PGA v The Queen [2011] HCATrans 267 (27 September 2011)

Last Updated: 30 September 2011

[2011] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A15 of 2011

B e t w e e n -

PGA

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 27 SEPTEMBER 2011, AT 10.17 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friends, MR P.F. MUSCAT, SC and MR A.L. TOKLEY, for the appellant. (instructed by Legal Services Commission (SA))

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR K.G. LESSES, for the respondent. (instructed by Director of Public Prosecutions (SA))

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MR G.A. HILL for the Attorney-General of the Commonwealth intervening in the interests of the respondent. (instructed by Australian Government Solicitor)

MR J.D. McKENNA, SC: May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the Attorney-General of the State of Queensland intervening. (instructed by Crown Law (Qld))

FRENCH CJ: Yes, Mr Bennett.

MR BENNETT: May it please the Court. Your Honours should have our outline of oral submissions. It commences - I say we make five submissions. In fact, we make four. The fifth is really a collection of answers to the letter from the Registrar and a couple of matters in our learned friends’ submissions. The four submissions are numbered one to four, and matched by four schedules giving the materials in relation to each.

The first submission we make is that prior to R v L, a man could not be guilty of the crime of raping his wife. There were three qualifications to that. The first was that the conduct might amount to a lesser offence such as assault. Secondly, he could aid and abet another person to rape his wife, and if he did that, would be guilty as a principal, and the third exception was a series of exceptions dealing with cases where there had been judicial separation or a long molestation order or matters of that sort.

HAYNE J: Could not be guilty of or could not be prosecuted for? The propositions are radically distinct.

MR BENNETT: Your Honour, it was not a crime and it not being a crime, I suppose one could be prosecuted, but the prosecution would be doomed to failure.

HAYNE J: Would it be a demurrable indictment, would the accused have a plea in bar? What would be the position?

MR BENNETT: If the fact of the marriage were stated in the indictment, yes, your Honour.

HAYNE J: Yes, what, it would be demurrer?

MR BENNETT: Yes, your Honour. The starting point is R v L [1991] HCA 48; 174 CLR 379, which is a decision of this Court in 1991. I will just show your Honours before I come to deal with each of the arguments separately – it is at tab 12 in volume 1 of the book of materials - I should just show your Honours briefly how each of the arguments starts with R v L. The first point will be that the Court did not decide and did not purport to decide what the common law was. What it did, not to put too fine a point on it, was to apply the maxim referred to by the Registrar in his letter and change the common law to say that modern standards are different, times have changed, contemporary attitudes are such that this common law rule is obsolete and should be, in effect, repealed. We make that proposition squarely in relation to what was being done in R v L.

FRENCH CJ: Just before you go to that, and perhaps this is a supplementary question to that put to you by Justice Hayne, what do you say was the common law statement of the offence of rape?

MR BENNETT: Well, one could include the exception in the statement of it, or one could simply treat it as an exception on the basis of cases like Vines v Djordjevitch. One would take the view that an exception is something which is separate from the main rule and it may well be that the onus would be on the accused to show that he was married to the complainant. But that, of course, would be a fairly light onus of those cases. The other way of putting it is to say this, the way Hale put it, that the crime of rape involved the absence of consent, and there was an irrevocable – there was a fixed presumption – an irrebuttable presumption of it being consent, and if one puts it that way, the absence of consent could never be proven, so an element - - -

FRENCH CJ: So it is external to the offence.

MR BENNETT: It is external to the action. It may not be external to the offence because the offence involves absence of consent, which the Crown must prove.

BELL J: Another view would be that when Sir Samuel Griffith said that he understood his Code respecting offences against the person, save for the inclusion of provocation in circumstances in which the common law did not provide for it, but in other respects represented the common law, and when in his draft he described the offence as the carnal knowledge of a woman, not being a person’s wife, he was describing elements of the offence in a way that, as I understand it, is consistent with your answer to Justice Hayne’s question, and of course that turns on whether or not he was correct in thinking that that statement was a statement of the common law offence of rape. He had, by way of support, the statement of the offence in the draft Criminal Code of 1880 in the United Kingdom.

MR BENNETT: Yes, I am indebted to your Honour for that. That is a factor we would rely on. The second proposition I will be putting is that the Court should create a new common law rule as, we say, it did in R v L, and that is a rule that where the common law is changed by the Court because of the maxim that the basis of the rule has gone and it is inconsistent with modern thinking and so on, then that should not be taken as criminalising past conduct, except perhaps in relation to the person before the court when it makes that decision. That is the Ha argument, and I will deal with that when I come to it.

HAYNE J: Much will turn on the content of the proposition of criminalising past conduct.

MR BENNETT: Yes, your Honour.

CRENNAN J: Lord Lane in R v R observed that the reasoning there was not to create a new offence.

MR BENNETT: He did, your Honour, and we take issue with that. We say that the true reasoning is whether one describes it as removing an exception or as acknowledging that an exception is no longer appropriate, or however one puts it, the practical effect which is what the rule we contend for looks to, is to criminalise conduct which at the time was not criminal – at least, not criminal in the relevant way.

The third proposition is that in R v L, the Court relied heavily on current values and the view society now takes and matters of that sort, and that of necessity, when the Court applies the maxim that the basis for a common law rule has gone because of changes in society, then what the Court is deciding independently of whether one talks in terms of perspective overruling and so on, which we do not – but what the Court is necessarily doing is saying what the law now is and not what it was.

One cannot apply contemporary values to say what the law was. That would be a total oxymoron. That really is the key to the case. In R v L the Court was saying, and correctly saying, that in 1991 the contemporary values were such that the marital exemption for rape was inappropriate and should no longer be the law.

KIEFEL J: But you say that Sir Matthew Hale’s statement continues to reflect contemporary values, merely because no high appeal court has had the opportunity to state – so how does one determine what contemporary values are if the opportunity has not arisen?

MR BENNETT: Your Honour, it is a bit like asking when Australia became independent of the United Kingdom. We know that by one date it had happened, we know that at another date it had not happened and somewhere between those dates – people may differ on the precise point – it happened. This is in that category and we say that point lies somewhere between 1963 and 1991, and what I will be at pains to do in developing - - -

KIEFEL J: How do you say that? The last opportunity that a court of – was in a court of Crown Reserved cases and it was in Clarence, 1888. It was not until the 1990s that the matter was raised in the Court of Appeal in England.

MR BENNETT: In R v Clarence, there were eight of the 13 judges who took the view that the marital exemption applied, one said it did not, two doubted it and two did not decide the issue. I think I have the numbers right, but I will come to that when I get to R v Clarence. But it rejected the proposition that the common law permitted a husband to be charged with raping his wife.

What we will be saying is this, that in 1991 Australia was an enlightened country with sexual and racial discrimination legislation, with modern divorce laws and modern community attitudes in all these areas, and for that reason R v L was correct then and is correct now. But, we say, that was not true in 1963, and I will be taking your Honours to some legislation that was on the books in 1963 and to pronouncements of judges around that time to indicate that community attitudes then were far from what they were by the time of R v L.

To put a precise date on it is of course difficult. It is probably the early 1970s when attitudes towards matter of sex and race and discrimination and disability and so on changed, and the legislation changed them and attitudes changed. I will be seeking to demonstrate that we were a long way from that happy nirvana in 1963.

CRENNAN J: What about the fact that Sir Matthew Hale’s statement is expressly predicated on the nature of the institution of marriage at the time when he wrote, and self-evidently that institution has changed a great deal since that time, including changes following from that in relation to the status of women.

MR BENNETT: Yes, there have been changes, and what the Court will need to do in this case is weigh how far those changes have gone, and how far community attitudes had changed by 1963.

HAYNE J: You put it as though it is a sociological inquiry into community attitudes. Is that the right footing on which you put it, or are we concerned with the legal underpinnings of the rule of law?

MR BENNETT: We are concerned in one sense with community attitudes, but community attitudes as evidenced by legislation and judicial authority. It is obviously inappropriate in this sort of case to try and put as constitutional fact some sort of historical analysis of Australia in 1963, although one can get a pretty good picture by looking at legislation about homosexuality, legislation about divorce and restitution of conjugal rights and the absence of anti-discrimination legislation of any kind, sex, race or anything else - - -

CRENNAN J: But the legal basis that Sir Matthew Hale was talking about was that a lawful marriage at the time could not be dissolved, absent the intervention of the legislature, of course. He distinguished between a lawful marriage where husband and wife consented, and an unlawful marriage where a wife did not consent, which could be dissolved, if you read on a few pages.

MR BENNETT: Yes, but the basis of the particular passage was a much simpler one. It was the implied consent which could not be withdrawn. One of the things we will be showing your Honours is the Anglican marriage service in 1963 which still contained the word “obey”, and was replaced some years later by two optional forms of service.

FRENCH CJ: Mr Bennett, just come back for a moment to what was the common law relevant to the crime of rape in 1963. The provisions of section 48, I think, provided that:

Any person convicted of rape . . . liable to –

et cetera. So the criterion of liability for conviction would appear to have been the common law and the question then is what was the common law rule. Now, if you look to Hale in the very chapter in which he refers to the position of a husband at 628, it is said:

Rape is the carnal knowledge of any woman above the age of ten years against her will, and of a woman-child under the age of ten years with or against her will –

So there is no reference to the marital state there. Marital state appears to be referred to by reference to the:

mutual matrimonial consent and contract the wife hath given up herself –

et cetera, so it appears to go to consent. But is that statement at 628 a common law rule which applied in 1963, the criterion of liability if you like?

MR BENNETT: Your Honour, basically, yes. The actual rule may have had a number of possible bases, and the principal one he relies on is the nature of the consent given by entering into the relationship, and the fact that that cannot be unilaterally withdrawn. That is something which squarely, we would submit, is what the High Court was referring to when it referred to contemporary values in 1991.

FRENCH CJ: So how do you characterise what Hale said at 629? Was that an exception from liability, or was it an evidentiary presumption of some kind?

MR BENNETT: It seems to be based on a rule of law in its own right, that the consent - - -

FRENCH CJ: Not based on, because there is no reference to support it, is there?

MR BENNETT: No, your Honour, but clearly if there was consent, there is no rape. That is clear. So the question is, is there a consent implied by entering into marriage and, if so, is that consent irrevocable unilaterally. Those are simple questions of law, and Hale stated them and, as I will demonstrate to your Honours, they have been applied consistently until recently when it was realised, totally correctly, that they were out of touch with contemporary values, or whatever phrase one wants to use.

FRENCH CJ: Is Hale’s statement a statement of the common law, or is it a statement that becomes the common law?

MR BENNETT: Your Honour, no one can answer that question because we do not have cases prior to his statement which raise or discuss the issue - - -

HAYNE J: Not only do not but could not, effectively, before 1904 in the introduction of the criminal appeal structure, could we, or before the mid-1800s with the introduction of the Crown Cases Reserved system. The proposition that this is the common law is masking a whole set of assumptions, is it not, Mr Bennett?

MR BENNETT: The sources of the common law and the way the common law is demonstrated includes the works of authors such as Hale and leading authorities on the law. When one looks at them, one looks at the later statements about what was the situation and one looks at those two things basically and one sees a consistent reference to the fact that there was a marital exemption because of Hale. Hale’s statement may or may not have been reflected in practice before him – it probably was – but we do not - - -

HAYNE J: But you accept, do you not, that Hale states a rule which you identify as a rule he derives from the legal consequences of the status of marriage. Is that right?

MR BENNETT: Yes, your Honour.

HAYNE J: That is, the legal consequences of the status of marriage as at the date that Hale was right.

MR BENNETT: Yes, your Honour.

HAYNE J: Therefore it becomes necessary, does it not, to examine with some care what occurs in the intervening years concerning the legal consequences of the status of marriage. You go that far.

MR BENNETT: There is nothing prior to 1963, except perhaps some minority views in Clarence which suggest the contrary.

HAYNE J: Nothing except the Married Women’s Property Act, nothing except the Criminal Evidence Act making a wife competent as a witness against her husband, nothing except all of the law relating to divorce, nothing except all of the law relating to restitution of conjugal rights and the absence of the capacity or willingness of the courts to order restitution of intercourse between married partners as distinct from living together.

MR BENNETT: Yes, your Honour. There is no doubt that there were what could be described in the modern jargon as “green shoots” prior to 1963, but women were given the vote prior to then, coverture was abolished, and there were other things. On the other hand, as I will be showing your Honours, women in 1963 were automatically dismissed from the public service if they married.

KIEFEL J: But as at 1959 under the Matrimonial Causes Act, was it not the case that the woman could petition for divorce on the ground of cruelty and that cruelty might be established by reference to her having been raped by her husband, or her husband making unreasonable demands of sexual intercourse in the marriage.

MR BENNETT: Yes, your Honour, and there were also cases suggesting that if a wife refuses to permit her husband to have intercourse with her, there are matrimonial consequences if a party then leads as to who has deserted who, and so on. Synge v Synge, I think, is the leading case on that, and I will take your Honours to those later.

KIEFEL J: But it cannot be unimportant that rape could be grounds for determination of the marriage as at 1959.

MR BENNETT: It was not grounds as – well, that was rape of a third party - - -

KIEFEL J: No, no, rape within the marriage would be the ground –namely, the ground - it would support a ground of cruelty.

MR BENNETT: It could constitute cruelty. Many things could constitute cruelty, your Honour, and the fact that many things could constitute cruelty does not really help. It was a very subjective concept in those days and included mental cruelty and the fact that it was in the Matrimonial Causes Act and available to either party can hardly be seen as a huge step forward in the emancipation of women. It is merely a small factor.

The statement by Hale appears at tab 59 of volume 2 of the book of materials, and it is interesting that at page 629 one of the exceptions which became important in Lord Audley’s Case is expressly referred to, and that is the husband who participates in the rape of his wife by another man, and he says that is a rape:

That the husband . . . is also guilty as a principal in rape –

and in that case –

the wife may be a witness against her husband –

That rather suggests that the witness problem was not part of the origin of the rule because it was quite clear by the time of Hale that a wife could be a witness against her husband where the offence was an offence directed at her. That appears from two cases. The first is Lord Audley’s Case (1631) 3 State Trials 401, which is at tab 3 of the Commonwealth’s bundle of historical material. It is a case falling squarely within the exception referred to by Hale.

The important point for present purposes, if your Honours go to the front page of the case, your Honours see the first column is numbered 401 and the second column is numbered 402. In the second column, in paragraph 4, one of the cases the judges were asked was:

Whether the Wife in this case might be a witness against her husband for the rape? Answ. She might: for she was the party wronged; otherwise she might be abused. In like manner a villain (vassal) might be a witness against his lord in such cases.

The importance of that is that the inability of the wife to give evidence against her husband in certain types of case did not apply where it was conduct directed at her and, therefore, that cannot have been part of the basis or justification for the rule.

The point is made even more clearly in the case of R v Jellyman, which we have handed to your Honours. It is an 1838 decision reported in [1839] EngR 238; 8 Car & P 604 and in volume 173 of the reprint at page 637. That was a case where a husband was convicted of the act of sodomy on his wife and the judgment is commendably short and it makes my point very, very clearly. Your Honours see it is a judgment of Justice Patteson about a third of the way down the page. The facts are in the previous paragraph:

It was stated by the wife of the prisoner, that he committed the offence while in bed with her, and that she resisted as much as she could; and in answer to a question put as to whether the prisoner had penetrated her person in ano, she said, “I am quite sure that he did; but he did not complete it so much as he did six years ago.”

The judge then says this –

There was a case of this kind which I had the misfortune to try, and it there appeared that the wife consented. If that had been so here, the prisoner must have been acquitted; for although consent or non-consent is not material to the offence, yet, as the wife, if she consented, would be an accomplice, she would require confirmation; and so it would be with a party consenting to an offence of this kind, whether man or woman. If you either disbelieve the evidence, or believe the prosecutrix did not resist, you ought to acquit; it was her duty to have resisted such an attempt to the utmost.

The point there again is that if the exclusion about her giving evidence against him would be based on her being an accomplice, and she was a competent witness, if she resisted and, therefore, the offence was directed at her. Because of those cases, the suggestion that the rules of evidence played any part in the creation of Hale’s proposition must be rejected.
GUMMOW J: What is the status of Lord Audley’s decision? Some sort of advisory opinion given by the judges to the Attorney-General, is it not?

MR BENNETT: I am sorry, which case - - -?

GUMMOW J: Lord Audley was being tried before the House of Lords.

MR BENNETT: Yes, he was, your Honour, and the - - -

GUMMOW J: This is some preliminary activity between the Attorney-General and the judges?

MR BENNETT: Yes, the judges apparently were sent for - - -

GUMMOW J: By the Attorney-General.

MR BENNETT: Perhaps by the lords, maybe.

GUMMOW J: Not the second column on the first page.

MR BENNETT:

The Judges, on Friday morning before the trial, being sent for - - -

GUMMOW J: Not by the Lord High Steward who would be controlling the House of Lords activity, but by the Attorney-General, anyhow.

MR BENNETT:

but Denham being met at Serjeants-Inn in Fleet-street, these Questions were proposed them by sir Robert Heath, the king’s Attorney-General –

So, the Attorney-General composed the questions and one of the judges, Sir James Whitlock, set down in writing the four questions and the – set down in writing the questions which followed. There were, in fact, 10 questions. The report goes on with the trial itself which takes place before the Lords and he is convicted and sentenced to death and the execution is described.

KIEFEL J: But the rationale for the wife being permitted, contrary to the rule of evidence at the time, to give evidence against the husband in Lord Audley’s Case and later in Bentley v Cooke may be of some relevance and that is because it was seen as a rule of necessity to allow her to give evidence or otherwise she would have no remedy for her injuries, I think, was the way Lord Mansfield looked at it, which, at least, acknowledges that the courts were intended to give protection to a wife in relation to personal injury, some wrong in the nature of a personal injury, howsoever brought.

