HRNG ADELAIDE, 15 March 1993 #DATE 20:4:1993 Counsel for the appellant: Mr J J Doyle QC with

Mr S K Mcewen Counsel for the respondent: Mr M L Abbott QC with Mr M J Barnett Solicitors for the respondent: David Stokes and Associates

JUDGE1 KING CJ The questions of law referred to this Court arise out of the trial of the accused on an information containing five counts of rape, one of attempted rape, and one count of assault occasioning actual bodily harm. He pleaded guilty to the charge of assault occasioning actual bodily harm. He pleaded not guilty to the charges of rape and attempted rape and was tried by judge and jury in the Supreme Court. The trial resulted in his acquittal on all charges of rape and the charge of attempted rape. 2. The accused and the alleged victim were husband and wife. They married in October 1987 after a brief sexual relationship. The marriage was marred by the wife's sexual difficulties, apparently resulting from sexual abuse as a child and perhaps from other causes. She was able to engage in sexual intercourse happily at some times but not at others. 3. The wife's evidence was that the accused quite regularly forced himself upon her when she was unwilling, but that consensual sexual intercourse also occurred regularly. The forced sex was sometimes accompanied by blows. The incidents charged were three incidents involving penile penetration of the vagina, one incident of penetration of the vagina by a bottle, one incident of penile penetration of the anus and one incident of attempted fellatio. The accused gave evidence denying the alleged anal intercourse and the act with the bottle and denying the occurrence of any sexual act or attempt thereat against the will of the wife. When the wife was disinclined to engage in sexual intercourse, he would sometimes make an effort to "get her interested" by trying to cuddle her and to touch her. At times the effort would take the form of more boisterous playfulness which would result in being "astride of her, on my knees, on the bed, trying to play, trying to be playful with her." Sometimes the wife would respond and sometimes she "would flatly reject" the advances. He denied that he ever forced himself on her when she refused. 4. A case has been stated reserving two questions of law to the Full Court. The first question is as follows: "Was it an error in law to warn the jury of the danger of false allegations in a sexual case in the terms that were used, namely 'The charges which have been brought against Mr Johns are charges of a sexual nature. He has pleaded guilty to an assault. There is really in fact not much significance in the assault charge, but the charges which he is fighting and denying (and he has firmly denied them) are of a sexual nature and I must warn you to be especially careful in considering the evidence in a case where sexual allegations are made. Experience has taught the judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack. It is a very easy allegation to make. It is often very hard to contradict. Very few people are going to make up a story of a sexual attack in a hall with a lot of people so it usually concerns a place where there is only two people. It is hard to contradict and, of course, it can be of a very serious and distressing nature. In order to illustrate the fact that such allegations have been manufactured in the past, and just to say something of the effect that false allegations can have, I will tell you an anecdote. Many years ago now in England, a respectable married businessman, with children, got in a train in London to go to a station outside London. It was quite a trip and some of it was through countryside. And he sat alone in a compartment. It was one of those

that they call 'dogboxes'; there's a corridor down the side of the train, with various compartments leading off it. It was a quiet time and he sat in his compartment alone. After a station or two, he was still alone; a woman got in. She seemed to be a respectably-dressed woman. The train set off to go through a long patch of country side (sic) before the next station. The woman approached the man; sat near him; tore at her dress to expose her chest; knocked her head hard against the

