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Citation: 2 J. Crim. L. 601 1938

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Bigamy and Mens rea

IF,time
on a presentment for bigamy, the jury finds that at the
of the alleged bigamous marriage the prisoner,
bona fte and on reasonable grounds, believed that the woman
whom he had previously married was a person against whom
her former husband had obtained a decree 7isi fpr divorce,
but that the decree nisi had not been made absolute, is the
prisoner guilty or not guilty ? This was the question which
the High Court of Australia was required to resolve in the
case of Thomas v. The King, which is now reported in
59 Commonwealth Law Reports, 279. By a majority of three
judges to two, the High Court held that the prisoner was
not guilty of bigamy as he had not the mens rea necessary
to constitute the crime on which he was presented. The
opinion of the majority (Latham C.J., Rich and Dixon JJ.)
involves a rejection of the decision of the English Court of
Criminal Appeal in R. v. Wheat, R. v. Stocks (Ig2, 2 K.B.,
ii9), and for that reason should be of interest to English
readers.
The facts of the case are briefly these. In 1929 John
Henry Thomas, a constable of police in the Victorian Police
Force, went through the ceremony of marriage with a woman
named Agnes Julia Higgins. Mrs. Higgins had been married
previously, but her former husband, Higgins, had obtained
a decree nisi for divorce on the 27th April, 1928. Under
section 89 of the. Victorian Marriage Act, 1928, it is the duty
of the Prothonotary of the Supreme Court, upon the expiration
of the time limited by a decree nisifor dissolution of marriage,
to enter a memorandum upon the decree nisi unless in the
meantime the petitioner has directed him in writing not to do
so, or there has been an intervention or an appeal. Upon that

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THE JOURNAL OF CRIMINAL LAW

memorandum being made, the decree becomes absolute, and

the memorandum, whenever made, operates from the time
when it should have been made (Marriage Act, section 91).
By virtue of these sections, Higgins's decree became
absolute on the 28th July, 1928. According to the prisoner's
account, Mrs. Higgins (or, as she now was, Mrs. Thomas)
soon began to deny that she was his wife, telling him that she
was not "properly married to him ", that " the divorce had
not been entered ", and that " she had not got a writing
through the Court ". Finally, still protesting the legal
inefficacy of her marriage with Thomas, she made off with
another man. The prisoner believed her statements, and soon
afterwards, under the mistaken belief that the decree dissolving
the Higgins' marriage had never been made absolute and that
his marriage with Mrs. Higgins was invalid, went through the
ceremony of marriage with another woman. He was charged
with- bigamy in respect of this second marriage.
At his trial in the Supreme Court of Victoria, the trial
judge (Martin J.) directed the jury that the prisoner's mistaken
belief that the marriage with Mrs. Higgins had not been
dissolved was no defence, but he asked the jury to find specially
what was the prisoner's belief when he went through the second
marriage ceremony. The verdict of the jury was as follows :
" Guilty ; the accused at the time of going through the second
marriage believed bona fide and on reasonable grounds that
the divorce granted the first wife's former husband had not
been made absolute." The trial judge then stated a case for
the opinion of the Full Court, and asked :" i. Is it a good defence to the charge of bigamy that the
accused bona fide and on reasonable grounds believed that
the divorce granted to Mr. Higgins had not been made
absolute ? "
"2. Should I have directed the jury that, if they found the
accused did hold such a belief bona fide and on reasonable
grounds, the verdict should be not guilty ? "
The Full Court of Victoria (Mann C.J., Macfarlan and
Gavan Duffy JJ.) held that such a belief would be a defence,

BIGAMY AND MENS REA

603
provided the facts were sufficient, if true, to establish that the
woman's former marriage still subsisted. The Full Court,
however, considered it was not confined to the Special Case,
and on looking at the transcript of the evidence at the trial,
held there was no evidence on which the jury could find that
the prisoner held the belief expressed in the verdict, and
affirmed the conviction. On an appeal by special leave to the
High Court, consisting of Latham C.J., Rich, Dixon, Starke
and Evatt JJ., it was held that the Full Court was not at
liberty to go outside the Special Case, and that the verdict of
the jury amounted to an acquittal.
Section 61 of the Victorian Crimes Act, 1928, is in similar
terms to 24 and 25 Victoria cap. ioo, section 57, and
provides :" 6i. 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,
and shall be liable to imprisonment for a term of not more
than five years. Nothing 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
continually 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 the
marriage; or to any person whose marriage at such time has
been declared void by the sentence of any court of competent
jurisdiction."
The foundation of the decisions upon this and similar
enactments is, of course, Tolson's Case (1889, 23 Q.B.D., 168).
There the principle that the accused is not guilty if he had an
honest and reasonable belief in the existence of facts, which,
if they had really existed, would have made the act for which
he is indicted an innocent act, was held to be applicable where
the indictment was for the statutory offence of bigamy. In
Reg. v. McMahon (1891, 17 VictorianL.R., 335) the principle

