Criminal Law-Mens rea-Mistake of fact- and reasonable belief
by accused that former marriage invalid-Case stated-Functions of Court of Criminal Appeal-Crimes Act 1928 (Vict.) (No. 3664), secs. 61, 478.
Sec. 61 of the Crimes Act 1928 (Vict.) provides: Whosoever being married goes through the form or ceremony of marriage with any other person during the life of her or his husband or wife, shall be guilty of felony. in this section contained shall extend to any person going through the form or ceremony of marriage as aforesaid whose husband or wife has been con- tinually absent from such person for the space of seven years then last past and has not been known by such person to be living within that time; or shall extend to any person who at the time of her or his going through such form or ceremony of marriage has been divorced from the bond of marriage or to any person whose marriage at such time has been declared void by the sentence of any court of competent jurisdiction."
Held, by Latham C.J., Rich and Dixon JJ. (Starke and Evatt JJ. dissenting), that upon a presentment under this section an honest and reasonable, though mistaken, belief by the accused that a prior marriage of the woman he first married had not been dissolved because the decree nisi had not been made absolute and that therefore his former marriage was invalid, SO that he was lawfully entitled to go through the ceremony in respect of which the charge is laid, constitutes a good defence.
The accused was charged under sec. 61 of the Crimes Act 1928 (Vict.) with having gone through the form of marriage with A during the life of his wife, B, who had been previously married but whose former husband had obtained a divorce from her. The presiding judge put the following specific question to the jury, although directing them that, if it was answered in the affirmative,
it did not constitute a defence to the charge: Did the accused at the time of going through a form of marriage with A believe bona fide and on reasonable grounds that the divorce granted to B's former husband had not been made absolute ? The jury returned a verdict of guilty but answered the specific question in the affirmative.
Held, by Latham C.J., Rich and Dixon JJ. (Starke and Evatt JJ. dissenting), that on the jury's finding the accused was not guilty of the offence charged.
R. v. Tolson, (1889) 23 Q.B.D. 168, applied. R. v. Wheat and Stocks, (1921) 2 K.B. 119, not followed. The distinction between a mistake of fact affording a defence to a criminal charge and a mistake of law considered.
On the hearing of a case stated under sec. 478 of the Crimes Act 1928 (Vict.) the Court of Criminal Appeal is limited to answering the specific questions referred to it and should not refer to any material not incorporated in the case…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Thomas v The King [1937] HCA 83
Case
[1937] HCA 83
Decision Date
CaseChat Overview and Summary
The case of *Thomas v The King* involved a charge of bigamy against the appellant, John Henry Thomas. The prosecution alleged that Thomas, while still married to his first wife, Agnes Julia Higgins, went through a form of marriage with Bessie Deed. The central dispute revolved around Thomas's belief regarding the validity of his first marriage. Evidence was presented that Thomas had been informed by his first wife that her divorce from her previous husband had not been made absolute, rendering their marriage invalid. The trial judge, despite admitting evidence of this belief, directed the jury that it did not constitute a defence. The jury returned a guilty verdict but answered a specific question affirmatively, finding that Thomas had honestly and reasonably believed his former marriage was invalid. The case was then stated for the opinion of the Court of Criminal Appeal of Victoria.
The legal issues before the High Court of Australia were whether an honest and reasonable belief by an accused that their previous marriage was invalid, due to a mistaken understanding of divorce proceedings, constituted a valid defence to a charge of bigamy. Specifically, the Court had to determine if such a belief negated the necessary *mens rea* (guilty mind) for the offence. A further issue concerned the scope of the Court of Criminal Appeal's powers when dealing with a case stated, particularly whether it could consider evidence not formally included in the stated case.
The High Court, in a majority decision, held that an honest and reasonable belief by the accused that his former marriage was invalid, even if mistaken, did constitute a defence to bigamy. The Court reasoned that the offence of bigamy requires the accused to be a married person at the time of the second marriage. If the accused genuinely and reasonably believed their prior marriage was invalid (in this case, because the divorce decree nisi had not been made absolute), then they did not possess the requisite *mens rea* for the crime. The Court distinguished this from a mistake of law, emphasizing that the belief here was about a factual matter – whether a court decree had been finalised. The majority applied the principle established in *R. v. Tolson* (1889) 23 Q.B.D. 168, which held that an honest and reasonable belief in facts that would render the act innocent is a defence, and departed from the approach taken in *R. v. Wheat and Stocks* (1921) 2 K.B. 119. The Court also found that the Court of Criminal Appeal had erred by considering evidence outside the case stated when answering the second question.
The High Court varied the decision of the Court of Criminal Appeal. It held that the jury's finding that the accused held an honest and reasonable belief that his former marriage was invalid meant he was not guilty of the offence charged. Consequently, the conviction was quashed.