wooden side of the train and scratched herself, thus producing bruising and bleeding; and pulled the communication cord. The train stopped; the guard came running. 'He tried to rape me' she said. The guard said he would have to call the police, and did. With the woman making this allegation, the police felt it their duty to charge the respectable businessman. So he was arrested, brought before a magistrate and released on bail. It was a shocking thing for him to have to face. It was too much for him. He took his own life. Soon after that, the same sort of incident happened on the same run, at the same spot, with the same woman. Further investigations showed that she was mentally deranged and it turned out that she had been doing this quite a bit. So you can see how careful we have to be about false allegations of rape. That is a dramatic story, of course, removed from the facts here, but it is just an illustration of the need to scrutinise all the evidence very, very carefully, bearing in mind all the time that it is possible for a woman to manufacture a false allegation and that it has happened." 5. This question raises issues as to the implications of s.341(5) of the Evidence Act 1989 which is as follows: "In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence." 6. It has been established by the judgments in Longman v R [1989] HCA 60; (1989) 168 CLR 79 in the High Court and R v Pahuja (1988) 49 SASR 191 that the abolition of the rule of practice requiring a corroboration warning in sexual cases, involves the abrogation of the reasons for the former rule of practice. It is now an error for a trial judge to caution a jury in terms which relate the warning to the generality of complainants in sexual cases as distinct from the complainant in the particular case. Moreover it is an error to indicate as reasons for such warning as is given, considerations said to be applicable to sexual complainants in general or sexual cases in general as distinct from considerations applicable to the particular complainant or the facts of the particular case. It is also an error to state that the warning is given as a matter of law or arises from the experience of the law or the courts. 7. There are many circumstances, however, in which it is proper to give the jury a warning as to the risks of convicting on uncorroborated evidence and, if it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case, a suitable warning is necessary; Longman v R supra per Brennan J, Dawson J and Toohey J at p.86. I repeat and emphasise what I said in R v Pahuja supra in the following passages: "Section 341(5) has the effect, in my opinion, of abolishing the rule of law or practice as to the corroboration warning in sexual cases. There is no longer a legal obligation on the judge to give any warning. He is left free, however, to give, in the performance of his function of providing guidance to the jury on matters of fact, any proper warning or caution in relation to the evidence of the alleged victim which the circumstances of the case appear to indicate." 8. 49 SASR 191 at p.197. "In many sexual cases prudence will dictate the giving of some appropriate caution or warning. If, since the enactment of s 34i(5), a judge cautions or warns the jury as to their approach to the evidence of an alleged victim of a sexual offence, he does so as part of his duty to provide guidance to the jury as to the evidence and the facts. He is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law. Subject to those considerations, he may give the jury a warning in the conventional terms or in any other terms which commend themselves to him." 9. At p.198. "Although I consider that s 341(5) has had the effect of abolishing the rule of law or practice relating to corroboration warnings in sexual cases, I cannot read into it some of the wider implications attributed to it. It does not confer upon the evidence of an alleged victim in a sexual case any particular legal status, nor inhibit the triers of the facts in a sexual case from weighing that evidence in the usual way, having in mind such aspects of human nature and behaviour as they consider to be material for that purpose. Acts of Parliament do not and do not purport to, change human nature. There are aspects of human nature and behaviour, such as sexual appetite, certain motives for making false complaints and proneness to certain types of fantasies, which have a peculiar bearing upon sexual cases and which may be important in certain factual situations. The ease of making an allegation and difficulty of refutation, often given as reasons for the former rule, are considerations not entirely confined to sexual cases, but are often nevertheless of considerable importance in such cases. The trial judge is not required to ignore such matters in charging the jury and may have a duty in certain cases to remind them of such considerations. It is to be remembered, however, that the weight to be attached to such considerations in any particular case is a matter for the jury, and that should be made clear to them." At p.199. It is proper where an accused person has given evidence in denial of the charge and there is no convincing corroboration of the alleged victim's allegation, to remind the jury that the case is, or may be if they find the supporting evidence unconvincing, a case of oath against oath and of the difficulty in such circumstances of arriving at a conclusion of guilt beyond reasonable doubt. Where that course is taken, the jury should also be told that there are cases in which an alleged victim's evidence is so convincing and the accused's denials so incredible that it is possible to reach that state of mind, but that caution is indicated. It is proper to refer to aspects of human nature and behaviour such as those mentioned in the above passages from Pahuja's case which are relevant to the facts of the case. In discussing the evaluation of witnesses, reference to the possibility of hidden motives for giving false evidence or making a false allegation is permissible if that appears to the judge to be desirable having regard to the circumstances of the case. 10. There are special difficulties in reaching a just verdict where the rape or attempted rape is alleged to have occurred in the matrimonial bed or the bed occupied by the parties to a continuing sexual relationship. There is the risk of motives, disclosed or undisclosed, arising out of tensions in the relationship. There is the risk of misunderstandings as to consent arising out of the habitual physical contact inherent in the relationship. The opportunities for corroboration are slight and an accused can do little to defend himself apart from denying the allegation. These factors, where they apply, are all proper bases for an appropriate warning. 11. Such warning as the judge sees fit to give, is given as part of his function to assist the jury in its evaluation of the facts and the evidence. The judge may refer to such aspects of human experience and behaviour as he considers to be relevant to the facts of the case, but must make clear to the jury that he is dealing with the facts and that they are free to reject his approach to the facts. The Solicitor-General drew attention to an observation of mine in R v Pahuja supra at p.198 in a passage which was approved by Deane J in Longman v R supra at p.96 as follows: "Subject to those considerations, he may give the jury a warning in the conventional terms or in any other terms which commend themselves to him". 12. The "conventional terms" which I had in mind, and which Deane J must have had in mind in approving the passage, were that it is dangerous to convict on the uncorroborated evidence of the person on whom the offence was alleged to have been committed (Kelleher v R [1974] HCA 48; 1974 131 CLR 534 per Gibbs J at p.553). I did not intend to include in the expression "conventional terms" any reference to the experience of the law or the judges or any reasons expressed to be applicable to the generality of complainants or sexual cases. In my opinion it is permissible for a trial judge to give a warning in "the conventional terms" so understood, or in any other terms which he considers to be appropriate. 13. There were, in my opinion, four errors of law in the direction quoted in the first question. First, the warning was expressly related to sexual cases generally. His Honour said: "... I must warn you to be especially careful in considering the evidence in a case where sexual allegations are made." 14. Both Longman and Pahuja demonstrate that to be an erroneous approach. Second, the reasons given for the warning referred to the generality of complainants in sexual cases. I refer to the following passage in the summing up: "Experience has taught the judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack. It is a very easy allegation to make. It is often very hard to contradict." Third, by using the expressions "I must warn you" and "Experience has taught the judges", His Honour conveyed to the jury that his warning had the weight of the law behind it and was not merely a piece of advice as to the evaluation of the evidence which the jury was free to accept or reject. Fourth, the recounting of the anecdote also conveyed that the warning related to the generality of sexual cases. The facts of the anecdote had no relation to the facts of the case at bar and were, indeed, far removed from it. It could only have conveyed to the jury that complainants in sexual cases generally are to be viewed with suspicion and that is not legally permissible. 15. The answer to the first question should be "Yes". 16. The second question is as follows: "Was it an error in law to direct the jury in relation to consent and persuasion in the terms that were used, namely 'Bear steadily in mind - I am sorry to be repetitive

• it is for the Crown to prove the lack of consent. "Consent" means free voluntary agreement to engage in an act of sexual intercourse at the time relevant. Submission is not consent. Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife's initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind, and consenting. You will bear that in mind when considering the totality of the evidence about each act of intercourse.'"

17. Before turning to a consideration of the above passage in the summing up, it is opportune to make certain general points. First, there is no question of this trial judge or any other holder of judicial office condoning domestic violence in any form. The application of force by one spouse to another without that other's consent is an assault and is a contravention of the criminal law. No judge would or could condone such criminal conduct. Second, a trial judge in the summing up is not delivering a lecture to the public on morals or manners in marital relations or in the interaction of parties to a sexual relationship. The judge is concerned only to direct the jury in relation to the legal issues arising out of the charge. Third, it is the duty of a trial judge, where appropriate, to caution the jury against confusing conduct, whether desirable or undesirable, which is not the subject of the charge, with the conduct upon which the charge is based. Fourth, a summing up is directed to the issues raised by the evidence for the prosecution and the defence and is understood by the jury in the light of those issues and that evidence.
18. The charges in the present case were rape and attempted rape. Rape is defined in s.48 of the Criminal Law Consolidation Act. It occurs when a person has sexual intercourse, as defined in the Act, with another person without that other person's consent knowing that that other person does not consent or being recklessly indifferent as to whether that other person consents. At the time of these alleged offences, although not now, s.73(5) of the Act provided that: "... a person shall not be convicted of rape or indecent assault on his spouse or an attempt to commit, or assault with intent to commit, rape or indecent assault on his spouse (except as an accessary) unless the alleged offence consisted of, was preceded or accompanied by, or was associated with - (a) assault occasioning actual bodily harm, or threat of such an assault, on the spouse; (b) an act of gross indecency, or threat of such an act, against the spouse; (c) an act calculated seriously and substantially to humiliate the spouse, or threat of such an act; or (d) threat of the commission of a criminal act against any person."
19. Section 73(5), however, is not relevant to the point raised in the Case Stated. The judge gave proper directions as to s.73(5) in other parts of the summing up. The passage with which the second question in the Case Stated is concerned, deals with the issue of consent.
20. The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. A previous refusal may be reversed thereby rendering the act consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats.

