had reached a formal agreement negating consent.  Another view is that these cases travel down a road "potholed with ever greater illogicalities"; produce "a gaggle of technical and anomalous distinctions" and "absurdity"; and lack any "relationship to the real world."[157]  But even if this latter view is correct, it is adverse to South Australia's position.  The cases show the enduring toughness of Hale's proposition in legal thought.  To destroy Hale's proposition might eliminate formal anomalies and technicalities.  But it was a course which many judges found unattractive.  Instead they turned their minds to devising narrow exceptions. 

    [157]Brooks, "Marital Consent in Rape", [1989] Criminal Law Review 877 at 880-882. 

98. In two of the cases just referred to, the correctness of Hale's proposition, in the absence of special circumstances, was specifically acknowledged by quotation[158].  In another, Hale's proposition was thought to be correct at common law though not necessarily satisfactory[159].  And in R v Miller[160], where the prosecution failed to prove any special circumstance and could point to no more than the wife having petitioned for divorce, Hale's proposition was applied.  R v Miller renders false South Australia's submission that "no binding precedent can be found where [Hale's] principle represented the ratio decidendi."  Contrary to that submission, R v Miller was an "authoritative declaration of the common law on the matter."  R v Miller also demonstrates that McGarvie J was wrong to say in R v McMinn[161]:  "There does not seem to have been any recent case in which it was considered whether [Hale's proposition] remains part of the common law."  R v Miller was a binding precedent in England until 1991.  A second case which applied Hale's proposition is R v J – (rape:  marital exemption)[162]. 

    [158]R v Clarke [1949] 2 All ER 448 at 448; R v Steele (1976) 65 Cr App R 22 at 24.

    [159]R v McMinn [1982] VR 53 at 55, 57-59 and 61.

    [160][1954] 2 QB 282, criticised by Brooks, "Marital Consent in Rape", [1989] Criminal Law Review 877 at 882-883.

    [161][1982] VR 53 at 61.

    [162][1991] 1 All ER 759.

214. Hale's statement of the immunity was taken as an authoritative statement of the law by all the leading text-writers[396]. 

     [396]East, A Treatise of the Pleas of the Crown, (1803), vol 1 at 446; Burnett, A Treatise on Various Branches of the Criminal Law of Scotland, (1811) at 102; Chitty, A Practical Treatise on the Criminal Law, (1816), vol 3 at 811; Russell, A Treatise on Crimes and Misdemeanors, (1819), vol 1, bk 3, c 6 at 802; Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases, (1822) at 259; Alison, Principles of the Criminal Law of Scotland, (1832) at 215; Roscoe, A Digest of the Law of Evidence in Criminal Cases, (1835) at 708; Hume, Commentaries on the Law of Scotland, Respecting Crimes, (1844), vol 1, c 7 at 306; Macdonald, A Practical Treatise on the Criminal Law of Scotland, (1867) at 194; Stephen, A Digest of the Criminal Law (Crimes and Punishments), 4th ed (1887), c 29 at 194; Halsbury, The Laws of England, 1st ed, vol 9, par 1236; Sturge, Stephen's Digest of the Criminal Law (Indictable Offences), 9th ed (1950) at 263; Halsbury's Laws of England, 3rd ed, vol 10, par 1437; Butler and Garsia, Archbold:  Pleading, Evidence & Practice in Criminal Cases, 35th ed (1962) at 1150; J W C Turner, Russell on Crime, 12th ed (1964), vol 1 at 708; Howard, Australian Criminal Law, (1965) at 135, 145-147.

     R v Clarence

215. The first judicial consideration of the immunity was in R v Clarence[397].  A bench of 13 judges was constituted to consider the question of whether the transmission of gonorrhoea by husband to wife in an act of consensual sexual intercourse could amount to the malicious infliction of grievous bodily harm.  Wills, Field and Hawkins JJ each left open that circumstances may exist in which a husband could be liable for the rape of his wife.  Wills J doubted that "between married persons rape is impossible"[398].  Field J thought that there may be cases in which a husband could be convicted of a crime arising out of forcibly imposing sexual intercourse on his wife; he did not say whether for rape or some other offence[399].  Hawkins J accepted that, by the marriage contract, a wife confers on her husband "an irrevocable privilege to have sexual intercourse with her during such time as the ordinary relations created by such contract subsist between them" and that a husband could not be convicted of a rape committed by him upon the person of his wife[400].  However, a husband was not at liberty to endanger his wife's health and cause her grievous bodily harm by the exercise of "the marital privilege" at a time when he was suffering from venereal disease and when the natural consequence of sexual intercourse would be the communication of that disease to her[401].  He explained the principles in this way[402]:

     "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.  …

     The wife submits to her husband's embraces because at the time of marriage she gave him an irrevocable right to her person.  The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part, but is mere submission to an obligation imposed upon her by law.  Consent is immaterial."  (emphasis in original)

     Pollock B said[403]:

     "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."