MR BENNETT: Yes, it indicates, your Honour, that Hale’s statement of the rule cannot be based on the inability of the wife to give evidence against her husband. Ex hypothesi, if it vague she does not give an express consent at the time and, therefore, ex hypothesi, if it be an offence it is an offence against her husband which that rule of necessity would apply. So the rule of evidence cannot have been a basis for Hale’s rule. That is all we get from it.

GUMMOW J: If Sir Matthew Hale is right, why was not the outcome in Lord Audley’s Case wrong?

MR BENNETT: Because Lord Audley’s Case involved the exception he refers to at page 629 where the husband participates in the rape of the wife by a third party.

GUMMOW J: It does not make sense, really.

MR BENNETT: Well, it does, your Honour. It is not a part of marriage that one should submit to - - -

GUMMOW J: If Lord Audley was the sole participant in this activity, you say, it would have been a different result?

MR BENNETT: Yes, your Honour. There might have been a - - -

GUMMOW J: Rather than his manservant being - - -

MR BENNETT: Yes, there was defence with the manservant as well, but leaving that aside it would have been a different result, yes.

BELL J: A more recent illustration of that is the decision of the Court of Appeal in R v Cogan [1975] EWCA Crim 2; [1976] 1 QB 217 in which in the circumstances, Morgan’s Case just having been decided, the man who was procured to have intercourse with the accused wife was acquitted. The accused had incorrectly been indicted as an accessory whose liability was, therefore, derivative. The Court of Appeal accepted that the law was that a man cannot by his own physical act rape his wife during cohabitation because the law presumes consent from the marriage ceremony, citing Hale, but that there was no such presumption when a man procured a drunken friend to do the act for him.

MR BENNETT: No, precisely, your Honour.

GUMMOW J: Lord Audley was indicted as a principal.

MR BENNETT: Yes, he was, your Honour, but that is the exception. The exception is where - - -

GUMMOW J: So you have an exception for some principals but not other principals.

MR BENNETT: .....stated by Hale himself.

GUMMOW J: I know that.

MR BENNETT: But they are – and it is clearly a logical exception, your Honour, because it is no part of the marriage contract that the wife consents to intercourse with other men at the husband’s demand. That is clear on any view of it.

FRENCH CJ: I notice in Hale’s statement at 629, it appears to be footnoted with a reference to a proposition that a man having connection with a woman under a deceit practised on her, she supposing him to be her husband, is not guilty of the offence of rape. Does one read that as the sort of source of the rationale for this proposition?

MR BENNETT: There have been a number of cases on that issue, your Honour. It is discussed extensively by this Court in Papadimitropoulos.

FRENCH CJ: I was looking at the origin of the proposition set out in Hale and whether it derives from nothing wider than the footnote in 3 - refers to some cases.

MR BENNETT: Your Honour, it is difficult to see that it does. If I may just finish answering the question I was asked a moment ago, the first sentence in Hale’s exception at page 629 where there is a third party involved is:

That this was the rape in [the third party] 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.

So that puts the basis of the exception very clearly.

KIEFEL J: Hale does not deal with the difficulty which arises with the aspect of assault accompanying or being part of the physical act of rape, of the offence. It was later accepted that a husband who might not, following Hale’s statement, be guilty of the offence of rape could, nevertheless, be found guilty of an assault. There is a certain illogicality – well, on one view illogicality in saying that a wife was obliged to consent to rape.

I think that was pointed out by Lord Keith of Kinkel in R v R because it would seem to imply that a husband was entitled to use a reasonable amount of force to achieve his rights, if that is what the implied consent went to. This is not a matter dealt with by Sir Matthew Hale at all. It is a legal fiction which seems to be based upon a strange assumption that there is no assault accompanying a non-consensual act – a truly non-consensual act.

MR BENNETT: Well, your Honour, it is not necessarily inconsistent because, apart from anything else, there are many things that one cannot consent to. One cannot consent to being killed. One cannot consent to a major assault that causes serious harm but - - -

KIEFEL J: Some of the cases that have dealt with the question of rape as against assault in these situations have involved assaults occasioning bodily harm. You cannot consent to that.

MR BENNETT: An assault is an assault. It may be an assault even if there is some underlying consent, but a consent to assault can always be withdrawn even at the last minute. So if one says to a person - - -

HAYNE J: But you say the consent to the assault constituted by intercourse cannot be withdrawn by the wife? That is the position - - -

MR BENNETT: That is the rule that Hale referred to. This being such an important part of marriage, the consent cannot be withdrawn and, therefore, there is a standing consent. That would not – that standing consent would not necessarily be a defence to assault. It would be a defence to rape. Rape involves something more than and in many ways different to assault. Rape can, of course, take place without assault. It could take place while a woman is sleeping, for example, in some cases.

FRENCH CJ: What is assault at common law? Is it as low as a touching of someone without their consent or an apprehension or threat to do that, or battery for that matter?

MR BENNETT: Well, your Honour, there is a range of jurisprudence on that. There is an exception in relation to what one might call normal social jostling where one walks past a person and has very minor physical contact as one works past.

FRENCH CJ: Well, let us say non-consensual. Intercourse does not fall into that category.

MR BENNETT: No, there are cases where a threat can be an assault and in those cases the threat will be construed carefully. There is one case where - - -

FRENCH CJ: I am just wondering about the coherence of the common law rule which you propound, that is all, with the law relating to assault. Can the husband who has non-consensual intercourse with his wife be charged with assault and battery?

MR BENNETT: Certainly, if it is accompanied with violence, yes. There may be a question about what the situation is in the sleep situation. But, certainly if it is accompanied with violence there is no doubt that the husband can be charged with assault. That has always been the case.

FRENCH CJ: What is the lowest threshold for non-consensual physical contact before it becomes a violence in relation to intercourse? I mean, if one says, “Look, you can have intercourse with your wife without her consent because she is deemed to have given her consent” - I mean, this is the Hale proposition but do you say you can still be charged with assault or that you cannot because it is covered by the consent?

MR BENNETT: Well, your Honour, it must depend to some extent on the facts. If it were a sleeping situation, one might simply say it was covered by the consent and that – but even there, that might be – that would be a difficult case to deal with. In a situation where there was a purported withdrawal of consent and then physical violence used, clearly there was an assault, although, on Hale’s proposition at common law, there was no right to withdraw the consent. The two are not necessarily inconsistent. The fact that the consent may remove the element of the crime of rape but does not necessarily remove the elements of an assault is not inconsistent. It may mean that there are some fine distinctions in some cases.

KIEFEL J: I think closer to the time of 1963 is the decision of R v Miller [1954] 2 QB 282. It appears at tab 29 in volume 1 of the book of materials. That was the judgment of Justice Lynskey who upheld the submission that the husband could not be guilty of rape but said that the husband was not entitled to use force or violence for the purpose of exercising his right to intercourse and if he did so he committed an assault and that relevantly an assault which caused an hysterical and nervous condition is constituted an assault occasioning bodily harm.

MR BENNETT: Yes, but not rape.

KIEFEL J: Which would be - in the case of factual non-consent as distinct from fictional consent would probably be replacing most cases of non-consensual intercourse between husband and wife.

MR BENNETT: But the case makes a distinction. I will be coming back to that case later because it provides the best and most convenient summary of the different judgments in Clarence. There is also reference in – yes there is a reference in R v Jackson.

KIEFEL J: I think the question of assault was also referred to by Justice Wills in Clarence’s Case and also in 1876 in Phillips v Barnet. So it was reasonably well established. I do not have the citations for Phillips v Barnet to hand.

MR BENNETT: Yes, Jackson’s Case was a case on false imprisonment of the wife – wrongful imprisonment of the wife where there had been a decree of restitution of conjugal rights. It seems to be a case which was based on the fact that having obtained a court order one is precluded from trying oneself to enforce what the order commands. A judgment creditor cannot walk into his debtor’s house and take goods. There are many other situations where the courts have said if a party elects to proceed through the judicial process that one loses whatever right one might have had to do something directly. This was a case, as I say, of trying to enforce a decree of restitution of conjugal rights with kidnapping and imprisonment, which was not permitted.

KIEFEL J: Phillips v Barnet [1876] 1 QBD 436 held that the wife could not sue in a civil suit following divorce for an assault which occurred during marriage but the court did not seem to doubt that during marriage the husband could be prosecuted for assault – criminally prosecuted for assault.

MR BENNETT: Yes, the whole civil area involves a lot of different doctrines.

KIEFEL J: Yes, quite so.

MR BENNETT: This Court considered one aspect of that two years ago where there was a hearing with a section in the Family Law Act which says that one cannot sue in contract in tort – sorry, that one can sue in contract in tort and the question of what that covers. Your Honours recall there was a fraud case brought by a husband against a wife for falsely alleging that a child was the child of the marriage and the courts held in the end that the action would not be allowed.

Now, if your Honours would go to schedule 1 dealing with the first submission about the common law. I take your Honours now to the R v Clarence 22 QBD 23 and it is convenient to have open while I take your Honours to it, the judgment in R v Miller [1954] 2 QB 282 because that case rather more easily than going to the original volume summarises the various judgments. Miller is at tab 29 of the materials volume. Your Honours see two-thirds of the way down page 286 Justice Lynskey refers to the special court of the Crown Cases Reserved with:

13 judges composing the court, and apparently their views differed considerably. Nine judges took one view and four took another.

The actual count when one goes through is eight, three, two but I will show your Honours that as one goes through. The judges who decided that in accordance with Hale’s proposition are Justice A. L. Smith at the top of page 287 where:

“At marriage the wife consents to the husband exercising the marital right. The consent then given is not confined to a husband when sound in body, for I suppose no one would assert that a husband was guilty of an offence because he exercised such right when afflicted with some complaint of which he was then ignorant. Until the consent given at marriage be revoked, how can it be said that the husband in exercising his marital right has assaulted his wife?

So he takes it further. He apparently took the view that the wife could revoke her consent but he does not suggest under what circumstances she could revoke it. He left it at large. Justice Stephen, who, of course, was a leading authority on criminal law said:

I wish to observe . . . that I was quoted as having said in my Digest of the Criminal Law that I thought a husband might under certain circumstances be indicted for rape on his wife. I did say so in the first edition of that work, but on referring to the last edition it will be found that that statement was withdrawn.

Your Honours can note that Justices Mathew, Huddleston and Grantham agreed with Justice Stephen so that gives us four for that view. Justice Lynskey goes on on page 287:

So far, there were three different views on the matter. Hawkins J. took the strong view that a husband could not be convicted of a rape upon his wife.

There is a long passage about that dealing with the contagion question. He says at the top of the next page:

That view of the law was a dissenting judgment, and it is a judgment which would appeal to a great many people as drawing a distinction between what a woman is assenting to and what she is not; that is, she is assenting to the act of sexual intercourse, but not to another act which is dangerous to her health -

So when Justice Lynskey says the view was a dissenting one, he is referring to the references to venereal disease. Then, two paragraphs down, Baron Pollock said:

“The husband’s connexion 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 connexion itself is in a different position from any other woman, for she has no right or power to refuse her consent.” And he quoted again from Hale.

Now, Justices Manisty and Coleridge expressed no view on the question. The judges who took the other view were first Justice Wills at the bottom of page 286 of Miller where his Lordship says:

Wills J., who gave the first judgment, said: “If intercourse under the circumstances now in question constitute an assault on the part of a man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority.”

So he takes the opposite view. That view seems to have been shared by Justice Field referred to on page 288 in the second full paragraph on the page where:

Field J. cited the passage I have quoted from Hale’s Pleas of the Crown and said: “The authority of Hale C.J. on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime.”

He seems to doubt the proposition but not expressly refute it. Justice Charles agreed with Justice Field. So, the only justices against the proposition are Justice Wills and Justice Field and Justice Charles doubt it. Justice Wills is strongly against it. So, as I say, eight of the 13 clearly affirm Hale’s proposition. That is, I think, all I need to say about Clarence.

HAYNE J: You say they affirm Hale’s proposition. The immediate question in Clarence was a question about construction of two provisions of the legislation concerning offences against the person, was it not, in particular, as appears from the report of Clarence under tab 22 – if you go to 22 QBD at 24, the prisoner’s argument at page 24 as to the first count focused upon whether his conduct was the infliction of “grievous bodily harm” “unlawfully and maliciously”. The hinge about which the case turned was whether the conduct was unlawful and malicious. See also the second count of assault - whether assault was committed in circumstances where intercourse occurred with expressed consent - - -

MR BENNETT: Sorry to interrupt, your Honour - - -

HAYNE J: Tab 22.

MR BENNETT: I do not have the copy in front of me.

HAYNE J: Do you have tab 22, the second page of that. That is at page 24 of the report. You see the prisoner’s argument, pages 24 and 25.

MR BENNETT: Yes.

HAYNE J: Page 24, the first count focuses upon – the argument focuses upon whether the conduct was unlawful and malicious.

MR BENNETT: Yes.

HAYNE J: The argument on the second count focuses upon whether there was an assault, an assault that is said to have occurred in circumstances where there is an expressed consent, see point 5 at page 25, expressed consent to intercourse in circumstances where the accused man was suffering from a sexually transmitted infection which he passed on to his wife. Now, true it is there is reference throughout the judgments to the ruling as stated by Hale but the immediate question was rather different, was it not?

MR BENNETT: Well, in that sense the references to Hale were obiter. In another sense they were part of the overall reasoning process which led to the result, but, yes, the actual decision in that case was not a charge of rape against the husband, I accept that.

HAYNE J: It was a case where there had been consensual intercourse, the wife not knowing that the husband had an infection.

MR BENNETT: Yes, and as I illustrated, your Honour, some of the justices decided it on issues relating solely to that aspect of the case and did not need to go to Hale’s proposition. Insofar as the case demonstrates the existence of a common law rule it is authority which can be used to support it. It is a decision of a large number of judges and the view is expressed fairly clearly.

Now, there are other cases we have listed in schedule 1. Cogan & Leak is a third party rape case. Steele (1976) Cr App R 22 is a case about where there was an undertaking given by the husband to the court not to molest the wife, and it was held that that came within the same exception, I suppose, as the exception about cases where there has been a decree of judicial separation or that sort of thing. Kowalski (1988) 86 Cr App R 339, your Honours need not go to it, but it is held there that the husband is charged with indecent assault for a forced act of fellatio, that that was not within the marital exception, but the case clearly refers to and recognises the marital exception. Indeed, Justice Kennedy at page 341 says:

It is clear, well-settled and ancient law that a man cannot, as actor, be guilty of rape upon his wife. That exception, which traces its history back to Hale’s Pleas of the Crown (1778 ed.) Vol. 1, ch. 58, is dependent upon the implied consent to sexual intercourse which arises from the married state, and which continues until that consent is put aside by decree nisi, by a separation order or, in certain circumstances, by a separation agreement. Self-evidently, none of those limitations in time arise in this case . . .

Similarly, it is clear that it is not the law that a man may never be guilty of an indecent assault upon his wife –

et cetera. So that is Kowalski.

GUMMOW J: I think at some stage, Mr Bennett, you have to face up to this question. When Sir Matthew Hale talked about the “mutual matrimonial consent” he was drawing into the courts of common law some view of what the ecclesiastical law took to be the nature of the matrimonial relationship – that has to be right. When one talks about the common law in 1677 you are really talking about what happened in the Court of King’s Bench, Common Pleas and Exchequer, is that not so, which to some extent incorporated principles from other courts, in particular the Chancery Court and the ecclesiastical court. They had views about what the matrimonial relationship was, which are quite sophisticated and are not really sufficiently encapsulated in that pithy statement by Lord Hale.

So if the wife left the house, left the matrimonial house, and the husband went to the ecclesiastical court to get an order for restitution of conjugal rights, including right of intercourse obviously, he could not go and seize her. If he went to the ecclesiastical court, they might imprison her until such time as she agreed to return. That is a very different proposition, and that right, that power if you like, in the ecclesiastical courts went in the course of the 19th century. This is discussed in Jackson [1891] 1 QB, I think, which is in your book of materials under tab 23.

The Matrimonial Causes Act 1884 took away the power of enforcing a decree of restitution of conjugal rights by attachment of the wife. So the argument in Jackson said, well, that is fine, that means the husband can go and seize her. In this case the solicitor, accompanied by the article clerk, went and seized the wife and took her back to the matrimonial home and there she was confined until such time as she consented.

MR BENNETT: The nature of obligations under one’s articles may have changed.

GUMMOW J: Yes, Lord Halsbury got quite angry with that argument, namely, he is saying at page 680, things have moved, even the ecclesiastical....., which was nevertheless short of consent to rape has gone, and he makes that clear at 680. These are the sort of confluences of principles and jurisdictions that are all to some extent flowing through or under what Lord Hale said and which change from time to time, particularly in the course of the 19th century.

MR BENNETT: Yes, some of them did, your Honour.

GUMMOW J: Not just in 1963.

MR BENNETT: Well, your Honour, against that one has the consistent statements in the line of cases we have referred to in schedule 1 as to what the common law was, and one then has to say – one then has to ask the question - - -

GUMMOW J: What the common law was after the fusion of the court structures in the 1870s. That seems to be insufficiently appreciated in these arguments that were put to the court in those cases we have been referring to.

MR BENNETT: Your Honour, it is the criminal courts, of course, enforce the common law and the - - -

GUMMOW J: Not just that.

MR BENNETT: Not just that, no.

GUMMOW J: You can get sued for performance of contract, Mr Bennett.

MR BENNETT: Yes. Your Honour, that brings me - - -

GUMMOW J: Not, I think, specific performance of contract of marriage as to enforce conjugal rights, although Sir Matthew Hale talks about contract as well as matrimony, does he not?

MR BENNETT: Yes. Your Honour, it is clear that the order for restitution of conjugal rights did not itself require sexual intercourse, and the court would not order sexual intercourse.