JUDGE2 PERRY J This is a case stated on the application of the Director of Public Prosecutions pursuant to s.350(1a) of the Criminal Law Consolidation Act (1935) reserving two questions of law for the consideration and determination of the Court. The questions arise out of a trial in which the accused was presented on an information which alleged five counts of rape, one count of attempted rape and one count of assault occasioning actual bodily harm. The accused pleaded guilty to the assault count but not guilty to the remaining counts on the information, upon which he was acquitted. 2. It should be made clear at the outset that the procedure by which the matter has been brought to this Court is not an appeal. The acquittal stands and is not open to question, irrespective of the manner in which the points of law falling for consideration are determined. The procedure under s.350(1a) is designed simply to allow the Director of Public Prosecutions to have this Court rule in the public interest upon questions of law for the guidance of judges conducting trials in which similar questions may arise in the future. The jurisdiction is advisory not appellate (see DPP's Reference (1984) VR 737 per Young CJ, Murphy and Hampel JJ at 729 and R v J (1987) 9 NSWLR 615 per Hunt J at 627). The identity of the acquitted person may not be published (Criminal Law Consolidation Act s.351(a)). 3. In order to understand the case stated, it is necessary to say something about the accused and the alleged victim whom I will call "M", and the circumstances surrounding the alleged offences. 4. At the time of trial M was aged 30 years and the accused 28. The accused enlisted in the Royal Australian Air Force in 1980. In 1986 he was stationed in Brisbane. M enlisted in the Air Force in Adelaide in early 1986 and was immediately transferred to Brisbane where she met the accused soon afterwards. After a period of time they established a relationship, and in April 1987 became engaged, at which time the accused began living with her. They married in October of the same year. Even before the marriage, it was apparent that there were some difficulties in their sexual relationship. M had told the accused before their engagement that she had been sexually molested between the ages of 4 and 12. She sometimes had flashbacks during which she was reminded of that experience. When those flashbacks occured she was unable to countenance sexual relations. A further matter of concern to the accused was that M admitted to him that she had a previous lesbian relationship with a young woman. The accused said in evidence that he was upset when M went off to visit that person soon after their marriage. More tension was created between them when M invited the same young lady to stay with them during the first Christmas of their marriage. 5. The evidence of the accused was that soon after he and M started living together "things started going terribly wrong". He described M as moody, lacking in affection and progressively withdrawing from sexual contact. He said in evidence that by the time of the marriage, sexual intercourse was "basically non-existent". When asked by the learned trial Judge why he had married M in those circumstances, he said, "I asked myself that same question". 6. M's evidence was that from the start their relationship was punctuated by periods when she did not feel inclined to have sexual relations. She said that at first, while they were living in Brisbane, the accused was sympathetic and did not attempt to force the issue. In 1988 the accused and M moved to a new posting in Melbourne. M's evidence was that the move to Melbourne signalled a change in the accused's attitude to her. While there were occasions of consensual sexual intercourse, to use her words, "If my husband wanted sex and I had problems with it, he would force sex from me". 7. She said that happened quite frequently. She said also that at times the accused became physically violent. They both began to seek counselling. The problems remained unresolved. 8. In January 1989 there was a further posting, this time to Adelaide. Their relationship continued to deteriorate. The evidence of M was that in July 1989 the accused began forcing her to submit to anal intercourse. The first two counts in the information relate to an episode alleged to have occurred in September or October of that year, when on M's account of the matter there was forced anal intercourse (the subject of the first count) and forced vaginal intecourse occurring immediately thereafterwards (the subject of the second count). 9. In November 1989, M became aware that she was pregnant. On M's evidence, the accused's violent behavour persisted. The third and fourth counts relate to an incident said to have occurred on 22 April 1990 when, according to M, the accused attempted an act of fellatio (count 3), following which he is alleged to have inserted a bottle into her vagina (count 4). 10. On 29 June 1990, M gave birth to a daughter. That event did nothing to repair the relationship between the parties. 11. Matters came to a head in February 1991. Count 5 relates to an allegation by M that on 27 February 1991, just after she had been showering, the accused assaulted her and had vaginal intercourse with her against her will, in the bathroom. Count 6 relates to an episode which is said to have occurred the next morning in the baby's bedroom when the accused is alleged again to have had vaginal intercourse with her against her will. 12. It was later that day, that is, 28 February 1991, that, according to M, she informed the accused that their relationship could not continue, and one of them would have to leave. The accused admits that M said something to that effect, but says that it was accompanied by an indication that he would never see their daughter again. Be that as it may, it is common ground that the accused proceeded to commit a physical but not sexual assault, which is the subject of the charge of assault occasioning actual bodily harm, to which, as I have said, he pleaded guilty. Following that assault, the parties did not cohabit further. At the trial, evidence was given for the prosecution by M and by two police officers who had attended at the accused's home following the assault on 28 February. One of the officers gave evidence of a formal interview which took place that evening at Elizabeth Police Station. The accused freely admitted the assault and said that he was sorry. He said: "All I wanted to do was hurt her. She was going to keep me away from my daughter." 13. He admitted to having assaulted her before. When the allegation was put that he had raped M that morning and the night before, the accused declined to answer further questions until he had spoken with a lawyer. No evidence was given of any further interrogation of the accused. 14. The prosecution called three medical practitioners who had, at various times, examined M. I do not go into the detail of their evidence, as it is not relevant to the questions under consideration. 15. The accused gave evidence, but did not call any other witnesses. I have already referred to some of his evidence. When referring to what he said to be M's refusal to respond to his advances in the early stages of the marriage, he said: "I tried to cuddle up to her, touch her, try and get her interested." He said further: "At times she was receptive to it, depending on how she felt to certain degrees. Other times she was quite verbal in telling me where to go." He said it was a problem which lead to a lot of arguments. He admitted that he pressured M at times to have intercourse with her. When asked directly: "Did you ever physically force yourself upon her?" He said: "It could be looked at that way, yes." He went on to describe how he would fondle her to try to arouse her interest and, to use his words, "to kindle some response". 16. He denied at any time having anal sex with M, and said that as far as he knew, despite the fact that he had occasionally put pressure on her to have sex, he had never performed the act of intercourse on any occasion without her consent. 17. The accused denied the acts said to constitute the first four counts. As to count 5, the incident which occurred after M had been showering, he said that during that evening he had made approaches to his wife which she discouraged, but that he had "cuddled her" and that they ended up having consensual intercourse on the floor of the bathroom. 18. His evidence as to the episode the next morning, that is, the morning of 28 February, (the subject of count 6) was that after an initial rebuff, M had said, "Go ahead and get it over and done with", following which consensual intercourse occurred. 19. After a retirement of almost five hours, the jury, which comprised seven women and five men, returned a verdict of not guilty on all six counts, as to the first three unanimously, and as to the remaining three by a majority. 20. It is against that background that the two questions referred to this Court fall to be considered. 21. I should say, before going on to deal with the questions, that in accordance with the usual practice, the learned trial Judge furnished to this Court a report, in the course of which he gave an explanation of the reasons why he expressed himself as he did in the course of the summing up. That report was read into the transcript at the commencement of the case stated. However, given the terms of the questions submitted to the Court, they must be answered solely by reference to the transcript of the trial. The First Question 22. This question is posed in the case stated in the following terms: "(i) Was it an error in law to warn the jury of the danger of false allegations in a sexual case in the terms that were used, namely "The charges which have been brought against Mr Johns are charges of a sexual nature. He had pleaded guilty to an assault. There is really in fact not much significance in the assault charge, but the charges which he is fighting and denying (and he has firmly denied them) are of a sexual nature and I must warn you to be especially careful in considering the evidence in a case where sexual allegations are made. Experience has taught the judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack. It is a very easy allegation to make. It is often very hard to contradict. Very few people are going to make up a story of a sexual attack in a hall with a lot of people so it usually concerns a place where there is only two people. It is hard to contradict and, of course, it can be of a very serious and distressing nature. In order to illustrate the fact that such allegations have been manufactured in the past, and just

