PGA v The Queen

[2011] HCATrans 267

[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 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 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 [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:

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