     [397](1888) 22 QBD 23.

     [398]R v Clarence (1888) 22 QBD 23 at 33.

     [399]R v Clarence (1888) 22 QBD 23 at 57.

     [400]R v Clarence (1888) 22 QBD 23 at 51.

     [401]R v Clarence (1888) 22 QBD 23 at 51.

     [402]R v Clarence (1888) 22 QBD 23 at 51, 54.

     [403]R v Clarence (1888) 22 QBD 23 at 63-64.

216. Consideration of the immunity in Clarence appears to have been prompted by a submission based on a footnote in Stephen's Digest of the Criminal Law.  The law in the first edition of the Digest was stated, relevantly, in this way[404]:

     "Rape is the act of having carnal knowledge of a woman without her conscious permission ...  Provided that: –

     (1)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."

     The footnote relevantly said[405]:

     "Hale's reason is that the wife's consent at marriage is irrevocable.  Surely, however, the consent is 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 of rape, notwithstanding Lord Hale's dictum.  He 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), for which Lord Castlehaven's Case (3 St Tr 402) is an authority."

     [404]Stephen, A Digest of the Criminal Law (Crimes and Punishments), (1877), c 29 at 171-172.

     [405]Stephen, A Digest of the Criminal Law (Crimes and Punishments), (1877), c 29 at 172 fn 1.

217. Stephen J gave the leading judgment in Clarence[406].  He used the occasion to draw attention to the alteration of the footnote, removing the suggestion that a man might in certain circumstances be indicted for the rape of his wife, in the most recent edition of his text[407]. 

     [406]A L Smith, Mathew and Grantham JJ, Huddleston B and Lord Coleridge CJ concurred.

     [407]R v Clarence (1888) 22 QBD 23 at 46. See Stephen, A Digest of the Criminal Law (Crimes and Punishments), 4th ed (1887), c 29 at 194 fn 4.

218. Stephen was a great master of the criminal law[408].  An account of his draft criminal code and the subsequent Commission appointed to report upon it is contained in the joint reasons in Darkan v The Queen[409].  To the extent that the Draft Code appended to the Report of the Commissioners differed from Stephen's original draft, the differences were noted in the Report.  The provisions dealing with offences against the person were said to correspond (as did the provisions in Stephen's original draft) with the Offences against the Person Act 1861 (UK)[410], "supplemented by a reduction to writing of the common law doctrines and definitions"[411].  The Offences against the Person Act 1861 (UK) prescribed the punishment for rape but left the definition of the offence to the common law.  It is apparent that the definition of rape in the Draft Code was understood by its authors[412] to be a statement of the common law.  Relevantly, the offence was defined as "the act of a man having carnal knowledge without her consent of a female who is not his wife"[413]. The Criminal Code Indictable Offences Bill 1878 (UK), on which the Commissioners' draft was based, and which defined rape in the same terms, had been circulated to the Judges, Chairmen and Deputy Chairmen of Quarter Sessions, Recorders and "many members of the bar and other gentlemen having practical experience in the administration of the criminal law"[414] in England and Ireland with the invitation to comment on it.  The absence of any suggestion in the Commissioners' Report that the offence of rape was to be modified under the Code is eloquent of the acceptance by those engaged in the administration of the criminal law in England and Ireland at the time that the offence could not be committed by a husband against his wife[415].

     [408]Radzinowicz, Sir James Fitzjames Stephen, 1829-1894, Selden Society Lecture, (1957).

     [409](2006) 227 CLR 373 at 385-386 [33]-[36]; [2006] HCA 34.

     [410]24 & 25 Vict c 100, s 48.

     [411]Criminal Code Bill Commission, Report of the Royal Commission Appointed to Consider The Law Relating to Indictable Offences, (1879) [C 2345] at 22.