to say something of the effect that false allegations can have, I will tell you an anecdote. Many years ago now in England, a respectable married businessman, with children, got in a train in London to go to a station outside London. It was quite a trip and some of it was through countryide. And he sat alone in a compartment. It was one of those that they call "dogboxes"; there's a corridor down the side of the train, with various compartments leading off it. It was a quiet time and he

sat in his compartment alone. After a station or two, he was still alone; a woman got in. She seemed to be a respectably-dressed woman. The train set off to go through a long patch of countryside before the next station. The woman approached the man; sat hear him; tore at her dress to expose her chest; knocked her head hard against the wooden side of the train and scratched herself, thus producing bruising and bleeding; and pulled the communication cord. The train stopped; the guard came running. "He tried to rape me" she said. The guard said he would have to call the police, and did. With the woman making this allegation, the police felt it their duty to charge the respectable businessman. So he was arrested, brought before a magistrate and released on bail. It was a shocking thing for him to have to face. It was too much for him. He took his own life. Soon after that, the same sort of incident happened on the same run, at the same spot, with the same woman. Further investigations showed that she was mentally deranged and it turned out that she had been doing this quite a bit. So you can see how careful we have to be about false allegations of rape. That is a dramatic story, of course, removed from the facts here, but it is just an illustration of the need to scrutinise all the evidence very, very carefully,

bearing in mind all the time that it is possible for a woman to manufacture a false allegation and that it has happened." (Summing up pages 5-6) 23. This question gives rise to the need to consider the application to the circumstances of the case of s.34i(5) of the Evidence Act. S.34i appears in the Act under the general heading "Evidence in Sexual Cases". It was originally introduced in 1976 (Act No 84 of 1976). It was repealed and re-enacted in 1984 when the present text was substituted (Act No 90 of 1984). 24. Ss.(5) provides: "In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence." 25. Prior to the enactment of that provision, the law required judges in sexual cases to warn the jury of a need for caution before accepting the uncorroborated evidence of the victim. This was coupled with an obligation to explain to the jury the meaning of corroboration, and to point to the evidence which was capable, if they chose to accept it as such, of amounting to corroboration. 26. In Kelleher[1974] HCA 48; , 131 CLR 534, in explaining the origins of the rule, Barwick CJ referred to a passage from Hale CJ "Pleas of the Crown" (vol 1, p.634), see at 543: "The Chief Justice's words ought to be remembered: 'It' (rape) 'is an accusation easily to be made and hard to be proved, and harder to be defended by the party concerned, though never so innocent'. 27. Lord Salmon's statement of the reason for the rule should also be borne in mind. His Lordship said that convicting on the evidence of the woman or girl alone '...is dangerous because human experience has shown that in these Courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute'. (Reg v Henry; Reg v Manning (1968) 53 Cr App R 150 at 153)". 28. The nature of the change effected by s.341(5) was considered by this Court in R v Pahuja (1988) 49 SASR 191. In that case, the Court held that the section did away with the rule of law or practice requiring a corroboration warning in sexual cases, but that the trial judge might nonetheless give such a warning in the exercise of his discretion. 29. In Pahuja, King CJ said (197): "There is no longer a legal obligation on the judge to give any warning. He is left free, however, to give, in the performance of his function of providing guidance to the jury on matters of fact, any proper warning or caution in relation to the evidence of the alleged victim which the circumstances of the case appear to indicate. ........... (198) In many sexual cases prudence will dictate the giving of some appropriate caution or warning. If, since the enactment of s.341(5), a judge cautions or warns the jury as to their approach to the evidence of an alleged victim of a sexual offence, he does so as part of his duty to provide guidance to the jury as to the evidence and the facts. He is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence

of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law. Subject to those considerations, he may give the jury a warnining in the conventional terms or in any other terms which commend themselves to him." 30. He said further (199): "Although I consider that s.341(5) has had the effect of abolishing the rule of law or practice relating to corroboration warnings in sexual cases, I cannot read into it some of the wider implications attributed to it. It does not confer upon the evidence of an alleged victim in a sexual case any particular legal status, nor inhibit the triers of the facts in a sexual case from weighing that evidence in the usual way, having in mind such aspects of human nature and behaviour as they consider to be material for that purpose. Acts of Parliament do not and do not purport to, change human nature. There are aspects of human nature and behaviour, such as sexual appetite, certain motives for making false complaints and proneness to certain types of fantasies, which have a peculiar bearing upon sexual cases and which may be important in certain factual situations. The ease of making an allegation and difficulty of refutation, often given as reasons for the former rule, are considerations not entirely confined to sexual cases, but are often nevertheless of considerable importance in such cases. The trial judge is not required to ignore such matters in charging the jury and may have a duty in certain cases to remind them of such