GUMMOW J: Would there be an action for damages? Could there be an action for damages against the wife for refusal of intercourse, breach of contract? It sounds incredible. Not the least incompetency of parties.

MR BENNETT: There would be real questions about that, your Honour, yes. Of course, the so-called doctrine of unity of husband and wife, which is rather taken apart by Glanville Williams in his article on the subject was - - -

GUMMOW J: Yes, that is right. A well-known criminal lawyer, actually.

MR BENNETT: Yes. He refers to the case where a man buys a return railway ticket and uses the forward part and his wife uses the return but the ticket is not transferable and the question is, has he committed some sort of fraud on the railway company on the basis that the husband and wife were one person and therefore it is no breach.

FRENCH CJ: He was acquitted on the grounds he did not have an intent to defraud in that case, I think, rather than on the more arcane argument.

MR BENNETT: Yes, exactly. He points out that the reference to the common law principle in that case seems to have been apocryphal or perhaps a humorous reference from the Bar table.

FRENCH CJ: So how do you say the common law rule develops in this case? Is it a rule that exists at the time of Sir Matthew Hale’s statement - I mean, in terms of characterising your case - and is reflected in his statement or is it something that, as it were, crystallises out of subsequent judicial adoptions?

MR BENNETT: Your Honour, that question cannot be given a simple answer, with respect, because the way the common law develops is by a combination of things and at some point that combination is sufficiently large to amount to a common law rule. Hale, of course, would have said that he was stating an existing common law rule rather than creating a new one.

HAYNE J: But we agreed earlier in argument, a rule derived from the legal consequences of the status of marriage. Is that right?

MR BENNETT: Yes, your Honour.

HAYNE J: Have we not then, as Justice Gummow suggests, to look at the way in which the legal consequences of status of marriage had moved, for they had moved very considerably through the 19th century and the early part of the 20th century?

MR BENNETT: Well, your Honour, our answer to that is the table set out in schedule 3 of our submissions where we demonstrate the differences in legislation and other matters between 1963 and 1991 and, without going through them in enormous detail - - -

HAYNE J: I was in fact directing your attention to what had happened before 1963, changes that had occurred before then.

MR BENNETT: Yes, your Honour, and divorce was based on grounds, whereas after the Family Law Act there was a single ground of separation for a year, there were the provisions about restitution of conjugal rights, there is a prohibition on homosexual acts in every State, whereas almost all of those had been repealed by 1991. In 1994 there was also a Commonwealth Act, the Human Rights (Sexual Conduct) Act, which effectively under section 109 overrode the remaining State prohibitions against homosexual acts.

The Public Service Act 1922 (Cth) in 1963 still contained section 49, requiring a woman to cease to be a public servant if she married, saying that a married woman could not be a public servant. That was replaced by an intermediate more discretionary provision in 1966, and that in turn was repealed in 1973. So the changes in something as basic as that occurred between 1963 and 1991. There was in 1963 no legislation about sex discrimination, marital status discrimination, religious or racial discrimination or age discrimination or any of the various forms of – even obviously not sexual preference discrimination, but all those have come by 1991 and that is set out in the Acts we have listed there.

The Anglican Book of Common Prayer in 1963 used the word “obey”, then in 1978 it was replaced by what was called a new Australian Prayer Book which offered a choice, and the choice was to have the word “obey” in it or not to have the word “obey” in it, and it set that out. In 1963, of course, there was still a White Australia Policy and that was, of course, subsequently abolished, well before 1991. What we submit is that in 1963 Australia was a very unenlightened and socially backward country by modern standards. It probably shared that status with most of the world.

GUMMOW J: It gave women the vote a long time before the United Kingdom, Mr Bennett.

MR BENNETT: Yes, we did. Your Honour, I have acknowledged that - - -

GUMMOW J: And introduced the Testator’s Family Maintenance Act to assist widows long before the United Kingdom.

MR BENNETT: Yes. Your Honour, I have acknowledged - - -

FRENCH CJ: I think they got it first in Western Australia.

MR BENNETT: Yes. I have acknowledged that there were green shoots, but that is all they were. In major matters the women’s movement had not achieved the major reforms which had been achieved by 1991. The two major ones they had achieved were the vote and the removal of coverture and there were others to which the Commonwealth has referred and some of which your Honours have referred. But, in major respects, 1963 was a pre-enlightenment year, and 1991 was a post-enlightenment year, and that is why we place great emphasis in L, to which I will now go, on the statements about contemporary values and the view society now takes and so on, because that was talking about 1991.

GUMMOW J: How do you fit the Matrimonial Causes Act of 1959 into - - -

MR BENNETT: Well, your Honour, that was an Act - - -

GUMMOW J: The ghost of Sir Garfield Barwick is probably stirring.

MR BENNETT: Your Honour, that still had restitution - - -

GUMMOW J: That was a revolutionary piece of social legislation in Australia.

MR BENNETT: Well, it was, your Honour, but it did not go anywhere near as far as the Family Law Act.

GUMMOW J: No doubt.

MR BENNETT: What we have demonstrated is that when - - -

GUMMOW J: It enabled a wife to divorce her husband simply by living separately and apart for a statutory period.

MR BENNETT: For five years.

GUMMOW J: Without a matrimonial defence under the old rule.

MR BENNETT: Yes, that was revolutionary, and that was – but that was a five-year period.

GUMMOW J: It dealt also with questions of restitution of conjugal rights, did it not?

MR BENNETT: Yes, it did, your Honour, and we have set those provisions out in the schedule.

FRENCH CJ: The focus has to be really on the matrimonial relationship and the extent to which that underpinned the common law rule for which you contend rather than some sort of general social glow.

MR BENNETT: Yes. Well, your Honour, the report in this State given by Justice Mitchell was in the seventies and it, as Justice Gray makes clear in his judgment, clearly acknowledged what the common law was and recommended changes, and there were then statutory changes in South Australia and in all the Code States. If your Honours go to page 40 of the appeal book in the judgment of Justice Gray, he refers at line 20:

In March 1976 the Criminal Law and Penal Methods Reform Committee of South Australia reported to the Attorney-General upon the law relating to rape and other sexual offences. The Committee was chaired by Mitchell J.

In the report, the Committee considered whether the offence of rape should be extended to some cases to which it did not at that time apply, and in particular, whether a husband should be capable of being found guilty of the rape of his wife.

Then his Honour quotes from the report:

The second class of persons which the committee has considered is that of husbands. The principle at common law was that a husband could not be guilty of a rape upon his wife because the fact of marriage denoted consent to sexual intercourse.

She then refers to the exception about separation orders and agreements to separate:

The implied consent . . . is not revoked merely by the filing of a petition for divorce. It is however revoked by a decree nisi –

et cetera, and she goes on to discuss sodomy. Then at the bottom of the page:

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.

This is 1976, so we are 13 years after what we are talking about here:

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 . . . If she has already left him and is living apart from him and not under the same roof . . . then we can see no reason why he should not be liable to prosecution for rape. A fortiori if she has lived apart from him for 12 months and has instituted proceedings . . . If a husband breaks into the house in which his wife is living apart from him, overpowers her, and has sexual relations with her . . . he should be liable to prosecution for rape.

So what her Honour was suggesting was an intermediate position in which – and the committee’s formal recommendation is set out at line 30:

We recommend that a husband be indictable for rape upon his wife whenever the act alleged to constitute the rape was committed while the husband and wife were living apart and not under the same roof notwithstanding that it was committed during the marriage.

Then the amendment comes in in 1976 and it is set out at the bottom of the page. In the second reading speech on the next page the Minister says:

In brief, this Bill contains new provisions relating to rape and unlawful sexual intercourse . . . repeals various obsolete and repetitive provisions . . . The presumption that marriage of itself denotes consent to sexual intercourse or an indecent assault is abolished.

Of course, what the Minister thinks the law is does not establish it, but it is a small piece to be added to the general election that in 1976 the responsible Minister certainly thought that the rule applied:

As a Government, we are committed to a policy of equal rights . . . we believe that all law which continues to treat a wife as the property of her husband, and marriage as a contract of ownership, should be abolished –

Then as the judgment goes on to detail, over the next few years, ending up with the Northern Territory in 1994, the reforms were introduced, but everywhere else in Australia they were introduced by 1991. Now, it is our submission that that is a useful indication of what the position was.

Now, in the R v L itself there are various references to the Court’s view of the situation. In the plurality judgment at page 390 – your Honours, it is volume 174, I think, tab 12 – starting at page 389 in the plurality judgment at the bottom of the page their Honours say:

And Clarence’s Case makes it clear that there was no unanimity among the judges a century after Hale wrote. In Reg. v. R. the Court of Appeal rejected any rule of irrevocable consent as “anachronistic and offensive”. Without endeavouring to resolve the development of the common law in this regard, it is appropriate for this Court to reject the existence of such a rule as now –

and we place great emphasis on the word “now” –

part of the common law of Australia.

We are conscious of the restraints upon the development of the common law underlying decisions such as State Government Insurance Commission v. Trigwell . . . But the situation here is that the respondent invites the Court to give its support to a proposition which, in the terms contended for, does not have the backing of the common law for which he contends. It must be acknowledged that there is support for the proposition in some non-binding judicial statements and in some learned writings tracing back to Hale. But that support has been seriously undermined by the qualifications introduced by the various decisions . . . In any event, even if the respondent could, by reference to compelling early authority, support the proposition . . . this Court would be justified in refusing to accept a notion that is so out of keeping with the view society now takes of the relationship between the parties to a marriage. The notion is out of keeping also with recent changes in the criminal law of this country –

Justice Brennan, as he then was, at page 402 says at the top of the page:

Irrespective of the validity of Hale’s reason for declaring that a husband could not be guilty as a principal in the first degree of rape of his wife, it appears that a substantive rule of the common law was established by his declaration.

He refers to the matter your Honour Justice Bell referred me to, Sir Samuel Griffith’s drafting of the Criminal Code:

The House of Lords has held recently in Reg. v. R. that “in modern times the supposed marital exception in rape forms no part of the law of England”. Their Lordships viewed this decision in the same way as Lord Lane C.J. had viewed it in the Court of Appeal (Criminal Division):

“This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

The next paragraph contains what, with respect to his Honour, seems to be a typographical error. His Honour says:

In my respectful opinion, the common law fiction has always been offensive to human dignity and incompatible with the legal status of a spouse. However, a mere judicial repeal of the section –

and that should be “the exception”. His Honour has referred to the exception twice in the two preceding paragraphs and there is no particular section he is referring to at that stage, and it does not make sense if it is a reference to a section. It seems to be a simple typographical error for “exception” and I invite your Honours to so construe it:

However, a mere judicial repeal of the –

exception –

would extend the liability for conviction of the crime of rape to cases which would be excluded . . . by s. 73(5) of the Criminal Law Consolidation Act.

What that refers to is the fact that when the law was changed in South Australia the marital exception was retained unless the matters referred to on the middle of page 403 were present, which are actual bodily harm, gross indecency, et cetera.

So what his Honour is pointing out is that if one merely repealed the exception one would expose husbands in relation to the period prior to the South Australian Act with a higher risk than after it because the limited abolition of the exception would not apply. So what his Honour is saying is that it would be wrong for that reason to have a mere judicial repeal of the exception. In any event, what is important is that at the top of page 402 his Honour clearly recognises it as a substantive rule of the common law. Justice Dawson left the matter open on page 405 where, having referred to Hale at the top of the page and the irrebuttable presumption, he says:

Upon that approach it is apparent that Hale’s view can no longer represent the common law, if it ever did.

So he is talking about from this point on and leaving open what the past was. Further down on that page it says:

That view was adopted by the House of Lords in Reg. v. R. and should be adopted here. It is, of course, unnecessary to express any opinion on the matter for the determination of this case. But I think that it is appropriate to say that, whatever may have been the position in the past, the institution of marriage in its present form provides no foundation for a presumption . . . There being no longer any foundation for the presumption, it becomes nothing more than a fiction which forms no part of the common law -

clearly meaning the existing and continuing common law, not the past common law. I return to the central proposition which is that once one accepts the maxim referred to in the registrar’s letter that when, because of changes in society or otherwise, the basis for a common law rule disappears, the rule falls with it. Clearly, that principle can only mean the rule falls as to the future. It cannot mean that the rule falls as to the past when, ex hypothesi, there were not those modern values and changes. It is a recognition of change pure and simple, and I will take your Honours to the cases such as Ha’s Case and so on which characterise this sort of activity.

In my respectful submission, whatever the general situation, the Court in the R v L was – whether one uses the word developing or changing or whatever it was doing – it was creating a common law situation different from that which previously existed.

FRENCH CJ: No. It was creating a common law proposition different from that which previously existed on the hypothesis that there was a pre-existing common law rule, and that question was left open.

MR BENNETT: Yes, by some of the Justices and decided, certainly, by Justice Brennan. Of course it was not a question that was necessary for that case. That case was in 1991, which we put as being after the enlightenment.

GUMMOW J: What do you say about Bartlett v Bartlett [1933] HCA 53; (1933) 50 CLR 3 at 16? It is behind tab 4 in volume 1 of the materials. At the top of page 16 Sir Owen Dixon made it clear that a decree of restitution of conjugal rights did not require the resumption of sexual intercourse. How does that fit in with Sir Matthew Hale’s view of what comes from a matrimonial relationship?

MR BENNETT: The judges in that case dealt with the matter differently. There were four Justices and it is, in effect, two each way.

GUMMOW J: I know, but we are in a larger field of discourse. If Sir Owen Dixon said something it means a lot to me, so what is wrong with it?

MR BENNETT: It does, your Honour, and the simple proposition that a decree for restitution of conjugal rights did not order the wife to engage in sexual intercourse with the husband is clearly correct. But the case also - - -

GUMMOW J: But he could force himself upon her without raping her. Is that right?

MR BENNETT: I am sorry, your Honour.

GUMMOW J: But he could force himself upon her with immunity from the attachment of the criminal law of rape?

MR BENNETT: Not from the criminal law of assault, but from the criminal law of rape, yes.

GUMMOW J: Why the difference between assault and rape?

MR BENNETT: Because, your Honour, the nature of the implied matrimonial consent is different in relation to the act of intercourse and in relation to a physical violence and that has been so since, we would say, the time of Hale.

HAYNE J: It is bound up, is it, with the notion of - we have now long since discredited the notion, be it said, that there was, what, some capacity in a husband to physically chastise his wife?

MR BENNETT: Your Honour, that probably disappeared earlier, but - - -

HAYNE J: Well, Halsbury would have had it that it was never part of the law of England, but leave that debate out. That was a proposition that had long since gone, had it not, by the 19th century?

MR BENNETT: It also applied to servants and children.

HAYNE J: Well, I am concerned about the position as between husband and wife. It had long since gone by the 19th century, had it not?

MR BENNETT: Yes, it had.

HAYNE J: Why is the proposition that you advance that a man could force himself upon his wife so long as, other than the act of intercourse, there was no assault, stand with the going of the proposition about physical chastisement?

MR BENNETT: Well, your Honour, it is in a different category because of what was seen as the nature and purpose of marriage.

HAYNE J: A nature and purpose which you accept was not judicially enforced by at least the time of the decision in Bartlett v Bartlett. It was not judicially enforced because a decree of restitution did not compel intercourse.

MR BENNETT: No, but there were other consequences if a party to a marriage refused intercourse. There were other matrimonial consequences which some of the cases refer to and this case refers to the - - -

HAYNE J: The other consequences including that the marriage could be dissolved for failure to sufficiently comply with the decree, is that the proposition?

MR BENNETT: No, your Honour, it was more that if the wife refused intercourse and the husband as a result left she might be guilty of constructive desertion rather than him being guilty of desertion.

HAYNE J: Leading to a dissolution, or grounds for dissolution.

MR BENNETT: Yes.

HAYNE J: Something unknown in Hale’s day.

MR BENNETT: Yes. Your Honour, while I am on Bartlett I might just show your Honours what the other Justices said. Justice Evatt, at page 22, having gone through some of the cases said:

This analysis of some of the leading cases shows that it is not correct to assert that a deliberate and continued refusal of sexual intercourse can never be relied upon by the other spouse for the purpose of evidencing failure in the duty to “render conjugal rights.” On the contrary, such wilful refusal may in all the circumstances prove or tend to prove that one of the spouses is according merely nominal and not real adherence to the decree requiring restitution. It follows that persistent and wilful refusal of sexual intercourse cannot always be treated as an irrelevant part of the inquiry in these cases.

HAYNE J: The relevant inquiry being an inquiry directed ultimately to establishment of grounds for dissolution.

MR BENNETT: Yes, your Honour.

HAYNE J: On the footing that Justice Evatt identifies at page 23 by reference to the Book of Common Prayer, if we are to refer to that, the third stated purpose of marriage being:

“mutual society, help, and comfort . . . And it is difficult to see how, upon the assumption that all love and affection have disappeared, this fundamental purpose can be carried out.

Non constat, you say, the husband can still force himself upon the wife without criminal offence.

MR BENNETT: Well, it may be a criminal offence, your Honour, but not rape at that time. At page 23 in the passage that your Honour refers to, his Honour says at point 6:

In the marriage service, the woman promises to “obey him . . . The man’s promise is to “love her, comfort her, honour, and keep her in sickness and in health.” Revision or elision of some of the promises has been attempted, and, with or without authority, been made.

GUMMOW J: Well, this would be all very interesting in England, but there was never any State church in Australia.

MR BENNETT: No.

GUMMOW J: Unenlightened though this country was - - -

MR BENNETT: Yes. That material, your Honour, is more relevant to the attack on 1963 than to the other aspects. It is also worth noting that on page 18 his Honour, at the middle of the page, says:

Much of the present controversy has centred upon the question of sexual intercourse, the wife’s alleged refusal of it, and the husband’s supposed cruelty in relation to it.