THE JOURNAL OF CRIMINAL LAW

of Tolson's Case was followed by the Victorian Full Court,
and it was held that on a presentment for bigamy, evidence
was admissible to show that before the second marriage a
statement had been made to the prisoner by his alleged first
wife from which he might infer that she had a husband living
at the time of his marriage to her. In Reg. v. Adams (x892,
18 Vict. L.R., 566) the Full Court said: "If a prisoner have a
bona fide belief, upon reasonable grounds, of a fact which
would have rendered her first marriage invalid, that was a
permissible subject for the consideration of a jury, and was
evidence proper to be submitted to a jury, upon which,
if the jury believed in the prisoner's bona fide belief in the
existence of the fact, they would be justified in finding the
prisoner not guilty, as there was no mens rea in the prisoner."
In 1921, however, Wheat's Case (1921, 2 K.B., 119)
was decided by five judges (Bray, Avory, Shearman, Salter,
and Greer JJ.) sitting as a Court of Criminal Appeal. It
was unanimously held that it was no defence in law to an
indictment for bigamy that the prisoner, at the time of the
alleged bigamous marriage, believed, in good faith and on
reasonable grounds, that he had been divorced from the bond
of his first marriage. That decision appears to be quite
inconsistent with Tolson's Case, but Professor Stallybrass,
in an article in 52 L.Q.R., 6o, considered that the two decisions
were "perfectly reconcilable ". Mr. J. W. C. Turner in an
article in 6 Cambridge Law Journal at p. 31, and Mr. R. M.
Jackson in an article in the same volume at p. 83, both treat
Wheat's Case as good law. Although some doubt was held,
seemingly, by the editors of Stephen's Digest of the Criminal
Law (7th ed., p. 260, n. 7), the editors of the latest edition of
Russell on Crime (9 th ed., vol. i, p. 687) adopt the same attitude
as the three gentlemen just mentioned. That view has not
been accepted in all the Dominions, however, for in
R. v. Carswell (1926, N.Z.L.R., 321) the New Zealand Full
Court, by a majority of five judges to four, declined to
follow Wheat's Case, and it was doubted by the South
Australian Full Court in R. v. Kennedy (1923, S.A.S.R., 183).
604

BIGAMY AND MENS REA

6o5
The majority in the High Court (Latham C.J., Rich
and Dixon JJ.) disapproved of the reasoning in Wheat's Case.
As Latham C.J. pointed out, "the explanation of Tolson's
Case given in Wheat's Case is not only different from, but is
inconsistent with, the actual judgments in Tolson's Case.
Wheat's Case seeks to limit the decision in Tolson's Case to
an honest and reasonable belief in death. But the reasoning
in Tolson's Case definitely excludes any such limitation.
It is necessary to choose between Tolson's Case and Wheat's
Case as authorities. The reasoning in Tolson's Case is, I
think, much more satisfactory than that in Wheat's Case."
Dixon J., with whose judgment Rich J. concurred,
pointed out that by Tolson's Case: "The rule accepted was
that in the case alike of an offence at common law and, unless
expressly or impliedly excluded by the enactment, of a
statutory offence, it is a good defence that the accused held
an honest and reasonable belief in the existence of
circumstances, which, if true, would make innocent the act
for which he is charged." He observed: "The truth appears
to be that a reluctance on the part of the Courts has repeatedly
appeared to allow a prisoner to avail himself of a defence
depending simply on his own state of knowledge and belief.
The reluctance is due in great measure, if not entirely, to a
mistrust of the tribunal of fact-the jury. Through a feeling
that, if the law allows such a defence to be submitted to the
jury, prisoners may too readily escape by deposing to conditions
of mind and describing sources of information, matters upon
which their evidence cannot adequately be tested and contradicted, judges have been misled into a failure steadily to
adhere to principle. It is not difficult to understand such
tendencies, but a lack of confidence in the ability of a tribunal
correctly to estimate evidence of states of mind and the like
can never be sufficient ground for excluding from inquiry
the most fundamental element in a rational and humane
legal code."
After setting forth a number of examples, His Honour
proceeded: "These examples appear to me to show that if