     [412]Lord Blackburn, Mr Justice Barry, Lord-Justice Lush and Sir James Fitzjames Stephen.

     [413]Section 207 of the Draft Code, Appendix to the Criminal Code Bill Commission, Report of the Royal Commission Appointed to Consider The Law Relating to Indictable Offences, (1879) [C 2345] at 107.

     [414]Criminal Code Bill Commission, Report of the Royal Commission Appointed to Consider The Law Relating to Indictable Offences, (1879) [C 2345] at 5.

     [415]See Criminal Code Bill Commission, Report of the Royal Commission Appointed to Consider The Law Relating to Indictable Offences, (1879) [C 2345] at 25.

219. Sir Samuel Griffith drew on the English Draft Code in preparing his draft criminal code for Queensland[416].  In the latter, the offence of rape was defined, relevantly, as the "carnal knowledge of a woman, not his wife"[417].  The marginal notes reveal that Sir Samuel Griffith considered this definition to be a statement of the common law. 

     [416]Griffith, Draft of a Code of Criminal Law, (1897) at iv.

     [417]Griffith, Draft of a Code of Criminal Law, (1897), s 353 at 135.

220. In Canada, before the enactment of the Criminal Code in 1892, the offence of rape, while punishable as a felony under legislation modelled on the Offences against the Person Act 1861 (UK), depended upon the common law for its elements of proof.  It is apparent that the understanding in that jurisdiction was that the offence could not be committed by a husband against his wife[418].  The Criminal Code defined rape as involving the "carnal knowledge of a woman who is not his wife"[419].  It does not appear that this was thought to involve any departure from the existing law.

     [418]Taschereau, The Criminal Statute Law of the Dominion of Canada, 2nd ed (1888) at 198.

     [419]Criminal Code 1892 (Can), s 266.

     The absence of binding decision

221. The absence of a binding decision does not mean that a rule stated in authoritative texts and accepted and acted upon by the legal profession over many years may not acquire status as law.  The point is made by Sir John Smith
     
     
     in his commentary on R v C[420], by reference to Foakes v Beer[421].  In the latter case, the House of Lords held itself bound to follow a rule stated by Coke to have been laid down in Pinnel's Case[422] in 1602, although their Lordships disliked it and there was no decision in which it had been applied.  As the Earl of Selborne LC put it[423]:

     "The doctrine itself, as laid down by Sir Edward Coke, may have been criticised, as questionable in principle, by some persons whose opinions are entitled to respect, but it has never been judicially overruled; on the contrary I think it has always, since the sixteenth century, been accepted as law.  If so, I cannot think that your Lordships would do right, if you were now to reverse, as erroneous, a judgment of the Court of Appeal, proceeding upon a doctrine which has been accepted as part of the law of England for 280 years."

     [420][1991] Crim LR 62.

     [421](1884) 9 App Cas 605.

     [422](1602) 5 Co Rep 117a [77 ER 237].

     [423]Foakes v Beer (1884) 9 App Cas 605 at 612. See also at 622-623 per Lord Blackburn, 623-624 per Lord Watson, 629‑630 per Lord FitzGerald.

222. Brennan J, the only Justice in R v L to consider proof of the offence of rape under the common law, considered the elements to have been fixed by Hale's statement of them[424].  The evidence in favour of that conclusion is compelling.

     [424]R v L (1991) 174 CLR 379 at 399.

     Has the immunity ceased to exist?

223. It was submitted that legal and social changes to the status of married women had produced the result that the immunity had ceased to be a rule of law on a date before the subject events.  There were differing views about when that change to the law occurred, a circumstance which tends to highlight a difficulty with accepting the underlying premise.  The respondent and the Attorney-General for South Australia contended that the foundation for the immunity had "crumbled to dust" as at the "early to mid twentieth century".  The Attorney-General of the Commonwealth contended that the relevant change in circumstances had occurred "by the end of the 19th century".  Reference was made to the enactment of the Married Women's Property Acts; the amendment of matrimonial causes statutes removing the "double-standard" relating to adultery as a ground for dissolution of marriage; and, more generally, the extension of the franchise to women, as combining to produce a state of affairs that was inconsistent with the continued existence of the immunity.  These submissions were maintained in the face of a good deal of evidence to the contrary. 

