Lord Scarman:

This appeal is in truth two appeals. The appellant appeals, by special leave, against two decisions of the Court of Appeal of New Zealand. In the first he appeals against the decision by a majority of the Court (Richmond P. and Richardson J, Woodhouse J dissenting) dismissing his appeal from a conviction of rape. In the second he appeals against a refusal of the Court of Appeal (Richardson, McMullin and Barker JJ) to grant him legal aid to prosecute his appeal to the Judicial Committee of the Privy Council in the rape case.

The Rape Appeal.

In the early hours of 19 November 1978 the appellant broke and entered a dwelling-house. The Crown's case was that he then twice raped a young woman who was an occupier of the premises. There was no dispute that intercourse had taken place on the two occasions. The defence was that the woman consented (or that the appellant honestly believed that she was consenting).

But when the appellant came to give evidence, his case as to the second occasion was that after he had penetrated the woman for the second time he became aware that she was not consenting; he admitted, however, that he did not desist from intercourse. In summing up this part of the case the trial Judge said to the jury:

I tell you, as a matter of law ... that if, having realised she is not willing, he continues with the act of intercourse, it then becomes rape ... .

It is said that this direction was wrong in law. The appellant's Counsel submits that by the criminal law of New Zealand if a man penetrates a woman with her consent he cannot become guilty of rape by continuing the intercourse after a stage when he realises that she is no longer consenting.

The submission raises a question as to the true construction of ss. 127 and 128 of the Crimes Act 1961. Section 127 defines sexual intercourse and is in these terms:

For the purposes of this Part of this Act, sexual intercourse is complete upon penetration; and there shall be no presumption of law that any person is by reason of his age incapable of such intercourse.

Section 128 defines rape and, so far as is material, is in these terms:

128. Rape - (1) Rape is the act of a male person having sexual intercourse with a woman or girl -

(a) Without her consent.

Counsel for the appellant took one point only; but he submitted that it was all he needed. He relied on the definition in s. 127 to establish the proposition that rape is penetration without consent: once penetration is complete the act of rape is concluded. Intercourse, if it continues, is not rape, because for the purpose of the Act it is complete upon penetration.

The Court of Appeal by a majority rejected the submission, expressing the opinion that the purpose of s. 127 was to remove any doubts as to the minimum conduct needed to prove the fact of sexual intercourse. "Complete" is used in the statutory definition in the sense of having come into existence, but not in the sense of being at an end. Sexual intercourse is a continuing act which only ends with withdrawal. And the offence of rape is defined in s. 128 as that of "having" intercourse without consent.

Their Lordships agree with the majority decision of the Court of Appeal, and with the reasons which they gave for rejecting the appellant's submission and for construing the two sections in the way in which they did. As Lord Brightman observed in the course of argument before the Board s. 127 says "complete", not "completed". The Board was referred not only to the two Australian cases discussed by the Court of Appeal but to a third one, Richardson v. The Queen [1978] Tas SR 178. None of these cases is directly in point because each is concerned with statutory provisions which differ from the two sections of the New Zealand statute with which this appeal is concerned. Their Lordships rest their view upon the true construction, as they see fit, of the two sections already quoted of the Crimes Act 1961.

Their Lordships were, however, disturbed by