PGA v. The Queen

Lower Court Judgment

23/12/2010 Supreme Court of South Australia (Court of Criminal Appeal)
(Doyle CJ, Gray J, White J)

[2010] SASCFC 81

Catchwords

Criminal law — Offences against the person — Sexual offences — Rape and sexual assault — Consent — Presumption of — Applicant charged in 2010 with rape, allegedly committed in 1963, against then wife — In 1963, s 48 of Criminal Law Consolidation Act 1935 (SA) ("Act") made person convicted of rape guilty of felony — Where elements of offence of rape in 1963 supplied by common law — Where South Australian Parliament amended s 48 of Act in 1976 — Whether common law of Australia in 1963 permitted husband to be found guilty of rape of his wife — Whether irrebuttable presumption of consent to sexual intercourse between married couples in 1963 — Effect of R v L (1991) 174 CLR 379 ("R v L") on common law in 1963 — Whether 1976 amendment to Act precludes subsequent amendment of common law position prevailing in 1963.

Criminal law — Appeal and new trial — Procedure — South Australia — Case stated and reservation of question of law — Whether common law of Australia in 1963 permitted husband to be found guilty of rape of his wife — Whether applicant can, as a matter of law, be convicted of counts of rape of his wife in 1963 — Act, s 350(2)(b).

Practice and procedure — Precedents — Development of common law — Prospective overruling — Whether common law recognises retrospective imposition of criminal liability absent statutory requirement — Whether change in common law effected by R v L to be applied retrospectively — Whether 1976 amendment to Act precludes subsequent amendment of common law position prevailing in 1963 — Acts Interpretation Act 1915 (SA), s 16.

Short Particulars