224. The one case relied on to support the submissions was R v Jackson[425].  In that case, Lord Halsbury LC rejected the proposition that the relation of husband and wife gave the husband "complete dominion over the wife's person"[426].  The holding that an order for restitution of conjugal rights did not confer on the husband a right to imprison his wife is a tenuous basis for concluding that the husband was now amenable to prosecution for having sexual intercourse with his wife without her consent. 

     [425][1891] 1 QB 671.

     [426][1891] 1 QB 671 at 679.

225. In the first edition of Halsbury, published in 1909, almost 20 years after the decision in Jackson, the law was stated as being that "[a] man cannot be guilty as a principal in the first degree of a rape upon his wife, for the wife is unable to retract the consent to cohabitation which is a part of the contract of matrimony"[427].    

     [427]Halsbury, The Laws of England, 1st ed, vol 9, par 1236.  The second edition, under the editorship of Viscount Hailsham, published in 1933, stated the law in the same terms:  vol 9, par 815.  It was not until after Clarke (see fn 295 above), which provided a limited exception to the immunity in the case of a wife living separately under the protection of a court order, that the third edition, under the editorship of Viscount Simons, published in 1955, stated the rule in qualified terms:  "[a] man cannot, as a general rule, be guilty as a principal in the first degree of a rape upon his wife" (vol 10, par 1437).

226. In Tasmania, the Married Women's Property Act was enacted in 1882.  Women had been granted the franchise for both federal and State parliamentary elections by 1904[428].  The Matrimonial Causes Act 1860 (Tas) was amended in 1919 to remove the double‑standard with respect to adultery[429].  Nonetheless, when the Parliament enacted the Criminal Code for Tasmania in 1924, a quarter of a century after the enactment of the Queensland Criminal Code, the crime of
     
     

     [428]Commonwealth Franchise Act 1902 (Cth); Constitution Amendment Act 1903 (Tas).

     [429]Matrimonial Causes Amendment Act 1919 (Tas) (Royal Assent proclaimed on 17 May 1920).

     [430]Criminal Code (Tas), s 185 (as enacted). Relevantly, rape was defined as involving "carnal knowledge of a female not his wife".

     rape was defined in the same way as under the latter[430].  The significant changes in the legal status of married women which had occurred by 1924 do not appear to have been viewed at the time as inconsistent with the immunity.

227. In the same year, the House of Lords delivered judgment in G v G[431].  That was an appeal from the dismissal of an application for a decree of nullity of marriage brought by a husband on the ground of his wife's impotency.  The appellant and his wife were married in 1913 and the evidence of their relations spanned the period from that date to 1921.  The wife had evinced an hysterical reluctance to engage in sexual intercourse.  The question for the court was whether this psychological obstacle to consummation amounted to incapacity, as distinct from the mere wilful refusal of conjugal rights.  The court below had doubted that the husband's repeated attempts at intercourse had exhibited "a sufficient virility"[432].  It was in this context that Lord Dunedin observed[433]:

     "It is indeed permissible to wish that some gentle violence had been employed; if there had been it would either have resulted in success or would have precipitated a crisis so decided as to have made our task a comparatively easy one."

     [431][1924] AC 349.

     [432]G v G [1924] AC 349 at 357.

     [433]G v G [1924] AC 349 at 357.

228. His Lordship considered the husband's account "as to why he did not use a little more force than he did" to have been an acceptable explanation[434] and the appeal was allowed.  The speeches in G v G speak to another age.  The decision in that case is closer to the date of the acts charged against the appellant than was the hearing of this appeal.

     [434]G v G [1924] AC 349 at 358.

229. More than a decade after the events giving rise to this appeal, in 1975, Lawton LJ, giving the judgment of the English Court of Appeal in R v Cogan, proceeded upon acceptance that it was a legal impossibility for a man to rape his wife during cohabitation[435].  The accused bore accessorial liability for the rape of his wife by another.  In the following year, Geoffrey Lane LJ extended the exception to the immunity to allow the conviction of a husband for the rape of his wife where he had given an undertaking not to molest her[436].  Of present significance is his Lordship's view that, "[a]s a general principle, there is no doubt that a husband cannot be guilty of rape upon his wife"[437].  The undertaking given in lieu of an injunction operated in that case to eliminate the wife's matrimonial consent to intercourse.

     [435]R v Cogan [1976] QB 217 at 223.

     [436]Steele (1976) 65 Cr App R 22.

     [437]Steele (1976) 65 Cr App R 22 at 24.