considerations. It is to be remembered, however, that the weight to be attached to such considerations in any particular case is a matter for the jury, and that should be made clear to them." 31. Although King CJ dissented from the views expressed by Cox and Johnston JJ in Pahuja as to the necessity for a warning where a child is the victim or a witness in a sexual case, the passages which I have cited do not conflict with anything said in the other judgments. 32. Pahuja was considered by the High Court in Longman [1989] HCA 60; (1989) 168 CLR 79. That case turned on section 36BE(1)of the Evidence Act (1906)(WA). S.36BE(1)(a) is in terms indistinguishable in effect from s.34i(5) of the South Australian Act. I refer later to sub-section (b). 33. The High Court held that the Western Australian section dispensed only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class, and did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of the case. 34. In the course of their joint judgment, Brennan, Dawson and Toohey JJ said (85): "The warning of danger in acting on the uncorroborated testimony of the alleged victim in cases of rape and other sexual offences places alleged victims of such offences in a special category of witnesses: Reg v Hester (1973) AC 296 at 325; Reg v Spencer [1987] UKHL 2; (1987) AC 128 at 141; Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 319, 323........ By abolishing the requirement imposed 'by any rule of law or practice' par. (a) (of the Western

Australian provision) overrode the reason which prompts the giving of the warning. It removed the alleged victims of sexual offences from that special category of witnesses." 35. They went on to say: "The mischief at which the provision appears to have been aimed is the adverse reflection which a warning 'required by any rule of law or practice' casts indiscriminately on the evidence of all alleged victims of sexual offences, the vast majority of whom are women, and the corresponding protection which the giving of a warning confers on an accused in all cases of sexual offences. It is evident that the legislature regards the reflection as unwarranted and the protection as unjust. If the alleged victims of sexual offences, as a

class, are not regarded by the legislature as suspect witnesses, judges should no longer warn juries that allegations of sexual offences are more likely to be fabricated than other classes of allegations." 36. They went on to hold that the statutory provision did not affect the judge's discretion to make a comment having regard to the circumstances of the case. They said (87): "No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par.(a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par. (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only." 37. In Longman it was held that the trial judge erred in failing to give a warning. The circumstances which in the view of the High Court called for a warning was that the alleged victim in that case was a young girl aged 6 years at the time of the first of two counts of alleged indecent dealing and aged 10 at the time of the second. It was not until she was aged over 30 years that she first made a complaint about it, and she was 32 years of age at the time of the trial. In the case of both of the alleged counts she alleged that she had been awakened from her sleep by the acts of the accused. The High Court held that the long delay put it out of the accused's reach to "explore in detail the alleged circumstances" and perhaps to "adduce evidence throwing doubt upon the complainant's story or confirming" his denial (91). In those circumstances, Brennan, Dawson and Toohey JJ held that it was "imperative that a warning be given to the jury". 38. S.36BE(1)(a) of the Western Australian Evidence Act, which as I have said, equates with s.34i(5) of the South Australian Act, is followed by a further sub-section: "(b) The judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning if justified in the circumstances." The presence of that additional provision in the Western Australian legislation does not alter the relevance of the observations made by the High Court in Longman to the interpretation of s.34i(5). The requirement in sub-paragraph (b) of the Western Australian section goes no further than what was found by implication to be the position with respect to the South Australian section in the decision of this Court in Pahuja, a decision which appears in Longman to have been approved by the High Court. 39. It follows that a direction to a jury in South Australia which has a tendency to characterise the complainant in a sexual case as a member of a "class of suspect witnesses" will be erroneous in law. No such error, however, would infect a summing up which simply gives a warning tailored to the requirements of the case designed to meet particular circumstances present in the case, which in the discretion of the learned trial judge appear, in the interests of justice, to necessitate such a warning. The factual circumstances present in Longman give an indication of situations in which such a warning may be legitimate. 40. This case concerns an allegation of rape in marriage. A question arises as to whether or not the fact that the offending conduct is alleged to have been committed by one spouse upon the other during the course of the marriage is a circumstance which warrants a particular warning. 41. Rape is defined by s.48 of the Criminal Law Consolidation Act as follows: "A person who has sexual intercourse with another person without the consent of that other person - (a) knowing that that other person does not consent to sexual intercourse with him; or (b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him, shall (whether or not physical resistance is offered by that other person) be guilty of the felony of rape and liable to be imprisoned for life." 42. Pursuant to the common law, marriage involves an implied consent to intercourse on the part of the wife, except in cases where there is a separation order or a decree nisi for divorce. As to the history of the rule at common law, see R v Miller (1954) 2 QB 282. The actual decision in Miller has been severely criticised; see, for example, "Marital Consent in Rape", (1989) Crim LR 877 (Richard Brooks) and see generally the perceptive article by Charlotte L. Mitra "...For She Has No Right or Power to Refuse Her Consent" (1979) Crim LR 558. In 1976 the common law rule was abrogated in South Australia by the enactment of s.73(3) of the Criminal Law Consolidation Act (See Act No 83 of 1976) which provides: "No person shall by reason only of the fact that he is married to some other person be presumed to have consented to sexual intercourse with that other person." 43. The 1976 amending Act introduced an additional element peculiar to cases of alleged rape in marriage by the enactment of s.73(5) which was as follows:- "Notwithstanding the foregoing provisions of this section, a person shall not be convicted of rape or indecent assault upon his spouse, or an attempt to commit, or assault with intent to commit, rape or indecent assault upon his spouse (except as an accessory) unless the alleged offence consisted of, was preceded or accompanied by, or was associated with - (a) assault occasioning actual bodily harm, or threat of such an assault, upon the spouse; (b) an act of gross indecency, or threat of such an act, against the spouse;

