PGA v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel JJ.,Heydon J.,Bell J.
• Judgment Date: 30 May 2012
• Neutral Citation: [2012] HCA 21,2012-0530 HCA A
• Docket Number: A15/2011
• Date: 30 May 2012

[2012] HCA 21

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

A15/2011

PGA

Appellant

and

The Queen

Respondent

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))

Criminal Law Consolidation Act 1935 (SA), s 48.

Matrimonial Causes Act 1857 (UK) (20 & 21 Vict c 85).

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

Words and phrases — ‘common law’, ‘marital exemption’, ‘marital immunity’, ‘presumption of consent’, ‘rape’, ‘retrospective application’.

ORDER

Appeal dismissed.

1 French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The appellant and his wife, the complainant, were lawfully married in South Australia on 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 2March 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 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

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, 198and 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.’

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.

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.

8 As it stood in 1963, s 4of 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

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.’

The lapse of time

12 Something should be said respecting the...