230. A convenient account of the law in England as it was understood in December 1983 is contained in the Report of the Criminal Law Revision Committee, which had been asked to review the law relating to, and penalties for, sexual offences[438]:

     "In defining rape the Sexual Offences (Amendment) Act 1976 uses the term 'unlawful sexual intercourse'.  What is 'unlawful' is left to the common law.  The general rule is that sexual intercourse is 'unlawful' if it occurs outside marriage.  Sexual intercourse between husband and wife is not 'unlawful' except in a fairly narrow class of cases, which can be broadly described as cases where the parties have separated and their separation has been acknowledged by a court."

     [438]Criminal Law Revision Committee, Sexual Offences, Report No 15, (1984) Cmnd 9213 at 17-18 [2.57].

231. The existence of the immunity was also accepted in decisions of Australian courts delivered after 1963.  Reference has been made earlier in these reasons to decisions of the South Australian Supreme Court[439].  In New South Wales, Victoria and Tasmania, the English line of authority allowing an exception to the immunity in the case of a wife living separately and under the protection of a court order was adopted[440].  In R v McMinn, Starke ACJ observed[441]:

     "There can be no doubt that for centuries the law in England (and in Australia) has been that a man cannot rape his wife.  That this principle of law is out of tune with modern thinking has been recognized in Victoria by the Crimes (Sexual Offences) Act 1980 and there are similar Acts in other States."

     [439]See above at [212].

     [440]C (1981) 3 A Crim R 146; R v McMinn [1982] VR 53; Bellchambers (1982) 7 A Crim R 463.

     [441][1982] VR 53 at 55.

232. In New Zealand, a statute enacted in 1961 provided that no man could be convicted of rape of his wife unless, at the time of the intercourse, there was in force a decree nisi of divorce or nullity and the parties had not resumed cohabitation, or there was in force a decree of judicial separation or a separation order[442].  An amendment to the statute in 1981 maintained the immunity, save in cases where the husband and wife were living separately[443].  This restricted immunity was not removed until 1986[444].

     [442]Crimes Act 1961 (NZ), s 128(3).

     [443]Family Proceedings Act 1980 (NZ), First Schedule.

     [444]Crimes Amendment Act (No 3) 1985 (NZ), s 2.

233. The Model Penal Code, first published by the American Law Institute in 1962, relevantly provided that "[a] male who has sexual intercourse with a female not his wife is guilty of rape"[445].  In the revised commentary, published in 1980, this "traditional limitation" of the offence was maintained[446].

     [445]American Law Institute, Model Penal Code:  Official Draft and Explanatory Notes, (1985), §213.1(1). 

     [446]American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments), (1980), Pt 2, Art 213 at 271-275, 341-346.  The Comment notes that the rule existed at common law, prevailed at the time the Model Penal Code was drafted and "has been continued in most revised penal laws":  at 341.

234. The proposition that by the mid-20th century or earlier the immunity had fallen into desuetude as the result of changes in the conditions of society is without support.  In this country, as in other common law countries, the continued existence of the immunity does not appear to have been seen as inconsistent with the recognition of the equal status of married women.  There is the curious spectacle in this appeal of the respondent and the Attorney-General for South Australia contending that the maintenance of the immunity by the mid-20th century was inconsistent with the rights and privileges of married women, notwithstanding that as late as 1976 the Parliament of South Australia chose to preserve it[447].  

     [447]The original Bill introduced into Parliament, which purported to abolish the immunity completely, was rejected by the House of Assembly:  Sallmann and Chappell, Rape Law Reform in South Australia:  A Study of the Background to the Reforms of 1975 and 1976 and of their Subsequent Impact, Adelaide Law Review Research Paper No 3, (1982) at 20-21, 30-31.

235. By the mid-20th century, the notion that the immunity depended on the wife's irrevocable consent to intercourse may no longer have been seen as the justification for it.  However, this is not to accept that the immunity had "crumbled to dust".  The contemporary evidence suggests that the immunity was a recognised and accepted feature of the law of rape, albeit that the rationale supporting it may have changed. 

236. In 1954, Norval Morris and A L Turner, both then senior lecturers in law at the University of Melbourne, writing of the law respecting marital rape, were critical of irrevocable consent as the justification for the immunity[448].  They went on to discuss the "special position" of a married couple in law and in fact and to say[449]:

     "Intercourse then is a privilege at least and perhaps a right and a duty inherent in the matrimonial state, accepted as such by husband and wife.  In the vast majority of cases the enjoyment of this privilege will simply represent the fulfilment of the natural desires of the parties and in these cases there will be no problem of refusal.  There will however be some cases where, the adjustment of the parties not being so happy, the wife may consistently repel her husband's advances. 