(c) an act calculated seriously and substantially to humiliate the spouse, or threat of such an act; or (d) threat of the commission of a criminal act against any person." 44. Ss.(5) was repealed in 1992 (Act No 9 of 1992 which came into operation on 16 April 1992) and replaced by other provisions unrelated to rape in marriage. Section 73(3) remains. Accordingly, this case turns on s.73 as it stood after the 1976 amendment, but before that effected in 1992. 45. While the effect of the 1976 amendments was to enable a prosecution to be brought in cases of alleged rape in marriage, and while the legal rules as to proof of rape still turns on the elements identified in s.48, in this case amplified by s.73(5) as it then stood, the fact that the alleged rape occurs during the course of a marriage does introduce complications which are likely to render the task of the jury somewhat more difficult. 46. Tensions brought about by the relationship of the parties over a period of time may well give rise to unstated motives which could possibly have a bearing on the willingness of a jury to accept a complaint of rape, for example, in cases where there is a dispute over the custody of a child, or where one party wishes to terminate the relationship against the wish of the other. 47. It must be said also that the opportunity of abuse by one partner of the other may be fostered by a familiarity born of a relationship extending over a period of time. No doubt the jury must pay heed to the fact that women are prone to be more vulnerable to physical abuse than the husband, and may well feel locked into a relationship which has become untenable. Such circumstances may have to be taken into account where there is a failure to make an early complaint. 48. Furthermore, an allegation of rape said to have occured during the course of a marriage will inevitably be made in the wake of a failed relationship. In such a situation, almost invariably there will be a polarisation of the evidence of the parties to the marriage, and a tendency on both sides to attempt to justify their own position in the breakdown of the marriage. 49. However, consistently with the view taken by the High Court in Longman, a wife should not be regarded as a member of a class of "suspect witnesses", or for that matter, a class of "specially trustworthy witnesses". But with respect to the judge's discretion to give a warning of the kind now in question, it seems to me that the fact that the parties are married may well give rise to circumstances prompting a need to warn the jury of the possibility that underlying motives of the kind to which I have referred might have given rise to invention. 50. Turning to the passage from the learned trial Judge's summing up which is the subject of the first question, in my opinion, taken as a whole, that passage embodies an error in law. The first paragraph of the passage, where the learned trial Judge warns the jury to be "especially careful in considering evidence in a case where sexual allegations are made" is followed by the comment that "experience has taught the judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack". Such a direction is contrary to the view expressed by the High Court in Longman that: "...alleged victims of sexual offences as a class are not regarded by the legislature as suspect witnesses and judges should no longer warn juries that allegations of sexual offences are more likely to be fabricated than any other classes of allegations." 51. The following remark by the trial judge that: "It (an allegation of rape) is a very easy allegation to make. It is often very hard to contradict", was, in my view, also erroneous. It is true that such a comment has been commonplace in charges to juries over many years. But notwithstanding the dictum of King CJ in Pahuja (1987) 49 SASR at 199, where he refers to "the ease of making an allegation and difficulty of refutation", and the fact that this particular warning as described in Hale Pleas of the Crown was approved by the High Court in Kelleher (supra), in my opinion, with respect, after Longman, such a direction should no longer be given. 52. In Longman, Deane J said (168 CLR 100), after referring to the trial judge's observation to the jury in that case, "it's very easy to make a complaint ... and it is very difficult ... for an accused person to prove his innocence", went on to say: "Not only in the context of the likely ordeal of a complainant and the advantage which the criminal onus confers upon the accused, is the substance of that assertion open to question. The generalisation involved in it underlays the rule of practice which s.36BE(1) has abolished." 53. Earlier in his judgment (168 CLR 94) he had commented: "...I do not think that the direction should be explained by reference to 'the ease with which the

charge is made and the difficulty which may attend its rebuttal'. The distress and even humiliation to which a complainant in a sexual case is commonly subjected seem to me to make the first limb of that explanation inappropriate, particularly when sexual assault within a family unit is involved. The second limb seems to me to run the risk of diverting the jury's attention from the proper working of the onus of proof in a criminal trial." 54. Although the other judges of the High Court in Longman do not expressly advert to the matter, their reasoning is in terms which would support the conclusion reached by Deane J. 55. The anecdote which follows in the next paragraph of the passage in His Honour's summing up in this case was inapt and served to compound the error of law to be found in the preceding passage. The facts in the anecdote bore no resemblance to any of the evidence in the case. The anecdote had the tendency to distract the jury from a proper consideration of the facts of the case before them, and at the same time wrongly to emphasise that women making sexual allegations fall into a special category of unreliable witnesses. 56. This is not to say that there were no features of the case which might justifiably have given rise to a warning of some kind or another. But when a warning is given, notwithstanding the provisions of s.34i of the Evidence Act, it must be related to the special circumstances of that particular case said to give rise to the need to make the warning. 57. Of course, remarks made by a trial Judge in an endeavour to assist the jury with their consideration of the facts, even if misguided, may not give rise to an error of law. However, the High Court in Longman has made it plain that the inadvisability of the trial Judge giving a "category" type warning arises as a matter of implication from the enactment of s.34i(5), and as such it follows that contravention of the principles enunciated in Longman amounts to an error of law. 58. I would answer the first question "Yes". The Second Question 59. The second question is as follows: "(ii) Was it an error in law to direct the jury in relation to consent and persuasion in the terms that were used, namely: "Bear steadily in mind - I am sorry to be repetitive - it is for the Crown to prove the lack of consent. "Consent" means free voluntary agreement to engage in an act of sexual intercourse at the time relevant.