Owing to the lack of definition of what duties are required to be rendered in obedience to a decree for restitution of “conjugal rights” and also to the fact that, in matters of sex, euphemism is preferred to plain language, many persons, the present respondent included, seem to regard “conjugal rights” as a mere synonym for sexual intercourse. The respondent appears to have acted upon such assumption, and to have considered, it not actually been advised, that, apart from the duties of such intercourse, she had no duties towards her husband.

It is precisely the opposite theory which many of the Courts have accepted, that the question of sexual intercourse is quite an irrelevant factor in deciding whether one spouse has refused to render conjugal rights to the other.

Justice Rich at page 9 says that he agrees with Justice Evatt and he adds:

a reference to the Scotch form of decree in an action of adherence, the material parts of which are as follows: “Ordains the defender to adhere to the pursuer, his wife, her society, fellowship, and company, and to cohabit, converse with, treat, cherish, and entertain her at bed and board, and otherwise as a married person should do to his wife . . . Such a decree was not specifically enforced –

but that was the form of the decree. I should also remind your Honours of what was said by Justice Denning in Kaslefsky v Kaslefsky [1951] P 38 which is at tab 28. This was a case where cruelty was alleged and one aspect of the cruelty alleged was refusal by the wife, and his Lordship said this at the middle of page 47:

This wife refused her husband sexual intercourse. If there were any ground for inferring that this was with an intention to inflict misery on him it would, I think, be cruelty. The wilful and unjustifiable refusal of sexual intercourse is destructive of marriage, more destructive, perhaps, than anything else. Just as normal sexual intercourse is the natural bond of marriage, so the wilful refusal of it causes a marriage to disintegrate. It gives rise to irritability and discord, to nervousness and manifestations of temper, and hence to the breakdown of the marriage.

Of course that statement today would not be made and would not be regarded as acceptable, but it is of significance that in 1950 it was made by a distinguished Law Lord in a judgment and in the English Court of Appeal. It makes it clear that a refusal of intercourse by the wife can, in some circumstances, amount to cruelty if it is done for the purpose of inflicting misery on the husband.

Now, I turn to the materials in relation to the second submission and the common law rule that we seek to create about changes in the common law. There was of course another common law rule which said that an act of state relates back to the preceding....and in 1483 at the Battle of Bosworth Field Henry Tudor challenged King Richard III and - - -

GUMMOW J: 1485.

MR BENNETT: Your Honour, I bow to your Honour’s superior knowledge of those matters. Yes, I think it was 1485 on thinking about it, but in any event, Henry was successful and the king was killed on the battlefield. The crown rolled under a mulberry bush and Henry of York was crowned as King Henry VII on the battlefield. Then it was claimed by the new king that his coronation related back to the previous midnight and therefore that the soldiers who had loyally defended their king were guilty of treason because Henry VII’s coronation went back by some hours to before the battle, and many of them were in fact executed.

That is not one of the common law’s proudest moments and this Court should take the opportunity of making it clear that no common law rule or change in the common law or development of the common law can have the effect of criminalising conduct which was not criminal at the time. We rely on the statements in R v L in support of that proposition, the references to the view society now takes and has become “anachronistic and offensive” and we would submit that to suggest that a developmental change in the common law can criminalise what was not criminal when it was done is anachronistic and offensive to modern thinking and would not be in accordance with the views society now takes. We should not allow another Bosworth Field to occur.

That is what is being suggested in this case where, because of a decision of this Court in 1991, it is said that conduct in 1963 which, on the argument I am putting, was not criminal at the time or was not relevantly criminal at the time, should be deemed to be criminalised and that we have in this case an 80-year old man can be charged with a rape almost 50 years ago. That, in our respectful submission, falls squarely within the words of “anachronistic and offensive” and “the view society now takes” and so on.

Indeed, when we sought to have the proceedings stayed because of its age as an abuse of process, one of the reasons given by Judge Herriman for not taking that course - and I will hand your Honours a copy of his Honour’s judgment. It is the judgment in which he ends up by stating this case for this Court or this case for the Full Court and ultimately in this Court - but one of the reasons why his Honour refused our application was that the prosecution cannot be blamed for the delay because at the time there was considerable doubt if the defendant would have been criminally liable for the conduct, would have been liable for the offence of rape in relation to the conduct.

So what we assert to have been the common law is one of the reasons why the normal remedy in this type of case where one has a ridiculously old offence of granting a stay of proceedings was not given because the dubious state of the common law explains why it could not have been brought earlier.

GUMMOW J: Is there any appellate process in train?

MR BENNETT: Your Honour, we could seek special leave and - - -

GUMMOW J: .....inviting that, but within the South Australian system is there any appellate process in - - -

MR BENNETT: I think there is a process by leave, your Honour, which was not available. But I can tell your Honours that if we are unsuccessful in this Court, it is our intention to make the same application again; there is no estoppel arising out of his Honour’s decision and we would rely on any finding against us in relation to what the law was at the time as rebutting the argument that was used against us that that explains the delay.

BELL J: But otherwise there would be no change of circumstance. Do I take it that his Honour rejected a contention that the delay of 50 years, or close to 50 years, made a fair trail impossible, as it were?

MR BENNETT: Yes, your Honour, that is we argued there. His Honour sets out some of the evidence that is no longer available and the difficulties of trying the issue of fact that would exist.

GUMMOW J: Mr Hinton might have an answer to this, but is there any procedure in South Australia whereby out of time there could be an application to the Court of Appeal in respect of these reasons of Judge Herriman?

MR BENNETT: Theoretically, yes, your Honour. Your Honours will note from the judgment of Justice Gray in the appeal book that his Honour gave us some encouragement in relation to making the fresh application. At page 57 of his Honour’s dissenting judgment, paragraph 172, the last paragraph he says:

It is to be observed that in the event that the common law presumption was not available to the defendant, much of the above discussion would be relevant to a consideration of any application for a permanent stay of the proceedings. The delay of nearly 50 years in the prosecution of the charges has deprived the defendant of an otherwise available defence, has denied the application of an earlier available statutory bar to proceedings and has given rise to the general prejudices that flow from an attempt to defend proceedings in circumstances of such a delay. No doubt these are matters that will be considered by the trial Judge in the event that he is invited to reconsider the stay application.

Your Honours, I have indicated we propose to act on that invitation and any encouragement your Honours can give us in that direction would be gratefully received.

HAYNE J: Does the primary judge’s reason for judgment proceed on the assumption that the statutory time power which existed in 1963, when altered in 2003, was no longer of consequence and no longer applied in respect of the events of 1963?

MR BENNETT: That was one of the matters, yes, your Honour. There is also, of course, the aspect referred to by Justice Brennan that we might not have the protections given in events occurring now in the South Australian amending legislation. The paragraph that I was referring to earlier is paragraph 14 in his Honour’s judgment where he says:

With respect to the [rape] complaints, I do not find it surprising that no complaint was made until after 2003 or, indeed, until now, not only because of time limitations but because the question of whether such a defence within a marriage was known to the law remains undetermined.

He then points out it was not until 2006 that the wife gave a “full account” of her allegations, which is 43 years after the event.

BELL J: Justice Gray at paragraph 170 refers to:

the conclusion that the common law presumption of consent –

either formed or did not form part of the law of South Australia in 1963. That seems to be the essential aspect of his reasoning on the question which was first raised with you and which defines the offence of rape. On another view it might be that the crime of rape did not embrace intercourse with a person who was one’s wife in 1963, albeit the reason for that did not depend wholly on things Lord Hale had said a couple of centuries earlier.

That is the view that is expressed in the first edition of Australian Criminal Law published by Professor Howard in 1965 where the suggestion is that the developments in England respecting recognition that separation might permit proceedings to be brought against a husband for rape were intended to undercut the Hale notion, but that test, widely used at the time, did not suggest other than that the crime was not committed of rape by a man of his wife. I raise the matter because it might be that Justice Gray is deciding it on, as it were, a narrower point.

MR BENNETT: Yes. The paragraph your Honour was referring to, I am sorry?

BELL J: It is 170. It is just there that his Honour is suggesting that the common law presumption of consent formed part of the law in 1963 or, alternatively, the other view is that it did not but he is putting the critical issue as the common law presumption of consent. What I am raising is that it may be that by 1963 the crime of rape could not be committed by a man against his wife, save in the circumstances that were identified as exceptions, but that the reason for that were the sorts of reasons that Professor Howard advanced in his text to do with the disinclination of the criminal law to intrude into the bedroom and that it was better for these matters to be dealt with by the Family Court by a woman obtaining orders for separation and the like.

MR BENNETT: Yes, but either way the same result followed.

BELL J: Yes.

MR BENNETT: Either way the prosecution would have failed in 1963 and, indeed, we ask rhetorically if one had attempted in 1963 to argue before this Court that the marital exemption was no longer part of the common law it is highly unlikely that the same conclusion would have been reached as was reached 28 years later in 1991. It was a different social environment, a different legislation on many issues. It simply would not have happened but that is something that has never been tested, of course.

Now, I should turn then to the cases that talk about the effect of retrospectivity. That, to some extent, involves analysing what the Court was doing in R v L. I have taken your Honours to the passages in that case showing your Honours how we put it. I should remind your Honours of the cases referred to in schedule 2 to our submissions. The starting point is Trigwell [1979] HCA 40; (1979) 142 CLR 617 at tab 9 in volume 1 of the book of materials. This was a case about the rule in Searle v Wallbank and the effect of its abolition. It was not a criminal case.

It is interesting to see how it was put by members of the Court in relation to the Court’s function when a common law rule was said to have become anachronistic. At page 627 in the judgment of Justice Gibbs, as he then was, at point 7 of the page his Honour says:

Although the rules of the common law develop as conditions change, a settled rule is not abrogated because the conditions in which it was formulated no longer exist. It is now fashionable to criticize the rule in Searle v. Wallbank as anachronistic, inconsistent with principle and unsuitable to modern conditions, but it is by no means obvious that it would be a reasonable and just course simply to abolish the rule. The question whether the rule should be altered, and if so how, is clearly one for legislatures concerned rather than for the courts.

Then, on page 633 in the middle of the page:

I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify what has been thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances.

That, in simple terms, is what we say the Court did in R v L. In Giannarelli v Wraith (1988) 165 CLR 543 which is at tab 11 at page 584 in the judgment of Justice Brennan, as he then was, at the top of the page he says:

If the relevant law of 1891 were statutory or affected by statute, reference to the statute book of 1891 would be required. But it seems to have been accepted in argument, and rightly, that the law governing the extent of a solicitor’s liability is entirely common law. A court is not ordinary concerned to apply to the resolution of a current case a proposition of common law plucked from a moment in history, though the court will often refer to the history of the common law in ascertaining a principle for contemporary application. In declaring and applying the common law to a current case, a court is bound by earlier decisions of courts above it . . . But when the court is not so bound, it may undertake its own inquiry into the common law and it may depart from earlier decisions. The doctrine of stare decisis requires no greater adherence to precedent, though curial policy may lead a court to adhere to earlier authority which is merely persuasive.

The declaratory theory of judicial precedent treats earlier decisions which are not binding merely as evidence of the common law from which a court may depart if it is satisfied that the decision is not a correct statement of contemporary common law.

We stress the word “contemporary”. He then refers to a case where Justice Isaacs said:

“A prior decision does not constitute the law, but is only a judicial declaration as to what the law is. The declaration, unless that of a superior tribunal, may be wrong –

et cetera. That was the view of Blackstone in his Commentaries:

In the view of a court sitting at the present time, earlier decisions which are not binding upon it do not necessarily represent the common law of the earlier time, though they record the perception of the common law which was then current. But if a court, when free to do so, perceives the common law to be different from what it was earlier perceived to be, effect is given to the later perception –

Then there is a reference to Trigwell:

It may be objected, of course –

This is the argument against us –

that the declaratory theory of judicial precedent embraces the fiction that the common law is an immutable body of doctrine existing from time immemorial, to be perceived by a judicial wisdom which proves to be ever more penetrating with the passing of the years. The reality is different: the common law is judge-made law, albeit made under the restraints of traditional judicial method. Neither the declaratory theory nor the positivist theory of judicial legislation is wholly satisfactory . . . The judges of today are aliens to the society of a hundred years ago and, unless the relevant earlier period has produced an applicable precedent of binding authority, a judge could hardly be translated back to the earlier time and, ignoring the experience of the intervening years, declare common law principles different form what the judge now considers the common law to be.

So there is a philosophical debate on this subject. In Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 which is cited against us at tab 15 of the volume – this is the passage which is normally relied on when people raise the spectre of prospective overruling – at the bottom of page 503 in the judgment of the plurality their Honours say this:

The Court was invited, if it should come to that conclusion, to overrule the franchise cases prospectively, leaving the authority of those cases unaffected for a period of twelve months. This Court has no power to overrule cases prospectively. A hallmark of the judicial process has long been the making of binding declarations of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power. Prospective overruling is thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law. This would be especially so where, as here, non-compliance with a properly impugned statute exposes a person to criminal prosecution.

This is a case, of course, that is the reverse of that where it is the change which exposes the person to criminal prosecution. The point there is concerned with the rights and obligations of the party before the court. Now, if L had been a criminal appeal – it was in fact a section 109 case involving different considerations, but we do not need to be troubled with that - the sanction would have been, in accordance with the declaratory theory of the common law, simply imposed on him. One then says well how does that work with the principle which I am propounding?

It can work in one of two ways. The first way is to say that what the court was doing when it developed the common law was to apply it to contemporary circumstances which include, on the hypothesis I am putting, the comparatively recent conduct of Mr L. In that sense, it would simply be saying that the common law now applies to him and to future people but the courts would not necessarily be saying that that is the rule as to the past – as to events in the distant past. An alternative way of dealing with it is to say that the effect on the individual litigant is a necessary exception for the principle I propound because of the function of the courts.

A third way of dealing with it, which would work conveniently in the present case, is to say this, that the correct resolution of this case might involve laying down two propositions. One is that the – contrary to our submissions that the law in 1963 was that, as the Court has declared it, to be in R v L, and the second proposition is that because that was not known prior to the particular decision, the principle for which we contend should be applied and his specific conduct should not be treated as criminal. He should be entitled to be acquitted.

In other words, the decision to acquit would be a two-step process - step one, all the elements establish your guilt; step two, but this procedural or precedential rule that a change in the common law does not operate retrospectively requires that you be acquitted. Now, if that is done, there is no exercise of non-judicial power. One is applying the law to the case. One is simply applying the law with an additional principle overlaid, that principle being of the law is applied as well. The two principles together produce the result, in accordance with law, that there is an acquittal.

That is a way in which one can justify not applying a change in the common law retrospectively but, nevertheless, not committing a breach of the principle laid down in Ha. In other words, one simply says, “There is a principle which results in your retrospective guilt. There is a principle which says that we do not criminalise retrospectively. Taking the two together, you are entitled to be acquitted.” It is not a refusal to apply the law, simply applying the law in two steps. That, of course, would have saved the soldiers who defended their king in 1485. That is the way we deal with Ha. The next case is In re Spectrum Plus Ltd [2005] UKHL 41; [2005] 2 AC 680. That is at tab 37.

GUMMOW J: Mr Bennett, we have interventions by several Attorneys-General relying on section 78A of the Judiciary Act, I think. Are you addressing a question of a constitutional nature as to the content of the judicial power under section 73 of the Constitution? I mention it because you are just coming to an English case now.

MR BENNETT: Only indirectly through Ha. The only constitutional element in the case is the argument against us that because of Ha the Court cannot treat the decision in R v L as being prospective only. That is, as I see it, the only constitutional argument. It is a side wind to an argument raised against us. It seems to have excited a number of States, and the Commonwealth, to come and make some non-constitutional submissions.

HAYNE J: The constitutional issue being whether this second step of the two-step process you urge is an exercise in judicial power. The first step, as I understand it, is the court says the common law rule is now is seen to be X. The second step you urge is that the court could go on to say that common law rule, identified as content X, should not be applied in this particular case or should not be applied in cases that what - the facts of which occurred before this event?

MR BENNETT: Yes, your Honour.

FRENCH CJ: Is that embraced by paragraph 2 of your notice on page 63?

MR BENNETT: Your Honour, it is a subset of paragraph 2. It is a lesser proposition.

FRENCH CJ: We do not have to worry about the rest of the subset, or the set?

MR BENNETT: No, your Honour. I have suggested a number of ways in which one can achieve the result that a change is prospective only.

FRENCH CJ: You are confining this to criminal law, are you?

MR BENNETT: Yes, your Honour.

FRENCH CJ: I think the theory of the operation of the change in the common law in Mabo, for example, was that the common law had always recognised the historical fiction perpetrated by Cooper v Stuart and it was, in effect, put to one side.

MR BENNETT: There were some earlier African cases, your Honour – West African cases.

FRENCH CJ: Yes.

MR BENNETT: Yes, that is so. That, again perhaps contrary to public perception, is probably not against a change in the common law of the type we are talking about here. Here one is saying social attitudes are changing, therefore we must change this old anachronistic rule. That is a very different thing - - -

FRENCH CJ: Community values have found their place in Justice Brennan’s judgment, I think, in Mabo.

MR BENNETT: Yes.

HAYNE J: We are back in sociological analysis rather than legal analysis are we not, Mr Bennett, but there we are, we have been there.

MR BENNETT: Your honour, what I wanted to say about Spectrum was to remind your Honours of the passage at paragraph 16 where – and this, of course, was a commercial case – he says that:

These two [prior] decisions illustrate the flexibility inherent in this country’s legal system. In passing, another instance of this flexibility can be noted. This illustrates how the House has been prepared to depart from a strict and narrow interpretation of the judiciary’s adjudicative role. From time to time situations occur where a point of law of general importance is raised by court proceedings but the outcome will have no practical effect in the particular case. The general principle is that the court will not entertain such proceedings. Nevertheless, when there is good reason for doing so, the House, in the cautious exercise of its discretion, may proceed to decide the point of law -

and refers to the Attorney General for Jersey v Holley where there was a conflict where there was a conflict between decisions of the Privy Council and the House of Lords about provocation. The Crown had indicated it was not going to proceed, in any event. That is a special aspect of it. Ultimately, the courts decide cases by applying the whole of the law to that and if the whole of the law were to include a principle, such as we propound, in criminal cases then the court could simply superimpose that principle on the cases and it might result in the particular case being decided in a different way but it would not mean that the court had not applied the law. The court would apply the law and then apply a second step to the interpolation so made.