6o6
THE JOURNAL OF CRIMINAL LAW,
a rule were adopted which would exclude honest and reasonable belief in the invalidity of the accused's earlier marriage
because the decree nisi dissolving his wife's first marriage had
not been made absolute, it would lead to consequences which
would not only be contrary to principle, but which would be
discreditable to our system of criminal law. It must be
remembered that, although it is going through the ceremony
of marriage that exposes the party to punishment, marriage
in itself is perfectly innocent. The essence of the offence of
bigamy lies in the previous marriage and its continuance.
It is only because of the wrong done by the wickedness of
going through a form of marriage with the knowledge of the
impediment of a prior marriage that the subsequent marriage
merits punishment."
In his dissenting judgment, Starke J. considered that
Wheat's Case was rightly decided and should be followed.
Ie was content to base his approval on the ground suggested
by Professor Stallybrass in 52 L.Q.R., 6o, namely that the
mistake in Wheat's Case was one of law, not of fact. " It
is an honest and reasonable belief in a state of facts which,
if true, would make the act of the alleged offender an innocent
act that exonerates him from criminal culpability," he said.
"A mistake of law would not exonerate him. It was the belief
of the prisoner in her husband's death that led, in Reg. v.
Tolson, to her exoneration. It was a mistake wholly and entirely
of fact " . . " Whether a person is divorced or married is

not a mere matter of fact, as is the question whether a person

is dead or alive. It involves the status or position in law of a
person, which is in truth a conclusion in law and not 'of fact.
It is not a mistake of fact that a person makes in concluding that
marriage exists or does not exist, or that divorce has or has
not been granted, but a mistake in law, and such a mistake does
not exonerate him from criminal culpability."
Like Starke J., Evatt J. considered Wheat's Case was
rightly decided, but he found a different basis for that decision.
In his view, "the principle of the decision is that the application of mens rea to the bigamy enactment is satisfied provided

BIGAMY AND MENS REA

607
that there exists an intention to marry another during the lifetime of a specified person, that person being the one with
whom the defendant has gone through the first ceremony of
marriage."
As will be seen from the passages quoted above, Dixon J.
was led to his decision by considerations of policy going to the
root of the criminal law. Evatt J. was also moved by consideration of public policy, but they were of a kind different
from those which persuaded Dixon J., and they brought him
to a different conclusion. The ground of his dissent is revealed
in the following passages "The bigamy statute is intended to protect the status
which the law confers upon -husband and wife, and it is
addressed to all who occupy such status; in other words, to
every person

'being

married'. ...

The fact that the

prisoner believed that his first wife had never been lawfully
married to him, and therefore was not his wife at the time
of the re-marriage, is immaterial".. . " In my opinion, it
is erroneous to permit further extension of mes rea to such
cases as R. v. Wheat and the present case. The bigamy enactment is of vast importance, because it is designed to protect an
existing status as well as to protect innocent and unsuspecting
persons who intend to assume such a status and, of course,
the children of either union.... To go through so solemn
a ceremony a second time with full knowledge that the
co-partner of the first ceremony is still alive is an act which,
if the status resulting from the first ceremony is still subsisting, is so calculated to injure the persons concerned as
well as the public generally, that the power to inflict punishment is absolutely necessary. Persons acting with the knowledge and intention defined must do so at the peril of its
turning out that the status of marriage still subsists."

Thus, in the Commonwealth of Australia, by Thomas's

Case, and the Dominion of New Zealand, by Carswell's
Case (supra), the limitation on the doctrine of mens rea which
Wheat's Case involves has been rejected. In the Courts of
both these Dominions there has triumphed, in the words of

6o8
THE JOURNAL OF CRIMINAL LAW
Dixon J. in Thomas's Case, the" reasonable doctrine thatwhen
a statute introduced into our criminal code a new offence it
should be understood primafacie to intend the offence to take
its place in a coherent general system, and to be governed by
the established principles of criminal responsibility."