Submission is not consent. Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife's initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind, and consenting. You will bear that in mind when considering the totality of the evidence about each act of intercourse." (Summing up pages 12-13). 60. It would appear that the learned trial Judge felt it necessary to say something on the topic of what he described as "persuasion", having regard to the evidence of the accused that there were times when he did endeavour to persuade M to have intercourse with him, and when he admitted in the passages of evidence to which I have referred that his attempts at persuasion sometimes took a physical form. There was certainly specific evidence by the accused that he attempted to persuade his wife to have intercourse with him on the occasion identified with respect to the incidents the subject of counts 5 and 6. His denials of the other counts would appear to be more general in nature and are to be inferred from his evidence that he on no occasion had intercourse with M against her will, that he did not press her to indulge in any act of fellatio, and that he had not had anal sex with her. 61. If his case had rested on those general denials, and were it not for his evidence concerning counts 5 and 6, it may well be that there was no reason for the learned trial judge to have referred to the question of "persuasion" at all. In those circumstances, it might simply have been a matter for the jury to weigh up on the one hand an allegation of intercourse without consent, and on the other a denial of non-consensual intercourse. But there was a body of evidence given by the accused explaining his increasing frustration at what he perceived to be M's frigidity and his attempts sexually to arouse her. It was open to the jury to consider on the whole of the evidence, and notwithstanding the accused's denials of forced intercourse, that some such process may have lay behind M's allegations the subject of all of the counts. In that situation it was no doubt proper for the learned trial Judge to offer some guidance to the jury as to how they should approach a situation where a husband attempts to persuade his wife, who has refused intercourse, to change her mind. 62. It was perfectly correct for the learned trial Judge to state, as he did, "submission is not consent". The law is clear that consent must be freely given, and acquiescence to intercourse by reason of any threat or duress may properly be regarded as negativing consent for the purposes of the law of rape. Whether or not consent has been freely given is a question of fact for the jury to determine, having regard to all the circumstances. The question is not concluded against the accused simply by reason of the fact that there was an initial refusal to consent to intercourse. Even following such a refusal there may be a freely given consent after further dealings between the parties. True it is that the difference between submission and consent can be a fine line. But the distinction at law is clear, it is well supported by a long line of judicial authority, and it is for juries, properly instructed, to deal with the matter. 63. Returning to the passage in question from the learned trial Judge's summing up, if the words: "There is nothing wrong with a husband faced with his wife's initial refusal to engage in intercourse in attempting, in an acceptable way, to persuade her to change her mind", had stopped there, there would have been no error of law, or any other reason to doubt the propriety of the direction. However, the problem arises because of the following words: "...and that may involve a measure of rougher than usual handling. It may be that in the end, handling and persuasion will persuade the wife to agree." 64. The difficulty which that passage poses is that it suggests to the jury that a consent born of "rougher than usual handling" may be a valid consent. For the matter to be put in that way was apt to lead the jury into error. 65. Of course, consensual "rougher than usual handling" would not vitiate consent for the purposes of the law of rape. No doubt in some relationships a degree of rough handling or horseplay might be regarded by both parties as an acceptable prelude to intercourse. Consensual sexual behaviour between humans and the preliminaries to it can take a variety of forms. But there was no evidence in this case on either side of consensual "rougher than usual handling". A direction in the terms in question was apt to convey the impression that consent might be induced by force, against the will of the victim. That has never been the law. It seems to me that the sentence, which includes the words "measure of rougher than usual handling" is so close to the earlier passage where His Honour defines the word "consent" that it may well have been understood by the jury as part and parcel of that definition. 66. Looking at the matter in that way, in my opinion, that direction also involved an error of law. 67. I would answer the second question "Yes."

JUDGE3 DUGGAN J This case stated requires the court to consider whether the learned trial judge erred in law in two of the directions he gave in the course of his summing up in a rape trial in which it was alleged that a husband had raped his wife. The relevant facts are set out in the judgment of Perry J. 2. First, it was argued by the Solicitor-General that the trial judge erred in law in warning the jury in the way in which he did of the danger of false allegations in sexual cases. According to the argument any requirement for a warning as to the danger in all sexual cases of acting on the evidence of uncorroborated complainants was removed by s.34i(5) of the Evidence Act, 1929. It was further argued that such a warning should not be given and that, in any event, the terms in which the warning was given in the present case were contrary to the law as modified by s.34i(5). 3. The immediate purpose of the section was to abolish the rule of practice that, as a matter of course, a judge should warn a jury that it was dangerous to convict on the uncorroborated evidence of the complainant in a sexual case. The reason usually given for the warning was that human experience has shown that such allegations are easy to fabricate and difficult to refute. (R v Henry and Manning (1968) 53 Cr App R 150 at 153-154). The principal difficulty with a rule of this nature lies in its general application. Before the amendment to the Evidence Act the direction had to be given in many cases far removed from the purpose claimed for its justification. Furthermore it placed the complainant in a special category of suspect witnesses. As Deane J observed in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 93: "The effect of that is that a requirement that a jury be warned that it is dangerous to act on the uncorroborated evidence of a complainant inevitably represents a strong discouragement to the intelligent victim of a sexual assault, particularly one committed in a domestic context where corroboration of the complainant's testimony in relation to all elements of the alleged offence is unlikely, against complaining to the authorities or co-operating in the prosecution of the

offender." 4. The rule also conferred a protection upon the accused in all sexual cases. 5. Although s.34i(5) does not expressly forbid the giving of a warning in the traditional terms, it is a denial of the rule's fundamental premise that the warning should be given in all sexual cases because the danger it seeks to address is present in all such cases. Accordingly it is my view that any direction to a jury which is inconsistent with the statutory rejection of the basis of the former rule is wrong in law. 6. This is not to say that the section precludes the giving of a warning appropriate to the facts of the particular case or that it prevents the trial judge from commenting on issues relevant to credibility such as motive. The logic which justifies the abrogation of the old requirement to give the warning in all cases also supports the view that alleged victims of sexual offences are not to be placed in a special category of witnesses immune from the usual scrutiny as to credibility. In R v Pahuja (1987) 49 SASR 191 at 199 King CJ in a passage which was approved in the majority judgment in Longman said: "Although I consider that s 34i(5) has had the effect of abolishing the rule of law or practice relating to corroboration warnings in sexual cases, I cannot read into it some of the wider implications attributed to it. It does not confer upon the evidence of an alleged victim in a sexual case any particular legal status, nor inhibit the triers of the facts in a sexual case from weighing that evidence in the usual way, having in mind such aspects of human nature and behaviour as they consider to be material for that purpose." 7. And in the same case the learned Chief Justice, in a passage cited with approval by Deane J in Longman, said (p.198): "In many sexual cases prudence will dictate the giving of some appropriate caution or warning. If, since the enactment of s 34i(5), a judge cautions or warns the jury as to their approach to the evidence of an alleged victim of a sexual offence, he does so as part of his duty to provide guidance to the jury as to the evidence and the facts. He is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at