Of course, all that is, in a sense, unnecessary if one analyses R v L as saying, as we do analyse it, that contemporary values in 1991 dictate a result because that is not inconsistent with contemporary values in 1963 being different and it is not, in that situation, a decision which would operate retrospectively. The decision itself, by its nature, is limited to what occurs at the time. The final matter I wanted to deal with very briefly - - -

BELL J: Just before you move from that, Mr Bennett, the difficulty, it seems to me, with that argument is that Justice Brennan did directly address the matter that is at the heart of this proceeding and it was his reason for not engaging in what he characterised at 402 of the report as “mere judicial repeal” but that is not the position taken in the plurality reasons where their Honours, although referring as you have noted to the rule being “anachronistic” and impliedly taking up all that you have put about changes in circumstances their Honours do go on to make what, on the face of it, seems to be a declaration of what the common law is. Do you accept that? This is at 389.

MR BENNETT: Is now, yes, your Honour, not always was.

BELL J: But all the authorities to which you have taken us and the court - where suggestions are firmly made about the need for caution in developing the common law it is for this very reason that it has consequences looking backwards as well as prospectively.

MR BENNETT: With respect, your Honour, it is more the problem of when is something a matter for legislature and when is it a matter for the courts which is what is discussed in cases like Dugan but, your Honour, the sentence at the bottom of page 389 expressly leaves it open. It says:

Without endeavouring to resolve the development of the common law in this regard, it is appropriate for this Court to reject the existence of such a rule as now part of the common law of Australia.

The Court is not saying it never was, it is leaving that open and we do not have to decide that, but it is saying what the situation is in 1991 and going forward. The same thing occurs on the following page at page 390 at point 4. The only remaining matter for me to deal with very briefly is the letter from the Registrar. That is dealt with, basically, in the 5.1 to 5.6 on page 2 of the outline of oral submissions. I have demonstrated to your Honours first of all that - - -

GUMMOW J: The word.....used there is in terms of legal reasoning, not some empathy about social values and that is what you are being invited to consider, a legal underpinning.....of Sir Matthew Hale’s reasoning, and you say you have done that.

MR BENNETT: Yes, your Honour. Whatever changes had occurred by 1991 that are relevant to the underpinning of his reasoning had not occurred or had occurred to a much lesser degree in 1963.

GUMMOW J: I say that because, for myself, I do not really accept what is said at 390 in R v L 174 CLR around about line 12 where it talks about views of society and so on.

MR BENNETT: Yes.

GUMMOW J: The question is whether the views of society have been expressed in particular changes to the law.

MR BENNETT: Your Honour, we have not invited the Court to overrule R v L.

GUMMOW J: That is just a dictum.

MR BENNETT: Yes. In a sense, it is part of the reasoning that leads to the conclusion. It is a conclusion, we say, that the common law should be changed. It is part of that process.

FRENCH CJ: Mr Bennett, this might be a convenient moment. Can I just say that for myself I would be assisted by some reference from somebody to the cases mentioned in the footnote to the passage from Sir Matthew Hale. Justice Field in Clarence said his statement was unsupported. I think that was repeated somewhere else. There does seem to be some reference back to a case involving a person impersonating a woman’s husband. Whether that meant that she was taken to have consented because she believed the impersonation I do not know but if that was some basis for a consent underpinning for his proposition, but in any event we will come back at 2 o’clock and that will - - -

MR BENNETT: Yes. May I just say one thing about what your Honour put to me? Your Honour, we would be very happy to accede to that request but there is, obviously, a practical difficulty in achieving it with library facilities that are here in the next hour.

FRENCH CJ: Yes.

MR BENNETT: I would seek leave to bring in a short submission answering your Honour’s question.

FRENCH CJ: Given the criticality of his statement – I mean, given the importance of his statement to the proposition about the common law, I would have thought somebody would be in a position to answer that question without further research. Anyway, we will adjourn until 2 o’clock.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

FRENCH CJ: Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, there are four matters which remain for me to deal with and I would expect not to take more than 10 minutes. The first matter is in relation to your Honour the Chief Justice’s question before lunch. If your Honours go to Hale at tab 59 of volume 2 of the book of materials. At page 629 your Honours will see footnote (f). It refers to the Cafus comitis Caftelhaven. That seems to have been the case of Lord Audley.

GUMMOW J: Yes, he had two peerages.

MR BENNETT: I am sorry?

GUMMOW J: He was an Irish peer as well as an English peer.

MR BENNETT: Yes, apparently. The rather complex looking footnote can be related to the letters and numbers at the head of the report your Honours have of Lord Audley. There does not seem to be anything else referred to. There is a footnote on the previous page, something called the Coronae, but I do not know how or what that would be. The other matters referred to are all set out in the body of the text and I have shown your Honours the significance of Lord Audley’s Case. It is accepted that the wife could be a competent witness and it accepted the exception which Hale picks up about the third party rape.

The second matter concerns the letter from the Registrar of 20 September. We do not dispute the correctness, relevance of the maxim cessante ratione legis cessat ipse lex, so I do not need to go to the cases referred to. What we dispute is the minor premise at the bottom of the page and there are a number of matters referred to there. The first is the competence of witnesses, and I have dealt with that in relation to Lord Audley and R v Jellyman, so that was not a factor. Indeed, the very fact that Hale quotes Lord Audley’s Case shows that he was aware that it was not a factor.

There does not seem to be any particular relevance in relation to the institution of prosecutions. There was a provision in Magna Carta that a man could not be arrested for murder on the complaint of a woman other than in relation to the murder of her husband, but that does not seem to have any relevance to this aspect of institution of prosecutions. The status of women, the consequences of marriage I have dealt with in my 1963/1991 table. I will not go back over that.

The decisions referred to in paragraphs 11 and 12 of the Commonwealth, they are these general propositions about self-help. The answer to that is that there is no general proposition in the law that one may not in some situations resort to self-help. In some situations one can and in some situations one cannot. Clearly, of course, in relation to the removal of a trespasser to land one can remove the trespasser using no more force than is reasonably necessary. The same applies to self-defence. The same, no doubt, applies to the recapturing of a chattel when someone steals a chattel.

The cases on imprisoning the wife are cases where there is a court order or an ability to seek a court order and clearly there is a different principle which says that one cannot use self-help in those cases. None of those seem particularly relevant or applicable here. The question is, does the principle apply or not and the Commonwealth’s cases on that subject are not particularly apposite.

I should also mention two matters which are referred to in our outline of oral submissions. In paragraph 5.4 we make the point about the recommendations of the Mitchell Committee and their acceptance and the decisions of the Code States and all those, of course, are between 1963 and 1991. In relation to – this is 5.6 – the suggested “unity” of husband and wife, we commend to your Honours their article by Professor Glanville Williams “The Legal Unity of Husband and Wife” (1947) 10 MLR 16. I think that is in the volume of materials. That really demonstrates that there is no general doctrine of that nature. If there were, one could never be guilty of the murder of one’s spouse, all sorts of absurdities which would flow from taking the doctrine too literally. We submit that that really had no part in this type of situation. It would apply equally, of course, if it were an absolute principle to assault. So I would submit the Court does not need to trouble itself with this issue about husband and wife being one person, as is suggested by a passage in Genesis.

Now, the third thing I need to do very briefly is just remind your Honours of three cases. The first case which I indicated that I would go to, but never did, is Synge v Synge [1900] P 180 and it is at tab 24. These were claims and cross-claims for desertion and it was a case where the wife had refused intercourse and that was one of the factors. In the judgment of the President at page 194, he says at the top of the page:

It cannot, I think, possibly be contended that consent to the ordinary rights of a husband does not fall within the marital duties of a wife.

There are a few euphemisms in that sentence that shows the attitude very clearly then. On the next page, page 195 his Lordship says this and this is almost exactly point 5 of the page after the reference to Duplany v Duplany:

If, then, there is no authority compelling me to decide that a husband in declining to live with a wife who refuses him the rights of a husband has no reasonable cause for so acting, I will not so hold. I cannot think that any husband is bound continually to expose himself to such mortification and misery as is necessarily involved in the life to which the petitioner in this case, in the letter of August 24, 1892, invited the respondent.

The objects of married life, as expressed in the Marriage Service, are not the less true because they are the utterances of a more plain-spoken age than the present; and while human nature remains what it is, I think a husband has a right to decline to submit to a groundless demand of his wife that he should live with her as a husband only in name. Neither party to a marriage can, I think, insist on cohabitation unless she or he is willing to perform a marital duty inseparable from it . . .

The result, therefore, is that, in my opinion, the respondent did not desert the wife, but rather she deserted him; or, if he did desert her, that he did so with reasonable excuse within the meaning of the Act of 1857.

There was a case which I am duty bound to refer your Honours, although we submit that it is wrong. That is the decision in R v C in the United Kingdom. It is reported in [2004] 1 WLR 2098 and this was a case about the retrospectivity of the decision in R v R which was the English equivalent of R v L. At paragraph 22 in the judgment of Lord Justice Judge, his Lordship says:

We need not discuss either the “declaratory” theory of the effect of judicial decision relating to the development of the common law, nor whether by its decision, the House of Lords was retrospectively creating a new offence where none existed before. The stark fact is that R was convicted and S’s conviction in Scotland was approved. The decision applied to events that had already taken place, as well as those in the future.

There is really no reason given for that and we submit for all the reasons put in our argument that is simply wrong. I took your Honours earlier to the decision in Spectrum, which is tab 37. It is In re Spectrum Plus Ltd, but there is a part that I need to take your Honours to. It is [2005] UKHL 41; [2005] 2 AC 680. In paragraph 34 at page 698 Lord Nicholls makes a point which I made to your Honours this morning. He says this:

At one time the judicial function of overruling previous common law decisions was sought to be rationalised by the “declarartory” theory. Sir William Blackstone said that “if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law” . . . If “law” is given one of its several possible meanings, this theory is still valid when applied to cases where a previous decision is overruled as wrong when given. Most overruling occurs on this basis.

Then this is the passage I rely on –

These cases are to be contrasted with cases where the later decision represents a response to changes in social conditions and expectations. Then, on any view, the declaratory approach is inapt. In this context the declaratory approach has long been discarded. It is at odds with reality.

That was simply the point I made this morning that if you are changing the law because of changed circumstances ex hypothesi it does not apply to the past.....I also commend to your Honours the whole of page 699, which I will not read, where there is discussion about perspective overruling. Indeed, his Lordship cites Ha and says the House of Lords is in a similar position, but then goes on to say that there are cases where perspective overruling would be necessary to serve the underlying objective of the courts and so on. So, as I said, I am not asking - - -

GUMMOW J: This is in a country that does not have a distinct notion of judicial power.

MR BENNETT: Yes, precisely.

GUMMOW J: Why should we be.....

MR BENNETT: Your Honour, I am not asking for a prospective overruling. I am simply showing your Honours what the position was. The important part of this case for our purpose is paragraph 34 and I have been through that.

GUMMOW J: Paragraph 34 has a question mark over it in my mind too, particularly the last three sentences.

MR BENNETT: Yes, your Honour. It is a question of what the court is doing when it applies the maxim to lay down the common law as to the future because of changes in social conditions.

GUMMOW J: Who perceives them? Are they perceived as a matter of evidence?

MR BENNETT: I am sorry?

GUMMOW J: Are they perceived as a species of constitutional fact? What are they?

MR BENNETT: Probably, your Honour, as to which, for most purposes when we take judicial notice, in any event, and one looks at things like legislation and other pronouncements of judges and so on, as I have been taking your Honours to. The final matter I need to deal with is the submission made in paragraph 4 of our outline of oral submissions, and that is this. Your Honours will recall – and I will not take your Honours back to it unless you wish me to – that section 73(3) of the Criminal Law Consolidation Act is the section which says that it is not an answer to rape that one is married to the victim.

Of course, the Interpretation Act of South Australia, like all other State and federal Interpretation Acts, has a provision against retrospectivity or presumption of non-retrospectivity. So putting those together, the new Act is, in our respectful submission, not retrospective and as a matter of legislative fact, what the Parliament has done is repeal the common law rule – of course it has power to do so far as South Australia is concerned – and do so in a way which is not retrospective, just in a way which is prospective because of the Interpretation Act.

Now, that, in our respectful submission, takes away from the courts the ability to declare or renounce on or develop the common law prior to the statute. The statute covers the field. What the situation was before is covered by the non-retrospectivity of the statute and for a court to change that would be an interference with the legislative purpose, and that it cannot do. In R v L, Justice Brennan hinted at this in the passage I took your Honours to before at page 402, the passage with the typographical error, where, having said that:

the common law fiction has always been offensive to human dignity and incompatible with the legal status of a spouse. However, a mere judicial repeal of the section would extend the liability for conviction –

to cases excluded by the Act. The section is set out on the next page at the relevant part. What his Honour is saying, in my respectful submission, is the same as our submission before, that once the legislature has spoken, it is not open to the court to change the position of South Australia in relation to the common law of rape and in relation to what was and what was not rape in 1963.

The other place where one finds a hint of this is in Attorney-General for Jersey v Holley [2005] UKPC 23; [2005] 2 AC 580 at page 593. This was one of these many cases in the line of cases where there were different views, your Honours recall, expressed by the House of Lords and the Privy Council about provocation. The relevant passage is in the report of the

Privy Council in paragraph 22 where, having referred to one of the cases on provocation, their Lordships say this:

This majority view, if their Lordships may respectfully say so, is one model which could be adopted in framing a law relating to provocation. But their Lordships consider there is one compelling, overriding reason why this view cannot be regarded as an accurate statement of English law. It is this. The law of homicide is a highly sensitive and highly controversial area of the criminal law.

As, I add, is the law of rape –

In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (“develop”) the common law and thereby depart from the law as declared by Parliament. However much the contrary is asserted, the majority view does represent a departure from the law as declared in section 3 of the Homicide Act 1957.

The same applies, we submit, where there is an attempt to change what the common law position was after the common law position has been codified. So for those additional reasons, the prosecution simply cannot succeed and the relevant paragraphs of the indictment on the charge of rape should be quashed.

FRENCH CJ: Mr Bennett, before you sit down, I should mention that, since you made reference to it, the footnote I was taxing you with in Hale appears, in fact, to be a footnote which was added by the editor of a subsequent edition from which my copy of the chapter has come, which is why I was rather puzzled about the reference to no citations. I am sorry for misleading you. Thank you.

MR BENNETT: I did not notice that either, your Honour. We are happy to adopt the reference to the footnote.

FRENCH CJ: Thank you. Yes, Mr Solicitor.

MR HINTON: If the Court pleases, can I start by perhaps answering a number of questions posed by the Bench earlier this morning with respect to the law of rape and, in particular, how the presumption contained in Sir Matthew Hale’s publication applies and, further, by reference to the elements of the offence of the law of rape. In 1963, section 48 of the Criminal Law Consolidation Act said it was an offence to rape. It did not provide the elements. Behind tab 59 - - -

KIEFEL J: More specifically it said any person convicted of rape is liable, and I take it from that, then, that it follows that the common law was to supply not only the elements of the offence but who may be convicted.

MR HINTON: Who was any person, yes, your Honour.

KIEFEL J: Was that always the case in preceding legislation?

MR HINTON: If memory serves me correctly, yes, it was.

KIEFEL J: It means any person convicted in those terms. What I had in mind was whether or not any earlier legislation by contrast ever referred to any person who commits the offence which might not allow the common law to supply both of the aspects.....

MR HINTON: As I understand it, the common law has always provided both aspects. When we look then at Sir Matthew Hale, tab 59, page 629, that first full paragraph, in my submission, it is important to observe that the exemption marked out relates to the issue of consent. It operates then on only one element of the offence of rape. The elements are to be found in a judgment of this Court in Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249. Can I take your Honours to that judgment. The elements are set out – it is, in effect, the judgment of the Court – at page 261 at point 9:

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 –

This case also deals with the question of deception, but for my purposes the point I wish to make is that the Hale presumption applies with respect to one element of the offence. It is also important to recognise that the offence itself at the time this enactment was.....was not sexual intercourse with the expanded definition as we know it today; it was per vaginam and per vaginam only.

In answer to some questions posed by your Honour the Chief Justice earlier this morning, what is an assault, how does violence figure in the offence of rape, can I draw your Honours’ attention again to Papadimitropoulos at page 255, the paragraph at point 3 commencing,“The modern history”. Violence is not an element. What is, in effect, the assault component of rape is the act of penetration. So one is consenting the construct, as Sir Matthew Hale said, to the act of penetration. Any unwanted touching beyond that is an assault and a separate offence according to the common law.

In answer again to your Honour the Chief Justice’s question, what is an assault, any unwanted touching amounts to an assault and more than that, being put in a position of an apprehension of immediate violence amounts to an assault. Sir Matthew’s presumption applies extremely narrowly. Then when we look at R v Jackson, in effect, as your Honour Justice Kiefel said this morning, in most practical cases you are always going to have a criminal offence committed by virtue of the necessity to restrain to - - -

KIEFEL J: Well, if there is resistance. What Sir Matthew Hale does not deal with is if there any resistance to the requirement of sexual intercourse by the husband and that leads to a question perhaps about coherence in the law.

MR HINTON: If your Honour pleases.

KIEFEL J: I notice that the report at [1957] HCA 74; 98 CLR 249 at page 261, although perhaps one should not read too much into it, at the second last line the Court refers to “the consent is [both] comprehending and actual” and, of course, we are concerned with a fictitious consent in this case, but their Honours – I am not sure whether we are reading too much into it to say their Honours comprehend the distinction from a fictional concern.

