PGA v The Queen [2012] HCA 21

PGA v The Queen [2012] HCA 21

At common law in 1963, the immunity for a husband against prosecution for the rape of his wife existed in Australian law. Retrospective application of later developments to criminalise conduct previously exempt is not permissible. Therefore, the appellant could not be convicted for rape of his wife alleged to have occurred at that time.

Parties
Appellant: PGA; Respondent: The Queen; Intervener: Attorney-General for the State of South Australia; Intervener: Attorney-General of the Commonwealth; Intervener: Attorney-General of the State of Queensland
Jurisdiction
Australia
Judgment Date
30 May 2012
Procedural Posture
Criminal Appeal / Final Appeal From the Supreme Court of South Australia, High Court Judgment
Outcome
Appeal dismissed by majority; however, minority (Heydon, Bell JJ) would allow appeal.
Legal Topics
Rape, Marital Immunity, Common Law, Retrospective Application, Legislative Reform, Marital Consent
Criminal Law Rape Marital Immunity Common Law Retrospective Application Legislative Reform Marital Consent

Case Brief

Summary, issues, holding and outcome

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Parties

PGA

Appellant

The Queen

Respondent

Attorney-General for the State of South Australia

Intervener

Attorney-General of the Commonwealth

Intervener

Attorney-General of the State of Queensland

Intervener

Procedural Posture

Criminal Appeal / Final Appeal From the Supreme Court of South Australia, High Court Judgment

Legal Issues

  1. 1 Whether at common law in 1963 a husband was immune from prosecution for rape committed on his wife while lawfully married and cohabiting
  2. 2 Whether legislative or social changes prior to 1963 extinguished the marital rape immunity under Australian law
  3. 3 Whether retrospective prosecution for marital rape is permissible when conduct was not criminal at the time

Ratio Decidendi

At common law in 1963, the immunity for a husband against prosecution for the rape of his wife existed in Australian law. Retrospective application of later developments to criminalise conduct previously exempt is not permissible. Therefore, the appellant could not be convicted for rape of his wife alleged to have occurred at that time.

Court Disposition

Appeal dismissed by majority; however, minority (Heydon, Bell JJ) would allow appeal.

Orders

  • Appeal dismissed.