least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law. Subject to those considerations, he may give the jury a warning in the conventional terms or in any other terms which commend themselves to him." 8. It remains appropriate in a sexual case, therefore, for a trial judge to canvass with the jury issues such as motives for fabrication, the fact (if it be so) that the case is one of oath against oath and any other factors which might touch upon credibility. In many cases of alleged rape within marriage, for example, there may well be reference in the summing-up to the cross-currents of emotion which could be relevant to the assessment of the evidence of the principal participants. In some of these cases it may be necessary to go as far as warning the jury of the dangers of convicting on the evidence in the case. But, as I have attempted to explain, the justification for such a warning would have to depend upon circumstances beyond the mere fact that the complainant was a witness in a sexual case. 9. Applying these considerations to the warning given to the jury in this case, it is clear that the learned trial judge began his direction by conveying to the jury that this was a warning which was required as part of the judge's duty. The statement "the charges which he is fighting ... are of a sexual nature and I must warn you to be especially careful in considering the evidence in a case where sexual allegations are made" reflects the compulsory nature of the former rule and, in my view, resulted in a misdirection. 10. The learned trial judge then went on to say "Experience has taught the judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack. It is a very easy allegation to make. It is often very hard to contradict". No other reason for the warning was conveyed to the jury and so its purpose was identified with the logic of the previous law. For reasons which I have given a direction of this nature is inconsistent with the abrogation of the previous rule of practice. 11. To my mind the anecdote which the learned trial judge then related to the jury was flawed for the same reason. His Honour said that the story illustrated the fact that women have manufactured or invented false allegations of rape and sexual attack in the past and that such allegations are easy to make up and difficult to refute. It is this generalised approach which s.34i(5) aims at removing from jury directions. In the joint judgment of Brennan, Deane and Toohey JJ in Longman's case their Honours said (p.85): "The mischief at which the provision appears to have been aimed is the adverse reflection which a warning 'required by any rule of law or practice' casts indiscriminately on the evidence of all alleged victims of sexual offences, the vast majority of whom are women, and the corresponding protection which the giving of a warning confers on an accused in all cases of sexual offences. It is evidence that the legislature regards

the reflection as unwarranted and the protection as unjust. If the alleged victims of sexual offences, as a class, are not regarded by the legislature as suspect witnesses, judges should no longer warn juries that allegations of sexual offences are more likely to be fabricated than other classes of allegations." 12. I should add that a dramatic story such as this which the jury are told is not fictional can also have an effect beyond illustrating the importance of the warning to exercise caution. I think there is a danger for the lay mind to attempt to resolve the case being tried by reference to the facts of a case which should have led to an acquittal. This is one of the reasons why counsel are usually prevented from referring to the facts and results of cases other than the one being tried when addressing a jury. 13. For the reasons which I have given earlier, however, I am of the view that it was wrong in law to include the anecdote as part of the direction. 14. I turn then to the second point raised by the case stated. It would appear that the learned trial judge decided to direct the jury on the topic of persuasion because of some general comments which the accused made concerning his attempts from time to time to persuade his wife to have sex with him. However this does not seem to have been an issue in the case of any of the offences charged in the information. Accordingly I doubt that the directions impugned in the second question posed in the case stated would have had any influence on the verdicts returned by the jury. Nevertheless the question asked of the court is whether the directions given in relation to consent disclose an error in law. 15. It cannot be disputed that the forceful handling of one person by another without the consent of the person so handled is an assault at law. This proposition applies equally to persons who are husband and wife. If the force used results in submission to some form of sexual activity the law does not regard that submission as a valid consent to that activity. As the learned trial judge told the jury, in the case of rape consent means a free and voluntary engagement in the act of sexual intercourse at the relevant time. 16. Although the application of these principles to particular facts may give rise to difficulty, particularly in a case involving husband and wife, the principles themselves are uncontroversial and are applied as part of the everyday practice of the criminal jurisdiction. They are, of course, well known to the trial judge. 17. The difficulty in the present case arises from the fact that, after correctly stating these principles, the learned trial judge sought to explain the difference in law between submission and consent and in doing so said: "Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife's initial refusal to engage in intercourse, in

attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree." 18. (I have emphasised the words "in law" because the only relevant values judgment made by his Honour on this issue in the course of his summing up was his comment "the community deplores rape and aggressive sexual conduct against unwilling women".) 19. His Honour has explained in his report that when he used the words "in an acceptable way" in the above passage he meant "acceptable to the wife". If he had used the latter expression most of the difficulties with the direction as a statement of the law would have evaporated. But in my view his Honour used a form of words which did not convey his intended meaning. The summing-up must be viewed objectively by having regard to the manner in which the direction would have been understood by the jury. The trial judge told the jurors they may have had to consider the matter of "persuasion". He then spoke of an attempt to persuade "in an acceptable way". As he was directing the jury on the law I think that the jurors may well have understood him to be referring to conduct which was acceptable in law. 20. His Honour then referred to the fact that the persuasion may involve a measure of "rougher than usual handling". In my opinion this reference in the context of persuading a reluctant participant is more consistent with the notion of force than with vigorous handling consented to by the wife. Of course, as his Honour told the jury, the line may be a fine one and this is illustrated by the passage in the accused's cross-examination which appears to have led to the direction. The cross-examination proceeded as follows: "Q. She's given evidence in this court that on a number

of occasions you would physically force her to have sexual intercourse with you. Did anything like that ever happen? A. I pressured her to have sex, yes. Q. When you say you pressured her to have sex, what do you mean by that? A. Basically, I suppose it could be considered emotional blackmail. Just, stating, what a husband and wife, I'd say there should be some form of sexual contact between us. Q. How would that, as far as you were concerned, emotionally pressure her into having sex? A. She felt guilty and quite often conceded to my request. Q. Did you every physically force yourself upon her? A. It could be looked at that way, yes. Q. In what way could it be looked at like that? A. Whilst trying

• trying to get her interested I'd sort of sit on her, not actually sit on her, but have myself astride of her, on my knees, on the bed, trying to play, trying to be playful with her. Q. And what sort of things would you do? A. I'd try to get her interested, touch her, tried to smooch her, try and kindle some sort of response from her. Q. You have told the ladies and gentlemen on some occasions, she would be in it, up to a point, and then on other occasions she would flatly reject it? A. Yes. There were times when she was quite happy and she let me know she couldn't go any further, and other times she wasn't interested, full stop."

21. I repeat, however, that the words used by the trial judge are more likely to have conveyed the impression that the law condoned a measure of force to bring about consent and, viewed in this way, it must be said that the direction was contrary to law.
22. I would answer "Yes" to both questions.