MR HINTON: Of course, this is not a case that deals with a marital exemption at all. I have purely taken your Honours to it for the purpose of showing exactly how the exemption, if it ever was the common law, and our submission is it never was, could possibly apply. So in answer to, again, the question of your Honour Justice Hayne, you probably once upon a time could have pleaded a demurrer, but in all likelihood it would have been a defence and you would have to prove the fact of marriage and in Sir Matthew Hale’s time that might not be an easy thing to do because, of course, you would not necessarily have a marriage certificate that you could bring to Court with you.

KIEFEL J: Is it a defence or an immunity from prosecution? It is called at different times immunity or privilege, which one would think mostly attributable either to a requirement to give evidence or to the ability to be prosecuted, but you say it would take effect as a defence, that is, you could be prosecuted but it would be a complete defence?

MR HINTON: That is the way we have put it, your Honour, because it takes the form of an irrebuttable presumption. The elements of the offence never change. They are as is stated by the Court in Papadimitropoulos, which is consistent with Sir Matthew Hale. What it does is it says the prosecutor can never ever prove to the standard the absence of consent. So it is an irrebuttable presumption and that, through its development, is the way that it has been dealt with because we see, particularly in the 20th century, the idea of court orders and separation agreements effective to the rebut the presumption. So we have the development, in effect, of a rule of evidence and, in my submission, that is important because when my learned friend says, well, you are now creating an offence or you are now including someone in the net of criminality who was not included before, true you are in one respect, but you are not creating an offence.

Long ago courts such as this, I think it was the House of Lords, gave up the power to create common law offences. What you are doing is being asked to remove a judge-made construct because, for legal reasons, not sociological, but by virtue of legal reasons, the reason for it has long since evaporated. So the construct, what was an irrebuttable presumption that became rebuttable, is now so lacking in foundation by 1963, in our submission, that it should be removed entirely. In actual fact, our primary submission is that that has already been done.

BELL J: Your submission carries with it that great criminal lawyers such as Sir James Fitzjames Stephen and Sir Samuel Griffith got it wrong.

MR HINTON: My submission carries with it, with respect to Sir James Fitzjames Stephen, that he changed his mind and we do not know why.

BELL J: Yes. So he gave the matter thought.

MR HINTON: Yes, your Honour, and with respect to Sir Samuel Griffith, like many others, has just accepted Sir Matthew Hale’s proposition.

BELL J: But this is the point, it is not a question if one looks at the elements of the offence as subject to codification in the draft code of Stephen or in the Griffith code, any element is that the person is not the accused’s wife. So that one can look back historically and see a reason informing that as being the notion that the wife could not withdraw her consent to intercourse that went with marriage. There may have been a number of reasons that informed the rule, but if it be the rule that the crime or rape could not be committed against one’s wife, the fact that the justification based on consent to intercourse had gone would not be sufficient for your purposes.

MR HINTON: Perhaps. It is a difficult analysis, with respect, to embark upon. It is tantamount to saying, well, murder is an offence where one person kills another. We all know, but I never hear a judge direct a jury, “Firstly, ladies and gentlemen, you must be satisfied that it was a person that was killed.” If we talk about element analysis by comparison to a code, we find ourselves in difficulties by virtue of the practicalities of the law. In my submission, it was a presumption and treated as such, particularly in the 20th century, by the English courts in developing those exceptions.

In our hand up oral submissions, the second point, primary point that we make is that R v L is decisive at this point. In our submission, it did declare the common law with respect to rape. In our submission, it is binding and it does resolve this case. We accept that the statements made by Justices Mason, Toohey and Deane and Dawson in the two separate judgments were obiter, but our submission is that they were serious considered dicta such that the District Court of South Australia and any court since the date of that decision presiding over a rape within marriage that occurred before the date of that judgment was not at liberty to ignore it. Can I take your Honours to R v L.

HAYNE J: Before you do that, remaining with Papadimitropoulos, what emerges from Papadimitropoulos, amongst other things, is, I think, that there is an increasingly discriminating treatment of the law of rape in circumstances of Papadimitropoulos in cases where consent was obtained by fraudulent means. In particular, if you go at 98 CLR between pages 256 through to 258 you find discussed the cases beginning with Barrow and Chief Justice Bovill at about point 8 on 256 where Chief Justice Bovill speaks of:

the class of cases which decide that, when consent is obtained by fraud, the act does not amount to rape.

Over to 258, where a contrast is drawn between that statement of Chief Justice Bovill, again at about point 8 or 9 of the page, that the note earlier referred by Sir James Fitzjames Stephen:

that where consent is obtained by fraud the act does not amount to rape.

Read as a whole, the reasoning of the Court in Papadimitropoulos might be understood as discountenance, the notion of reduction of the law of rape to a set of singular concrete rules. Yes, the core of it is there, carnal knowledge without consent, but the law, by the time of Papadimitropoulos in 1957, had adopted a rather more sophisticated and nuanced approach to a particular class of rape, rape or intercourse obtained through fraud or deception. Now, that may be understood as casting some light backwards on what to do with a rule cast in absolute terms of the kind dealt with by Hale.

MR HINTON: I am not, with respect, quite sure how far you could cast the light backwards in terms of.....the debate is with respect to act or identity, which or both potentially - - -

HAYNE J: But the common law of rape, the common law identification of what constituted rape was not set in stone at the time of Lord Hales’ writing.

MR HINTON: With respect, absolutely no doubt, and the question of consent and what you were consenting to, act or identity, are still being developed, as we see in Papadimitropoulos, yes.

HAYNE J: The questions of fraud are seen as bearing upon the question of consent, then notions of irrevocable consent constituted by engagement of marriage is again a subject for inquiry rather than a conclusion.

MR HINTON: Indeed, your Honour, and Lord Audley’s Case is another step in the evolutionary process where, of course, the exemption is confined only to the husband whom is the principal in all aspects. It does not extend to him aiding and abetting, despite being charged as principal, another. If I could take your Honours to R v L, tab 12 in the larger book, volume 1, and, in particular, commencing at page 386 of the judgment of the Chief Justice, Justices Deane and Toohey, starting at point 8 where their Honours make clear that having disposed of the inconsistency argument, the balance of what they are about to say is not necessary to determining the case. As I have said, we accept then that this, and what follows, is dicta.

At page 387, point 2, their Honours make the point that the notion of conjugal rights does not carry with it a continuing obligation to consent to intercourse. There is the reference to the Code States at point 5, but then at the conclusion at point 6 of that paragraph the observation that there is no authority in the non-Code States that addressed the question of any immunity, and it is cast in terms of an immunity here, on the part of a husband charged with raping his wife. Their Honours then refer to R v Clarence, which my learned friend, Mr Bennett, took your Honours through. They conclude that it does not command unanimity, or there is not unanimity of judgment with respect to Sir Mathew Hale’s proposition being the law. I refer to the other English decisions which again my learned friend took your Honours to, page 388 at point 8, primarily decisions of judges at first instance where there are now exceptions created. They conclude, point 9, page 388:

None of these decisions lends credence to the proposition that, by virtue of her marriage, a wife gives her consent to sexual intercourse with her husband, whatever the circumstances.

BELL J: But that is important, is it not, the reference “whatever the circumstances”? Rape simply involves an act of penile vaginal intercourse without consent, speaking of it in the what I will describe as old-fashioned and classic sense. So recognition that the law made provision in some circumstances admitting of prosecution for rape, notwithstanding that the parties were married, for example, in circumstances in which there had been a formal court order respecting separation, does not really come to grips with the nub of the problem. It is not a question of whatever circumstances. If your argument is right, then in 1963, a man who commenced having intercourse with his wife when she was asleep was committing a criminal offence punishable by life imprisonment.

MR HINTON: Yes, your Honour. Where their Honours refer to “whatever the circumstances”, they are picking up on the nature of the submission that is put in that case and that is that Sir Matthew Hale is absolute. It does not admit of exception and what their Honours were attempting to do was show, well, that never commanded acceptance in 1888, R v Clarence, nor has it subsequently.

BELL J: Accepting that, do I understand you to accept the proposition that I put to you a few moments ago that if your argument is right, then - - -

MR HINTON: Sexual intercourse without consent while she is asleep is rape, yes, your Honour, and in 1963 it was rape.

BELL J: It was rape.

MR HINTON: Yes, your Honour. Our submission is, despite many a trial judge accepting that Sir Matthew Hale stated what the law was, no one ever, until R v L and Her Majesty v S in Scotland and R v R in England, turned their mind to what actually the common law was. So our starting position is it never was the common law and our fallback position is, well, if it was – or our starting position is, if it ever was the common law, L has cured it. Our fallback position is, if L has not cured it, then it never was the common law and our fallback from there is, if L has not cured it and it was the common law, then as at 1963 changes in the status of women, legal changes, have had the effect that the basis for the immunity, the presumption, has evaporated such that by then it could not be and should be rejected by your Honours as ever having been or as being the law at that time. If the Court pleases.

CRENNAN J: When you talk about changes in the status of women, are you referring to changes, legal changes, which have had an effect on personal autonomy?

MR HINTON: Yes, your Honour, very much so. What we are primarily referring to is coverture, the removal of coverture and changes in divorce laws and we have attempted, for the sake of expediency, to do that by filing a document headed “Chronology of the Status of Women and the Law” with the Court in which we set out what the doctrine of coverture was at the time that Pollock and Maitland were writing. Perhaps if I were to take your Honours through that now.

GUMMOW J: Can we just look at Sir Matthew Hale yet again, page 628? It is tab 59 in volume 2.

MR HINTON: Yes, your Honour.

GUMMOW J: The author uses the phrase “against her will”, at the top of page 628. Then he says:

The essential words in an indictment of rape are rapuit & carnaliter cognovit –

knew her carnally and ravish, I think. Lower down the page he talks about ravishing. That has an indication of force about it, does it not, which is quite different from how they saw it in Papadimitropoulos as to consent? Do you see what I mean? There seemed to have been some shift, because in Papadimitropoulos you see, at 261, the last couple of lines there:

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.

MR HINTON: Perhaps – and I was never the best Latin speller – but perhaps the notion of “cognovit” could include an understanding of the nature of the act and the actor.

HAYNE J: Carnally know - surely it is carnally knew it, as in carnal knowledge, is it not, carnaliter cognovit?

GUMMOW J: Yes. It is the criminal - - -

MR HINTON: I would not want to rely upon my - - -

GUMMOW J: That is focused on the malefactor. All I am putting to you is that these people who have repeated Sir Matthew Hale as if it was some biblical statement have not sufficiently attended to precisely what was going on in what he was writing.

MR HINTON: I would adopt that, your Honour. That is a plank that we adopt because it becomes almost a mantra and - - -

HAYNE J: Because the legislature has always since, it seems, at least the Statute of Westminster The Second dealt with the punishment: see Hale again at 627 at about point 8:

But by the statute of Westm. 2. cap. 34.(d) the offence of rape is made felony, “ If a man ravish a married woman, dame, or damsel, where she neither assented before nor after –

et cetera. Do we not find historically that the legislature has always prescribed successively the punishment for rape?

MR HINTON: At that time in particular and, again, murder is the best example. It is one of the remaining current examples where the legislature still says it is an offence to murder, punishable by life imprisonment. It has always left to the common law the question what is it that amounts to a murder? So your Honour Justice Gummow’s observation, with respect, we would adopt. People have not turned their mind, possibly, to the intricacies of what Sir Matthew Hale has had in mind in drafting his work.

HAYNE J: Again, in Papadimitropoulos, go back to 255:

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 -

If we are going back to the common law and we are going back to the common law of the times before Hale, violently and felonially did ravish or did rape.

MR HINTON: 1936 - violence now is limited to the force necessary to affect penetration and no more. Anything else beyond that becomes a separate offence.

FRENCH CJ: So penetration without consent is not of itself an assault unless there is some – at common law, you say.

MR HINTON: It is, but then charging practice comes into it. It is two possible offences.

FRENCH CJ: Yes, I appreciate that, but I am just looking at the elements of - - -

MR HINTON: Yes, penetration without consent you could charge assault. Penetration without consent is rape as well. You would charge in practice, you would charge rape so that the greater of penalty by which it is punishable would be open to the judge and the appropriate penalty could be imposed. In this case your Honours may have picked up, possibly not, that assault occasioning actual bodily harm is charged in the alternative to the rape, because the rapes were effected violently beyond violence necessary to effect penetration.

GUMMOW J: What is said in Papadimitropoulos at 255 and following is the common law in Australia by 1957, but anyway.

MR HINTON: Yes, your Honour, and, in my submission, the common law in Australia in 1963.

GUMMOW J: That is my point.

MR HINTON: Yes, your Honour. I will just finish with L if I could, your Honours, and take you to the top of page 390. My learned friend suggests that the word “now” is to be read as if the Court was engaged in some forward-looking exercise of changing the common law. In my submission, that would be an inappropriate interpretation of what the joint reasons attempted to achieve, and I advance that submission for these reasons. Firstly, at the bottom of page 391, the very paragraph commencing, “We are conscious” going over to the top of page 390, tab 12 of volume 1.

FRENCH CJ: This is the bottom of 389 you are talking about, is it?

MR HINTON: Yes, sorry, your Honour, bottom of page 389 over to the top of 390 and, in particular, the citation of Trigwell, Osmond and Lamb v Cotogno and the observation that the court is aware, conscious of the restraints upon the development of the common law. The restraints are, or one important restraint is the fact that when we develop the common law it will have that retrospective effect. So it is very much in the minds of their Honours that what they are about to do will have a retrospective effect. It will - - -

GUMMOW J: But what that was about would have been assisted by close attention to Papadimitropoulos when it was given. We would not be having this debate - - -

MR HINTON: No, your Honour.

GUMMOW J: Because the Sir Matthew Hale statement is a response to a perception of the indictment as requiring violence and it is saying in a husband and wife situation you do not have to worry because the violence is conceded. Consent that the violence is conceded. Once you move away from the requirement of violence as an element.....in Papadimitropoulos you do not need Lord Hale because the train has gone off on another route around it.

MR HINTON: Agreed, your Honour. Hale is to be read that way as incorporating the notion of violence and not just what I have put to your Honour and that is the limited force necessary to effect penetration. Then it changes in 1957, I think it was, yes.

GUMMOW J: We do not need to get into a lather about Trigwell’s Case or anything else of that nature, it seems to me.

MR HINTON: In which case I will attempt to keep moving as quickly as I can.

GUMMOW J: Do not let me distract you.

MR HINTON: But my submission is, your Honour, that the joint reasons, in my submission, show by reference to those authorities that their Honours were aware that what they were about to do was to pronounce a proposition that had a backward-looking effect, a retrospective effect. It defies, in my submission, belief to expect that Justice Dawson did not think in the same manner, particularly as the dissentient on this point, even though not ultimately, Justice Brennan turns his mind, as your Honour Justice Bell pointed out, to the consequence of holding here that if Sir Matthew Hale’s proposition was ever the law, it now is no longer the law.

In my submission, it is quite clear that their Honours, all five of them, were well aware that the outcome of the majority position – the joint reasons, plus Justice Dawson – was that from the moment of the judgment in R v L the marital exemption would not apply, irrespective of when the right within marriage occurred. So, in my submission - - -

BELL J: That is not what they were looking at though, was it? Their Honours were looking at the proposition that the provisions of the South Australian Act, introduced in 1976 were inconsistent with the Family Law Act respecting consent to intercourse. They were not directing their mind to a proposition respecting the elements of the crime of rape at common law as that offence developed and was understood in the half century before they decided R v L.

MR HINTON: If your Honour pleases. At the bottom of 380 in the argument over to the top of 381 the Solicitor-General, my predecessor, specifically invites the Court to abandon the Hale proposition. So they are picking up on the argument that was put. I cannot say to your Honour that it is not dicta, it is. But our essential submission is it is seriously considered dicta, considered against the background of referring to those decisions about when it is appropriate to develop the common law. In my submission, the only inference open then is that their Honours were well aware and intended that hereafter it would be applied as the law. That, in our submission, is what the Chief Justice in this State has done in this case. It could, perhaps, have been a faster proposition if Papadimitropoulos had been cited and been part of the debate, but it was not.

GUMMOW J: It may have been insufficient to consider dicta in response to the limited submission put by your predecessor.

MR HINTON: But it could only be more forceful, had he referred to the authority we have with us today. So if your Honour Justice Bell pleases, we then submit that as seriously considered dicta -and they are not my words, they are taken from Farah Constructions v Say-Dee (2007) 230 CLR 379 and at paragraph [134], a decision of this Court concerning the rule in Barnes v Addy and whether or not it was open to the Court of Appeal in New South Wales to abandon the first limb of that rule, when a majority – only a majority – a majority of this Court in Consul Developments v DPC had considered that limb and decided that it was appropriate to be followed. This Court said the Court of Appeal was not limited to abandon seriously considered dicta.

That is where I get the words from and that is the position after L that the District Court in South Australia, the Supreme Court in South Australia, in fact all the courts in Australia applying the common law found themselves in. We also pray in aid an article written by your Honour Justice Heydon in the Oxford University Commonwealth Law Journal, a copy of which is in volume 2, I think, of the materials and, in particular, at pages 30 to 33 as to the binding effect, the authoritative effect of seriously considered dicta. It is the eminence of a court, your Honour says, that is to be taken into account, the degree of consensus that is to be considered, the fact that the matter is fully argued.

I take your Honour Justice Gummow’s point that Papadimitropoulos was not there, but otherwise the issue was fully argued and the professed intended effect of the judgment and again, I have taken your Honours to the references to Trigwell and Cotogno, to Justice Brennan’s dissent and, indeed, invited your Honours to infer that it would be pushing belief to expect that Justice Dawson did not understand what was going to be the consequence of his judgment.

