Criminal law – Rape - Husband's immunity from prosecution for rape of wife - Presumption of consent to intercourse by wife in marriage - Appellant charged in 2010 with two counts of rape contrary to s 48 of Criminal Law Consolidation Act 1935 (SA) - Alleged rapes committed in 1963 against then spouse - Legislative amendments enabled institution of proceedings despite lapse of time - Elements of offence of rape in 1963 supplied by common law - Whether in 1963 common law of Australia presumed consent by wife in marriage.
Precedent – Judicial method - Development of common law - Whether presumption of consent by wife in marriage was part of common law of Australia - Whether statement of common law in R v L (1991) 174 CLR 379 applied to events alleged to have occurred in 1963.
Words and phrases – "common law", "marital exemption", "marital immunity", "presumption of consent", "rape", "retrospective application".
Criminal Law Consolidation Act 1935 (SA) – s 48.
Matrimonial Causes Act 1857 (UK) (20 & 21 Vict c 85).
Judgment date
Case number
A15/2011
Before
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Catchwords