     If the wife is adamant in her refusal the husband must choose between letting his wife's will prevail, thus wrecking the marriage, and acting without her consent.  It would be intolerable if he were to be conditioned in his course of action by the threat of criminal proceedings for rape."

     [448]Morris and Turner, "Two Problems in the Law of Rape", (1954) 2 University of Queensland Law Journal 247 at 258.

     [449]Morris and Turner, "Two Problems in the Law of Rape", (1954) 2 University of Queensland Law Journal 247 at 259.

237. The leading Australian text on the criminal law published in 1965 praised the decision in R v Clarke[450], which allowed an exception to the immunity; however, the author went on to observe[451]: 

     "[A] husband should not walk in the shadow of the law of rape in trying to regulate his sexual relationships with his wife.  If a marriage runs into difficulty, the criminal law should not give to either party to the marriage the power to visit more misery upon the other than is unavoidable in the nature of things."

     [450][1949] 2 All ER 448. See fn 295 above.

     [451]Howard, Australian Criminal Law, (1965) at 146.

238. The Mitchell Committee explained its reasons for proposing to confine the immunity in this way[452]:

     "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.  Nevertheless it is only in exceptional circumstances that the criminal law should invade the bedroom.  To allow a prosecution for rape by a husband upon his wife with whom he is cohabiting might put a dangerous weapon into the hands of the vindictive wife and an additional strain upon the matrimonial relationship.  The wife who is subjected to force in the husband's pursuit of sexual intercourse needs, in the first instance, the protection of the family law to enable her to leave her husband and live in peace apart from him, and not the protection of the criminal law.  If she has already left him and is living apart from him and not under the same roof when he forces her to have sexual intercourse with him without her consent, then we can see no reason why he should not be liable to prosecution for rape."  (emphasis added)

     [452]Criminal Law and Penal Methods Reform Committee of South Australia, Special Report:  Rape and Other Sexual Offences, (1976) at 14 [6.2].

239. The views expressed by the Mitchell Committee were in line with those expressed by the authors of the revised commentaries to the US Model Penal Code in 1980[453] and by the English Criminal Law Revision Committee in 1984[454].

     [453]American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments), (1980), Pt 2, Art 213 at 345:  "The problem with abandoning the immunity ... is that the law of rape, if applied to spouses, would thrust the prospect of criminal sanctions into the ongoing process of adjustment in the marital relationship."  

     [454]Criminal Law Revision Committee, Sexual Offences, Report No 15, (1984) Cmnd 9213 at 21 [2.69].  Explaining the majority view, which was not to remove the immunity, the Committee said:  "Some of us consider that the criminal law should keep out of marital relationships between cohabiting partners – especially the marriage bed – except where injury arises, when there are other offences which can be charged."

240. In R v C, the English Court of Appeal set out the advice that an imagined solicitor might have given a husband who inquired as to the legality of marital rape in 1970[455].  This was in the context of a submission respecting the foreseeability of further development of the law in light of decisions which had allowed exceptions to the immunity.  The Commonwealth Attorney-General submitted that the hypothesised advice applied with equal force in this case.  The determination of the issue raised by this appeal does not depend upon consideration of foreseeability of change to the law.  Nonetheless, the opinions of the academic lawyers and the members of law reform committees set out above may suggest that the solicitor in R v C was a man in advance of his times.

     [455]R v C [2004] 1 WLR 2098 at 2103-2104 [19]; [2004] 3 All ER 1 at 6-7.

241. There is a more fundamental difficulty with the submission that the Court should hold that a substantive rule of law affecting liability for a serious criminal offence has simply disappeared because of a perception that changed conditions of society no longer provided a justification for it.  The powerful reasons against an ultimate court of appeal varying or modifying a settled rule or principle of the common law[456] apply with particular force to a variation or modification which has the effect of extending criminal liability.  It is for the parliament to determine that a rule of exemption from criminal liability is no longer suited to the needs of the community.