As seriously considered dicta, in my submission, it was binding, it is binding, it resolves this case. There is no exemption. As of 1991 that applies to all rapes that occurred before and after, in which case, it applies to this case. My learned friend attempts to persuade your Honours that because they have perhaps framed their language in terms of “if it ever was it is no longer”, or “whatever may have been the past position, it is no longer”, it means that their Honours did not intend that their judgments had that backward-looking effect. In my submission, for the reasons given and largely the reference to Trigwell, Cotogno and Osmond that is a submission that should be rejected, with respect to him and again I refer to that dissent of Justice Brennan and the ground for it.

Further, of course, whilst there had been murmurings, perhaps, about the power to prospectively overrule it was never part of the argument in this case and if this Court in that case was suddenly to embark upon the process of prospectively overruling then one would have thought that that topic would receive some consideration, some detailed consideration, which it does not. In my submission then, for the reasons in our written submissions and as I put orally, R v L is binding and is decisive.

Can I turn to my learned friend’s argument about the 1976 amendments to the Criminal Law Consolidation Act? He concedes that they did not apply retrospectively. If they did not apply or did not have a retroactive application, then they had no application to the common law before the date of their operation and what was the common law before the date of their operation is a matter for this Court.

My learned friend prays in aid the authority of Attorney General v Holley. That is a case concerning provocation and, in particular, it is a case that concerns the second limb of provocation which deals with whether or not the ordinary person, confronted by the provocative act, would have acted in the same or similar manner to the accused. There has long been a debate about what are the traits of the ordinary person as part of that objective test?

Section 3 of the Homicide Act, to which their Honours refer – perhaps if I take your Honours to it. Attorney General v Holley is to be found at tab 36 and section 4 of the Homicide Act is to be found at paragraph 4. Section 3 of the UK Act, section 4 of the Jersey Act. Your Honours will note the fourth line of section 4, which concerns the second limb of provocation:

whether the provocation was enough to make a reasonable man –

The question in this case revisits what traits the jury is entitled to give the reasonable man as a part of the second limb of the test of provocation and the debate in this case is about whether or not a low standard of mental function as, indeed, the accused had as I recall, is a trait that the reasonable man can be given. Here the argument on one side is if you apply a standard that does not take into account the individual’s mental function, then you expect that individual to perform at a level that subjectively they could never meet.

There is then the – and it is an ongoing debate since R v Camplin about fairness and the reasonable man sharing more traits with the accused, than just age and sex. That is what is going on in this case. It is a matter of can you read that statement and the reference to a reasonable man, such that the traits of the individual, here a low mental function, can be credited to the reasonable man. The paragraph that my learned friend took your Honours to, paragraph 22, is then to be understood in the light of the statutory construction question.

So it is not a case about a later statute having the consequence, which has no retroactive effect, having the consequence that the court is constrained in determining what the common law is before the date of operation of the statute. That is this case. The 1976 amendments had no operation before the date on which they came into operation. They had no operation with respect to the rapes committed in March and April of 1963, the alleged rapes in this case. They do not then constrain this Court, in any way, from determining what the common law of Australia was in 1963.

BELL J: The consequence being that the 1976 amendments confined the offence relevantly?

MR HINTON: Yes, your Honour.

BELL J: Not an intended result, but you say the product of Parliament’s misunderstanding of the law?

MR HINTON: Yes, your Honour. Again, when one refers to the Mitchell Committee the product of..... Can I deal with my learned friend’s submission as to the principle which he says this Court should develop? As I understand it the principle is that this Court should not, in a criminal matter, change the common law where the effect of doing so would be to render someone liable to prosecution and punishment who otherwise would not be. This Court should not constrain itself. Its duty is to determine what the law is at any time in a matter that comes before it.

In R v L we saw that duty performed. We also saw it in a trilogy of cases, the self-defence cases: R v Howe, R v Viro, R v Zecevic. In R v Howe the debate is whether or not self-defence, common law self-defence in Australia should be the same as it is in England. It is determined that it should not be. In R v Viro the issue is revisited, but this time we are concerned with excessive self-defence and again it is decided that we should not adopt the same approach as they do in England, but we should remain on the same track as R v Howe, namely if it is excessive self-defence then you are guilty of manslaughter and not murder. It arises again in R v Zecevic not too many years later and again the Court concerns itself with self-defence. Each time the common law. Each time it is concerned with who ultimately will be in the net and who will not be.

BELL J: Informing the decision in Zecevic was a strongly held view that the Viro directions were unintelligible and that it was undesirable that judges be required to direct in a case as important as murder on directions that they reasonably understood the jury would not bother.

MR HINTON: Yes, your Honour, yes. But the effect of acceding to that submission is where once – the submission was, therefore, if you establish self-defence it is not manslaughter, it is not guilty. So the effect then is an adjustment of who falls within and who does not. The effect of maintaining – in Viro is that you catch a larger group of people than you would before. My point is that it is not as though your Honours are being asked to do this for the first time. It is a duty that your Honours, this Court, has always had and that trilogy of cases shows and the R v L, indeed, that it has long been discharged.

Indeed, Ha is another example where, by virtue of the understanding of Dennis Hotels and the operation of section 90, the States had organised their finances for a long time in a certain way. This Court was appraised of the rather significant consequences that overruling Dennis Hotels would have. In fact, part of the argument of Mr Spigelman, as he then was, was specifically that you should engage in prospective overruling because you need time. In fact, his submission was that if the Court was to overrule Dennis Hotels then it should give the States at least 12 months. That submission was rejected.

Indeed, his submission on prospective overruling entirely was rejected in that one paragraph in Ha that my learned friend took your Honours to. Here we have, in effect, just an alternate approach. Perhaps you might not be able to describe this prospective but it is certainly selective and it certainly takes your Honours to that second limb of my learned friend’s submission into the realms of the legislative because, in my submission, if you were to find step one, that the law in 1963 was as this Court determined in L, that is an exercise of judicial power. But if you go to step two and you then decide that it is not to apply to anyone else except this accused and those in the future, you begin to engage in the legislative.

Why does it apply to this one? My learned friend says, well, one theory is he becomes the sacrificial lamb. Where is the cut? Where is the point in time where it does apply? What if there is in South Australia, whilst Mr L’s case is being heard in Canberra, a man who raped his wife two days later. Mr L, on my learned friend’s approach, suffers the consequences but his neighbour three streets down, who allegedly raped his wife two days later, does not.

In my submission, the sorts of issue, the prospective overrule, and it is just prospective overruling, with the greatest respect to my learned friend, the sorts of issues that it gives rise to are legislative. For the reason that is provided in that paragraph in Ha that my learned friend took your Honours to, his submission should be rejected.

I then turn to the notice of contention, if I can, and I need, with respect, an application for an enlargement of time to 28 July 2011. We were out of time. The notice of contention - - -

FRENCH CJ: Is that opposed?

MR BENNETT: No, your Honour.

FRENCH CJ: Yes, you have that extension.

MR HINTON: If R v L is not binding, in our submission, this Court should declare that the marital exemption never formed part of the common law at all. Sir Mathew cited no authority for his proposition. As the joint reasons in L make clear, that proposition was penned in 1676, or I am sorry, before 1676 when Sir Matthew died and it is to be found in a chapter which he did not have the opportunity to review. Of course, that is a reference to the judgment of Lord Lane in R.

The authorities since Sir Matthew, as we have been through, more or less pay lip service to him. Some of the judgments subsequently say as your Honour Justice Gummow pointed out - they could be criticised for not paying close enough attention to exactly what Sir Matthew says. Indeed, in this country, some of the later authorities, Wozniak & Pendry, Brown, Sherrin could equally be criticised for not having a close enough look at Papadimitropoulos. So there is no authority - - -

BELL J: What in those decisions would be different had the Courts looked at Papadimitropoulos which was concerned with personation? If one goes back to what the common law was understood to be and one goes to Sir Fitzjames Stephen in the last three-quarters of the 19th century, his definition included that the consent not be obtained by personating the husband. There is nothing new about it. The law may well have – if there was at an early stage a requirement for force in addition to the force involved in penetration, it may well be that that had changed well before the time when Sir James Fitzjames Stephen understood he was expressing the common law in his draft code in the way in which he did.

MR HINTON: We have not undertaken that exercise. Of course, we get back to the notions of reasonable chastisement of a wife and the old rule of thumb, as it was, potentially.

BELL J: I am just querying the suggestion that a case about personation is relevant to an understanding of those decisions in Australian jurisdictions which assumed in the 20th century prior to L that a man could not rape his wife.

MR HINTON: It is a case about personation primarily. It also touches upon the degree of force and violence that is part of the offence of rape. If one were then to look at it and construe it against Sir Matthew Hale and consider what the degree of force Sir Matthew Hale had in mind was, then you may, as Justice Gummow has highlighted, have a significant difference such that Papadimitropoulos has the effect of.....

But my quick points are, no authority - whatever authority there is does not decide the point. When we get to R v Clarence, there is no unanimity. When we get to R v Jackson, which we deal with in our outline, you will find that the husband cannot assault. You begin to see, in effect, no coherent picture. If he cannot detain her or he cannot imprison her and he cannot force himself upon her and detention would amount to ill usage and a court would permit separation, then the notion of dominion is gone.

Yet, Sir Matthew Hale seems to base his proposition on two possible sources: feudal notions of dominion and he being the lord or, alternately, religious notions of the two becoming one and yet, he, again, is given the primary – the position of primacy. The foundation that the two become one, the feudal notions of him being the lord are eroded by the time of R v Clarence. Hence, one finds some – I think it is three years later in R v Jackson - the sorts of language that I think your Honour Justice Gummow referred to or the language of Lord Halsbury.

Can I move then quickly to the question of if the marital exemption was part of the common law of Australia and if it is not resolved by R v L to our submission that as at 1963 this Court can declare that it ceased to be part of the common law. I will not take your Honours to Trigwell or Trident or Miliangos v Frank (Textiles). They are authorities that my learned friend has touched upon and are in our outline that demonstrate that this Court has the power to alter the common law and to alter it significantly, where the basis for it in contemporary society or the basis for what was thought to be the common law, no longer exists.

Equally, I will not take your Honours to the authorities on the maxim that is referred to in the registrar’s letter. Can I point out, though, that Brown v Holloway [1909] HCA 79; (1999) 10 CLR 89 could be considered an example of the application of that maxim. That was the case dealing with the effect of the Married Women’s Property Act upon proceedings instituted against a wife and the necessity of joining the husband to the proceedings.

The effect of the Married Women’s Property Act was such that there no longer had been – not tenancies in common, what is that expression? The effect of it in any event was that now husband and wife held separate estates. As they held separate estates any action against her could be enforced against her estate. As their estates were not one as once upon a time they were, there was no longer the need to join him to the proceedings because, of course, judgment could be enforced against him.

It is, then, an example, in my submission, of the application of the ratio in that – not the ratio, the maxim, in that the effect of the Married Women’s Property Act 1882 has been that the prior common law derived from the notion of coverture, that wherever you sue a wife you must join the husband, ceased to exist. It had evaporated.

Can I take your Honours then to our chronology and what we have attempted to do in it is to show, hopefully, and to give your Honours the various references, the changes since before the time that Sir Matthew Hale wrote through to the current day – not to the current day, through to 1963 in the status of women, concentrating on matters of law and not sociological matters.

In 1962, Dame Roma Mitchell became a QC. She was admitted – she could be admitted and a woman could be admitted to the Supreme Court of South Australia since 1911. Dame Roma Mitchell, in 1962, was what one would have called a feme sole but by 1962, all women, even if they were married, were feme soles in that the incapacity that attached to feme covert upon marriage no longer existed.

The incapacities we have set out on page 2 we have drawn them from Pollock and Maitland writing as to the law between 1239 and 1307. The effect of marriage was that the husband has an estate in her land. He can alienate it without her consent, but he cannot confer an estate for any longer than the marriage. He could not alienate greater than two-thirds of his own land as upon his death she had an interest in one-third.

FRENCH CJ: I think the point you are making is the evolution rather than the detail at a particular time.

MR HINTON: Yes, your Honour. I do not intend to take your Honours to every incident. Over the page we cite Manby v Scott (1663), a statement again of the effect of coverture, the legal incapacities upon the married woman. There is a comparison, the position of a feme sole who own their own property, real and personal could sue in their own name, could make contracts, could make a will. 1631, your Honours will note that we have inserted Lord Audley’s Case, but at the same time we attempt to deal with many of the issues in here that arise from the letter written by the registrar.

Now, 1765, on page 5, Sir William Blackstone refers here to the husband and wife being the “one body”. There we have the biblical notion. Pollock and Maitland said, well, in some respects it is feudal, in other respects the explanation is biblical, but neither is necessarily satisfactory as you swap to the evolution of the law.

At page 7, at the top of the page, 1864, the authority of Capel v Powell. We still had the effects at this time of coverture. Before that time there has been some change, but we begin to see a very definite change thereafter. In 1858 in this State the power to grant decrees of separation was given to the Supreme Court of South Australia. You could go to the local magistrate for judicial separation upon desertion by your husband.

We do for a long time have a double standard with respect to divorce as we have described it in this document, the double standard being it was sufficient for the husband to prove adultery whereas the wife had to prove more. Of course, by the time we get to the divorce Acts, in the earlier stages of the 20th century, that double standard is removed.

In this State in 1883, page 8, the Married Women’s Property Act, we see the effects ultimately of coverture removed and the married woman returned, in effect, to the same position as the feme sole. That Act is to be found behind tab 50 in volume 2 and if I could take your Honours quickly to it. It is a very brief Act - section 1(2). When compared to the notion of coverture, one can see that it in effect dismantles it entirely - capable of owning property, capable of contracting, capable of being sued in tort:

in all respects as if she were a feme sole, and her husband need not be joined –

We have, in effect, the separation of the States. Interweaved in our table we have added the wife’s rights to custody of the children.

GUMMOW J: Have you been referring to the statute of 1884 in South Australia?

MR HINTON: Yes, your Honour, tab 50, yes. Section 1(2), in particular, reverses the effect of coverture.

GUMMOW J: Well, the real bite in the section is the last six or so words, “without the intervention of any trustee”.

MR HINTON: Yes, your Honour.

GUMMOW J: Even in the time of Sir Matthew Hale there could be trusts under which women had rights of property, right. The force of section 1(1) of the 1884 statute of South Australia is to say what was true in equity is now true generally without a trustee, you see.

MR HINTON: I take your Honour’s point, yes, your Honour.

GUMMOW J: That is what they are saying.

MR HINTON: They are saying that and the effect of that is that the doctrine of coverture which attached to the married woman is now, in effect, exploded; it is gone.

CRENNAN J: What are the common law effects of coverture? Equity recognised and developed a separate property doctrine which was manifested in all sorts of ways.

MR HINTON: I was about to make a submission with respect to custody - you see that with respect to custody, too. The child always went with the father. However, in equity you could get access. But ultimately we find in the Matrimonial Causes Amendment Acts that suddenly there is a right to custody, you can go to court and a woman can now get custody, all this well before 1963.

The point ultimately of the table, the chronology, is that the two rationales that are identified as underpinning the proposition to be found - Sir Matthew Hale’s proposition, are that the irrevocable consent is the product of either his dominion by virtue of feudal notions over her, or the two becoming one. By the time we hit the early 20th century marriage can now be undone, separation can now be effected by going to a secular court. There are separate estates. There is a remedy for custody over children. The married woman, formerly feme covert, is now for all intents and purposes, feme sole.

HAYNE J: That description of the history, beginning as it does with the attribution of certain reasons to Hale may be, I think, attributing too much to Hale. Can I take you back to this? If we are going to pore over the text of Hale we need to pore over all of the text of Hale. First, we observe that the chapter in which this appears concerns the handling of felonies by Act of Parliament - see that at page 626. Second, we observe that the treatment that appears from 627 onwards focuses largely, I do not say entirely, on the subject of statutes.

The definition of “rape” given at 628 does not contain as an element of the offence what is later introduced by Stephen and other authors as the qualification “not being the wife of the accused”. A possible point of view is that the injection of that qualification to the elements is a gloss said to be based on Hale that is not warranted, for if one looks at the definition of “rape” at 628 it is “against her will”.

We then see on the balance of 628 over onto 629 assumptions and presumptions about the matter of consent, particularly at the foot of 628 where he deals with the couple living in what now would be described as a de facto relationship. He says:

But this is no exception at this day –

that is, existence of the de facto relationship is no exception -

it may be evidence of an assent, but it is not necessary that it should be so, for the woman may forsake that unlawful course of life.

Then we get this statement upon which everybody fixes in four lines - that “the husband cannot be guilty of rape” - and from there we go on to discuss the case of forcible marriage, and we discuss the case of forcible marriage by reference to the way in which the statute solves it – the statute 3 H 7 cap 2, see page 730 - is it not? No, it is 730, it is not 630. Do the pages in fact run on? I think though “only marriage de facto was an impediment of its punishment”.

MR HINTON: Your Honours, we are told that is an error in the text.

HAYNE J: Then we do not run on.

GUMMOW J: Why give us bits? Give us the whole text. Do not give us bits.

MR HINTON: If your Honour pleases, it is an error in the text. That is actually 630.

CRENNAN J: It is.

MR HINTON: Your Honour is right.

HAYNE J: I think it may be a run on. There are various editions about. Can we possibly get hold of a singular text?

MR HINTON: We have it here. It is an error in the text, your Honour. It goes 629, 730, 731, 632. We have the volume - - -

HAYNE J: Well, we have American editions, we have English editions. We are doing well, Mr Solicitor, we are doing extremely well.

MR HINTON: We had this brown, plain-coloured edition which has an error in the text, if your Honour pleases.

HAYNE J: Anything in plain wrappers is of doubtful authenticity, Mr Solicitor.

FRENCH CJ: The Americans got it right anyway; they put 630 on it.