     [456]State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633 per Mason J (Stephen and Aickin JJ agreeing); Zecevic v Director of Public Prosecutions (Vict) (1987) 162 CLR 645 at 664 per Wilson, Dawson and Toohey JJ, 677-678 per Deane J; [1987] HCA 26; Lamb v Cotogno (1987) 164 CLR 1 at 11 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; [1987] HCA 47.

242. The respondent and the Attorney-General for South Australia submitted that it is the responsibility of this Court to modify the law to avoid the "unjust" operation of a rule of immunity respecting criminal liability[457].  The submission is singular, given that there is no jurisdiction in Australia in which the common law governs a husband's liability for the rape of his wife.  No occasion arises to modify the law to make it "an effective instrument of doing justice according to contemporary standards in contemporary conditions"[458].  The law of marital rape in each Australian jurisdiction has been brought into line with contemporary standards.  Any statement of the common law respecting the liability of a husband for the rape of his wife with whom he was living could only apply to offences alleged to have been committed before the enactment of the statutory reforms.

     [457]The respondent's Notice of Contention asserts that, "if [the immunity] ever was part of the common law of Australia, it ceased to be so as at the date of the commission of the offences in this matter". 

     [458]O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 267 per Brennan J; [1991] HCA 14.

243. The declaration of the law for which the respondent contends carries with it that the parliaments of the States and Territories legislated over the course of the last century[459] upon a wrong understanding of the law.  That understanding was reflected in the Code States in the way in which the offence of rape was defined.  In those States, the position remains that a husband is not liable to be convicted for the rape of his wife before the date on which the words "not his wife" were removed from the Criminal Code.  In the jurisdictions which preserved the common law, the declaration would make it possible to reach back beyond the date on which statutory reforms were effected and attach liability to conduct occurring not less than a quarter of a century ago.  In South Australia, it would be possible to successfully prosecute a man for the rape of his wife in the years up to 1976.  In the more recent past, the same man would enjoy an immunity for the same conduct[460].  That is because the 1976 amendments enacted by the South Australian Parliament with the evident intention of limiting the immunity would now be seen to have conferred it.  The fact that the parliaments of every Australian jurisdiction enacted legislation upon the understanding that the immunity was a rule of the common law provides some evidence that it was; and is a good reason for this Court not to now declare it to be otherwise. 

     [459]In the case of Queensland, since 1899.

     [460]The immunity conferred by s 73(5) of the CLC Act was in force between 9 December 1976 and 16 April 1992.

244. The rule of law holds that a person may be punished for a breach of the law and for nothing else[461].  It is abhorrent to impose criminal liability on a person for an act or omission which, at the time it was done or omitted to be done, did not subject the person to criminal punishment.  Underlying the principle is the idea that the law should be known and accessible, so that those who are subject to it may conduct themselves with a view to avoiding criminal punishment if they choose[462].  However, its application does not turn on consideration of whether a person might be expected to have acted differently had he or she known that the proposed conduct was prohibited.  Deane J's dissenting reasons in Zecevic v Director of Public Prosecutions(Vict) explain why that is so[463]:

     "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'[464]."

     [461]See fn 286 above.  See also Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 609-611 per Deane J, 687-688 per Toohey J; [1991] HCA 32; Williams, Criminal Law:  The General Part, 2nd ed (1961) at 575-576. 

     [462]Blackstone, Commentaries on the Laws of England, (1765), bk 1 at 45-46.

     [463](1987) 162 CLR 645 at 677-678.

     [464]Precedent and Law, (1985) at 190.

245. The departure from the statement of the elements of self‑defence in Viro v The Queen[465], sanctioned by the majority in Zecevic, was undertaken in circumstances in which it was considered unlikely to occasion injustice and in which it was acknowledged that the endeavour to state the "defence" by reference to the onus had proved unworkable[466].  Nothing in the judgments in Zecevic affords support for the acceptance of the respondent's contention that this Court should restate the common law with the effect of extending criminal liability to a class of persons previously exempt from that liability.

     [465](1978) 141 CLR 88 at 146-147; [1978] HCA 9.

     [466]Zecevic v Director of Public Prosecutions (Vict) (1987) 162 CLR 645 at 664 per Wilson, Dawson and Toohey JJ.

246. The common law was demeaning to women in its provision of the immunity.  It is no answer to that recognition to permit the conviction of the appellant for an act for which he was not liable to criminal punishment at the date of its commission. 

247. For these reasons I would allow the appeal, set aside the answer to the question of law given by the majority in the Full Court and, in lieu thereof, answer that question "no".