MR HINTON: But, your Honour is right, it does run on. But we fixed on the ecclesiastical law of course and one point that points to it of course is that reference to the fact that what we would call the de facto may forsake that unlawful course.

HAYNE J: But be that as it may, and I hope ultimately we might get to a singular accurate text, is not the proposition which Sir Matthew Hale is exploring a proposition of a kind later reflected in the Victorian decision of Bourke [1915] ArgusLawRp 44; [1915] VLR 289, particularly at 296, where Bourke speaks in terms of it being impossible to conclude that the connection was without consent unless there was force or fraud. That is, the court was looking at the practical level on how do you determine that the act of intercourse occurred without consent absent force or fraud? Those ideas, that is, the ideas implicit in the notion expressed by Hale in the simple terms:

Rape is the carnal knowledge of any woman above the age of ten years against her will –

is the idea that is developed and examined over the years up to and including Papadimitropoulos about consent by fraud, fraud being a notion injected into the law of rape at a later stage in its development. Now, a question is whether introducing the element that the victim of rape not be the wife of the accused, first, is not a gloss on the understanding of the common law as it was expressed by Hale and, second, a gloss that is impermissible, having regard to what Hale was doing - he was examining statutes - and a single word answer will do to that one way or the other, Mr Solicitor, I am sure.

MR HINTON: Unfortunately, none of us at the Bar table have looked at the statute. Your Honour is right, we have latched onto that one paragraph and we have not looked at it in the more general context. It may well be, your Honour says, that when one looks at the statute we see a different picture emerge.

CRENNAN J: If you look at page 632, the third last page in, and it is opposite 731, at about the midpoint of the page, you have set out there the ingredients that the indictment ought to have in a reference to a statute.

MR HINTON: Yes, and a second statute.

CRENNAN J: Yes. I think 730 in your version is just a misprint for 630.

HAYNE J: The necessity for the allegation of “rapuit” is identified in the second paragraph on 628. It is not enough to allege:

carnaliter cognovit, nor any other circumlocution without the word rapuit –

that is, forcible connection.

MR HINTON: The one word is yes, your Honour.

HAYNE J: Extremely helpful, Mr Solicitor.

MR HINTON: I apologise to your Honour, we have not read it in that way. We have not come armed with the statutes - - -

HAYNE J: Do not take what I said to heart, Mr Solicitor.

MR HINTON: But, undoubtedly, what we have is a development, and an ongoing development, against the background of the law of marriage and the status of women and our submission is that that valid by 1963 is such that if it ever was the law, the foundation for it has long since evaporated. This Court can comfortably then, in our submission, conclude if L does not decide the case that in 1963 Sir Matthew Hale’s exemption was no longer part of the common law - - -

BELL J: Just coming back to L for a moment, can I inquire - am I right in my understanding that at the time L was decided, the Code States maintained as a definition of the “offence of rape” that it be carnal knowledge of a woman, not the accused wife, or words to that effect, and the common law States had all legislated to do away with the immunity, if you want to call it that – I am sorry, I think that Code States too had, by that stage, done away, so one has the Code States had altered their definition of “rape” by 1991, and the common law States had all moved to modify the previous understanding of the legislatures in all the States and Territories that a man could not rape his wife.

MR HINTON: As I understand it, that is right, your Honour.

BELL J: So whatever it was the Court was doing in L, apart from deciding the issue that was before it respecting the constitutional argument, as the result of statute law there was not a jurisdiction in Australia which preserved any rule, if there ever was a rule, that a man could not rape his wife. Is that the position?

MR HINTON: Yes, with a slight qualification because, of course, the statutes operated from a certain point in time, so it was not as though prior to the date of their operation there was a vacuum. In the common law States, it was the common law that applied. That is this case.

BELL J: Your contention is that the plurality in L were developing the common law so that in relation to the prosecution of persons in offences committed some years earlier that exemption or immunity, however you characterise it, would not apply. Is that the essence of it?

MR HINTON: What was occurring in L was that South Australia submitted that there could be no inconsistency because it was never part of the common law that you had these rights. That limb of South Australia’s argument did not have to be taken up, because the other limb, just a matter of construing the two statutes, was sufficient to decide the inconsistency question. No one turned their minds so much to whether or not people would be prosecuted.

You could not walk away from the fact that amongst their Honours it would have been fair to conclude that they thought, knowing the legislative changes around the country, that the chances of somebody being affected by this decision are not that great. You could not say that they thought that there would be a huge number of people immediately liable for prosecution for rape, but clearly, that was a factor, for the reasons I have given, that they were aware of, hence the references to Trigwell, Cotogno, hence Justice Brennan decides that he in that respect will dissent.

Our submission then is by reference to the material in our chronology the common law can either be developed in the same way that the High Court of Justiciary did in S v H M Advocate, developed by this Court saying we have now got to the point where the whole purpose for this presumption in 1963 has evaporated and, therefore, it having no purpose any more, it is no longer part of the common law or, alternatively, the court is in a position where it can say that purpose ceasing to exist it is no longer part of the common law.

KIEFEL J: Mr Solicitor, you refer to the Matrimonial Causes Act 1959 in your chronology. I said to Mr Bennett this morning that it appeared that the ground of cruelty for a petition for divorce under the Act for a decree nisi might be made out if the husband had raped the wife. That appears from a

reference in two spots in Benjafield, Australian Divorce Law and Practice at paragraph 338 citing Clarence’s Case as authority for that proposition. If that be right, it would seem to be rather difficult to maintain in 1959 that the law recognised the continuing obligation of a wife to submit herself to her husband.

MR HINTON: If the Court pleases, long before that, I think Bartlett’s Case and I think in 1910 the law recognised that in the conjugal rights cases, whilst there could be the order of the resumption of cohabitation, conjugal rights could not be enforced.

KIEFEL J: I suppose this is specifically addressed to the question of rape itself within marriage.

MR HINTON: Rape is grounds for divorce. It is definitely grounds for a court to intercede. I think there are lesser powers to bind him over, but not to breach the peace. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor.

MR GAGELER: Your Honours, in view of the time and course of argument, I will be considerably briefer than might be indicated in my two-page outline which your Honours have been provided with. The constitutional point has diminished to - - -

FRENCH CJ: That is why you are here, is it not?

MR GAGELER: Indeed. It has diminished to apparent triviality. It now has nothing to do with prospective overruling and it appears to us to be proceeding on a misunderstanding of the nature of the common law and of its relevance. When this Court is asked in 2011 to declare the content of the common law as at 1963 if, in declaring that content, it declares the content of the common law to be the same as that declared by the Court in 1991, the Court is not, to pick up Mr Bennett’s language in his outline of oral submissions at paragraph 2, criminalising conduct which was not criminal at the time of its commission in 1963.

What the Court is doing in the exercise of judicial power in 2011 is determining the content of the law as it stood in 1963 and what it does in 2011 is give to the 1991 case such weight as is appropriate as a matter of precedent. That weight is to be determined by an analysis of the reasons given by the Court in the 1991 case.

If one turns, your Honours, to the 1991 case itself, that is if you look at L and you look at page 384 to what was removed into the Court and if you look at pages 405 to 406 to the formal orders of the Court it becomes apparent that what was being determined by the Court was a question of section 109 inconsistency and as a step in the reasoning it was necessary to construe the State Act in question and parts of the Family Law Act.

What is said about the common law in the joint judgment beginning at page 386 at the bottom of the page and starting with the words “Although what has been said really disposes of the inconsistency argument” is obviously strictly dicta, albeit seriously considered dicta which demands to be followed by lower courts.

All of that was said in the context of dealing with argument or addressing argument as to what was contained with the expression “conjugal rights” that one saw in section 114(2) of the Family Law Act 1975, the point being made by reference to Bartlett v Bartlett at the top of page 387, that a husband has, as a consequence of a marriage, no conjugal right to sexual intercourse without the consent in fact of the wife. That was what was held in Bartlett v Bartlett in 1933 but relying on a line of authority that is traced back in that case, particularly in the judgment of Sir Owen Dixon to 1824.

It was that proposition that there was, by reason of the marriage, as a matter of law, no right to sexual intercourse that was seen, in our submission correctly, in the joint judgment at the top of page 387 to be a complete answer to the argument that was put. The notion of conjugal rights on page 387, point 4, carries with it a continuing obligation on the part of a spouse to consent to sexual intercourse.

Your Honours, we have in our submissions sought to deal with the common law position which we say was directly identified by Justice Brennan as proceeding from the time of Hale on an apparent misconception of the nature of the conjugal right given as a matter of law as a consequence of marriage. I do not wish to repeat those submissions, nor to rehearse his Honour’s judgment. If that is correct then the common law has always recognised a break in marriage and Hale’s role in those.....were wrong. Your Honours see that is our primary submission.

BELL J: Can I inquire, Mr Solicitor, how you deal, since you adopt Justice Brennan’s analysis, with his conclusion that, notwithstanding Sir Matthew Hale’s misapprehension as to relevant ecclesiastical law, substantive rule of the common law was established?

MR GAGELER: Yes. I deal with that as his Honour dealt with it at page 402, and that is to say, without reading what his Honour has said, although a substantive rule of the common law was established, it was established in the writings of text writers right up to the end of the 19th century, not by any considered judgment of a court.

Clarence’s Case can be analysed in very many ways, your Honour, but it is hard to see anything in it that can be said to be an endorsement of Hale and being founded on a misconception, not being supported by a considered judgment of the court and – we do not resile from this – the “offensive to human dignity”, his Honour’s language, at page 402, it should not now be accepted.

BELL J: His Honour, I think, was making a rather different point when he says a “mere judicial repeal” of the – and I think Mr Bennett is right in thinking that that is a typographical error and should be “exemption” – would extend liability, and so forth. In any event, the Commonwealth submission is one accepts Justice Brennan in the analysis of the error in Hale.

MR GAGELER: One accepts Justice Brennan as exposing the error in the assumption underlying Hale, and one treats Justice Brennan, in our submission – we have read Justice Brennan as saying that the common law, although declared in the past to be in accordance in Hale, was wrongly so declared at the time. So far as the cessante ratione principle is concerned, because it has been raised in a letter from the registrar, may I say simply this about it? It is a principle which, in our submission, simply reflects orthodox legal reasoning. It is no more than an aspect of the common law doctrine of precedent. It is an aspect of the common law doctrine of precedent that relates in any case a.....to its reason.

We have given your Honours a reference in our outline of submissions to Commissioner for Railways v Scott and I would ask your Honours to turn to it. It usefully demonstrates two senses in which that principle or maxim is sometimes used. It is sometimes used in a conceptual sense to say that a rule should not be extended beyond the reason for the rule, and it is sometimes used in a temporal sense to say that a rule which was a pre-existing rule should not be contended past a point in time.

What one sees in Commissioner for Railways v Scott is, in terms, Justice Fullagar in a dissenting judgment using the terminology in a temporal sense, Chief Justice Dixon, although not using the terminology, employing the concept – again, in a dissenting judgment – in a conceptual sense delivered the rule. But, however it is put, in our submission, it is appropriately stated in the joint judgment in Lamb v Cotogno, which your Honours do have, that is [1987] HCA 47; 164 CLR 1 at page 11. At the middle of the page, the maxim is referred to and it is said it:

cannot be read literally and “in its widest signification, is erroneous and misleading” . . . It goes no further than to reflect the process of

legal reasoning whereby previous authority may be distinguished or restricted in its operation. That is to say, it may afford a useful guide in the making of a permissible choice; it does not create the choice itself. The maxim “is not a licence to courts to change the law if it appears to them that the circumstances in which it was framed have changed” –

In R v L, in the joint judgment of three members of the Court at the top of page 390, in fact beginning with the last two lines at page 389, that limitation on the maxim is, in our respectful submission, appropriately acknowledged and Lamb v Cotogno is cited and, in our respectful submission, conscious of a comment that has already fallen from your Honour Justice Gummow, correctly applied in the passage that then follows. It is not simply said social circumstances have changed, therefore the reason for the rule falls away and with it the rule.

What is said in the passage that then follows is this is a rule that has always had a very weak backing. There had been qualifications to the rule that have been introduced by judgments over the past century, such as to call the rule itself into question, and it is a rule which as stated by Hale, as repeated through the centuries, contains within it a justification or reason which is out of step with society.

Their Honours may well have said the legal system, and what their Honours there said in 1991 at page 390, in our submission, was not directed simply to the rule now being anachronistic but was directed also to the rule having taken on the appearance of incoherence and being out of step with other elements of the legal system.....submission, a classic exercise in legal reasoning, and what their Honours there said about the position in 1991, in our submission, for the reasons we have given in our written submissions and which I will not develop given the time, was correct for the state of the law as at the 1890s at the latest. If the Court pleases.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr McKenna.

MR McKENNA: May it please the Court. I, too, will be very brief. We adopt the submissions of the respondent and the Commonwealth in this matter and rely upon our written submissions. In relation to the constitutional point that is said to arise, we really make three brief submissions designed to identify what it is and where there is a problem in this case.

The first submission is this, that insofar as this Court is exercising its role to consider afresh the applicable common law, applicable at the time of this alleged offence, it is open to this Court to find that some essential

premise of the reasoning in R v L that led to the result in 1991 was not present in 1963. It is open to the Court to do that. It is open for the Court to reach a different result as to the common law applicable in 1963 to the common law applicable in 1991. There is no constitutional difficulty with that. The difficulty is that the appellant cannot point to any event that occurred between 1963 and 1991 that would lead the Court to come to a different conclusion about the common law as was reached in R v L.

The second proposition is this, that it is open again to this Court to find that there is some general proposition of the criminal law that offences are to be defined not by the law as is later found but by the law as it appears to somebody at the time, some hypothetical observer. That can be done as an approach, a general approach, to criminal law or by way of defence. There is no constitutional difficulty that we can identify in that approach.

The difficulty for the appellant is that there is no such common law rule but the criminal law is to be applied by reference to what people understand the law to be at any particular time and not by the way the court ultimately finds it to be, otherwise there would be a doctrine of mistake of law, of criminal law. So for that reason there is no constitutional issue on that particular approach.

Where there is a problem though is in the Ha category of case. To be precise about the problem that arises, it arises where this Court in reviewing the matter as the law truly applies in 1963 comes to a particular view about the criminality of the conduct. Once that step has been taken it is not open to a party to invite the Court not to give effect to that finding in the order that the Court makes, and the problem there, the constitutional problem with it is that it is inviting the Court to proceed in a way that is directly inconsistent with the rights that have been determined. That is what involves creating new rights and that is where the problem in this case arises.

The short submission we make is that you cannot define your way out of that problem by inviting the court to adopt a rule. One cannot define one’s way out of the problem by saying that in dealing with remedies a rule is to be applied to avoid “criminalising” conduct that was not previously perceived to be criminal because that is just a circular argument, so for those reasons no constitutional question arises in this case. May it please the Court.

FRENCH CJ: Thank you, Mr McKenna. Yes, Mr Bennett.

MR BENNETT: Your Honours, my learned friend, the Solicitor for South Australia, referred to the seriously considered dicta in R v L. We do not dispute the significance of seriously considered dicta in decisions of this Court. Our point about L is expressed in one sentence, that as I went through it I demonstrated to the Court that all the Justices were at pains not to be asserting a proposition about what the common law was. They all used language of the type, if it ever was, if the rule was a rule, then it should no longer be, et cetera, and that is our point about the language of R v L. It is not a question of not following it. It is a question of following what it actually does decide. The references to Trigwell, Cotogno and Osmond are not concerned with retrospectivity. They are concerned with simply the question of the application of the maxim and when the court can and cannot change or develop the common law. They had nothing to do with any issue of retrospectivity.

Your Honour Justice Bell asked my learned friend a question about whether in any States there was still a pure common law position in 1991, and there was not, except the Northern Territory I think changed in 1994, which was.....but the point is not that. The point is that the issue in that case was inconsistency between two provisions and in determining if there was inconsistency the Court had to examine what assumptions were made in the language of the Commonwealth Act and in order to do that it was necessary to determine what the common law was. The common law also, of course, would have been revived if L had been successful in his submission that the section of the South Australian Act repealing the immunity was invalid. So for those reasons, it was relevant to look at the common law, but this was not a question of retrospectivity. It was a question simply of looking at the rights and liabilities as they existed at the time, which no doubt was shortly prior to 1991.

BELL J: I suppose, Mr Bennet, one consideration might be an answer to the submissions put by Queensland that there was no relevant change between 1963 and the decision in L, amongst other factors, the circumstance that every common law State had legislated to do away with the provision.

MR BENNETT: And in South Australia itself in the Mitchell Report. Your Honour, I simply refer to our schedule for all the differences between 1963 and 1991. Indeed, it is a matter of common knowledge and judicial notice that attitudes and legal attitudes were very, very different between those two years. My learned friend, the Solicitor for Queensland, puts rhetorically the question, at what point did some change occur, which led ultimately to the decision in R v L, and my answer is exactly the same as the answer given by counsel in the cases involving when citizens of the United Kingdom became aliens; it happened at some point in the osmosis of the development of relations between the two countries. Sometime between 1901 and the 1980s there are various points which can be identified as being more significant than others, but this Court has never said in all those

authorities what the precise point was. There are hints it may have been the Royal Style and Titles Act in one or two of the cases.

One can find that a change has occurred without being able to say when it occurs and, if your Honours will forgive me the old example given in one of the English cases, I am not able to identify the precise point at which day ends and night begins, but that does not prevent me saying with complete certainty that noon is day and midnight is night. The fact that I cannot draw a line does not mean that I cannot decide that a particular case is on one side or the other of that line, and it is the same here. I do not have to identify the precise moment at which the common law rule ceased to exist. What I do say is and all I say is it had occurred in 1991 and it had not occurred in 1963 and, of course, the parties are at issue on that. Those are my submissions, your Honours.

FRENCH CJ: Yes, thank you, Mr Bennett. The Court will reserve its decision. Court adjourns until 10.15 tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED