R v King
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR. JUSTICE ASHWORTH |
| Judgment Date | 08 October 1963 |
| Judgment citation (vLex) | [1963] EWCA Crim J1008-2 |
| Court | Court of Criminal Appeal |
| Docket Number | No. 812/63 |
| Date | 08 October 1963 |
[1963] EWCA Crim J1008-2
IN THE COURT OF CRIMINAL APPEAL
Royal Courts of Justice
The Lord Chief Justice of England (Lord Parker)
Mr. Justice Ashworth
and
Mr. Justice Hinchcliffe
No. 812/63
MR. I. C. MACLENNAN appeared as Counsel for the Appellant.
MR. H. CASSEL appeared as Counsel for the Crown.
This Appellant was convicted at the County of London Sessions of bigamy and was sentenced to two years' imprisonment. He now appeals on a point of law to this Court against his conviction and also by leave of the Court against his sentence.
The only facts that need to be stated, at any rate at this stage, are as follows: On the 25th July, 1941 the Appellant married his first wife. In June 1946 they separated; there was talk of a divorce; and in fact the marriage was dissolved on the 21st March, 1947. On the 2nd April, 1949 he went through a form of marriage with one Phyllis Nita Olivier, whom I will call the second wife. On the 29th September, 1961 he went through a marriage ceremony with one Agnes Smith. That is the marriage which is said to be the bigamous marriage.
The defence raised was this, that when he married Agnes Smith in December 1961 ho had the honest belief on reasonable grounds that the second marriage, that to Phyllis Nita Olivier, was bigamous in that he thought he had not boon divorced by his first wife until after the 2nd April, 1949. The learned Chairman of London Sessions ruled that that, if proved, was no defence and accordingly the matter was not left to the Jury.
It is an interesting point, but this Court proposes to deal with it shortly. The principles upon which the Courts act in deciding whether the words of a section amount to an absolute prohibition or whether some form of true mens roa is necessary are well set out in the case of Prince which is reported in 2 Court of Crown Cases Reserved in 1875 page 154. That was a case under 24 and 25 Victoria Chapter 100 in which a prisoner was charged with unlawfully taking an unmarried girl under the age of 16 out of the possession and against the will of her father. The Court decided that an honest belief on reasonable grounds that the girl in question was over 16 constituted no defence, in other words in regard to that ingredient of fact, the prisoner took the risk; his honest belief on reasonable grounds that she was over 16 was no defence.
In Tolson's case in 1889 reported at 23 Queen's Bench Division, a Court of Crown Cases Resolved had to consider a case of bigamy. The prisoner in that case claimed that she had an honest belief on reasonable grounds that her husband was no longer alive. The Court by a majority hold that that was a good defence, and applying general principles, they came to what would appear at first sight a different conclusion to that reached in Prince's case. It is unnecessary to go through the reasons upon which they came to their decision, though it is worth mentioning that perhaps the main reason was the consideration of the proviso in relation to a presumption that after seven years the spouse is dead.
The section itself reads as follows: "Whosoever, being married, shall marry any other person, during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony". There follows a proviso that: "Nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty or to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last post, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction".
As I have said, the Court in Tolson's case decided, and this Court will certainly treat themselves as bound by it, that an honest belief on reasonable grounds as to one of the ingredients of fact, namely whether the former husband or wife was alive, is a good defence, and it would be odd if an honest belief on reasonable grounds in regard to the other ingredient of fact, namely being married, which must mean being validly married, could not be a good defence.
That it is possible that different principles can apply to different ingredients of fact in the same section is, the Court thinks, clear from Prince's case itself to which I have referred, because the Court there recognised that although an honest belief on reasonable grounds that the girl was over 16 was no defence, yet an honest belief on reasonable grounds that it was not against the will of the father, to take another ingredient, would be a defence. At the same time, however, it is odd to find in one section containing two ingredients of fact that there is a defence to one and not a defence to the other based on reasonable belief.
The practice heretofore in this country has been for Judges to direct Juries References that if they are satisfied that there was an honest belief on reasonable grounds that the earlier marriage was invalid, they should acquit. The Court has been referred in that connection to several cases, first in 1906 the case of Thomson reported in 70 Justice of the Peace at page 6 where such a direction was given by the then Common Sorjeant, Mr. Bosanquot has also been made to the case of Connatty in 1919 reported in 83 Justice of the Peace page 292 where a similar direction was given by the then Recorder, Sir Forrest Fulton, and coming to more recent times, reference is made to the direction given by Mr. Justice Stroatfoild, in Dolman's case reported in 33 Criminal Appeal Reports page 128 as recently as 1949. That as I have said has been the practice in this country, and indeed has been hold to be right by a strong High Court of Australia in the case of Thomas reported in 1937 59 Commonwealth Law Reports page 279.
The facts in that case were very much the same as here, and it is observed that Latham C.J. in his judgment at page 292 said this: "It is suggested that Tolson's case would admit as an excuse only a mistaken but honest and reasonable belief as to element C-the continued existence of the former husband or wife. It is put that the case may be different if the alleged belief relied upon is a mistaken belief, though honest and reasonable, with respect to A-namely the status of the...
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...R. v. Tolson was decided over eighty years ago. It is accepted as a leading authority in the law of bigamy not only in this country (see R. v. King [1964] 1 Q.B. 285 and R. v. Gould [1968] 2 Q.B. 65) but also in Australia (see Thomas v. R. 59 C.L.R. 279). Moreover, the phrase "an honest a......
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John Arthur Charles Gould
...was not married at the time of the second marriage ceremony (i.e. that element (a) in the offence was lacking) was a good defence. 12In E. v. King (1964 1 Queen's Bench 285) the Court of Criminal Appeal in England followed the decision of the High Court of Australia. The mistake of fact th......
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Criminal Law
...v. Woolridge (1979), 49 C.C.C. (2d) 300 (Sask. Prov. Ct.); cf. R . v. Wheat and Stocks , [1921] 2 K.B. 119 (C.C.A.). 127 R . v. King , [1964] 1 Q.B. 285 (C.A.); cf. R . v. Connatty (1919), 83 J.P. 292 (Recorder); R . v. Dolman , [1949] 1 All E.R. 813 (C.C.A.); R . v. Brinkley (1907), 14 O.L......
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Criminal Law
...v. Woolridge (1979), 49 C.C.C. (2d) 300 (Sask. Prov. Ct.); cf. R . v. Wheat and Stocks , [1921] 2 K.B. 119 (C.C.A.). 127 R . v. King , [1964] 1 Q.B. 285 (C.A.); cf. R . v. Connatty (1919), 83 J.P. 292 (Recorder); R . v. Dolman , [1949] 1 All E.R. 813 (C.C.A.); R . v. Brinkley (1907), 14 O.L......
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Criminal Law
...R. v. Woolridge (1979), 49 C.C.C. (2d) 300 (Sask. Prov. Ct.); cf. R. v. Wheat and Stocks, [1921] 2 K.B. 119 (C.C.A.). 120 R. v. King, [1964] 1 Q.B. 285 (C.A.); cf. R. v. Connatty (1919), 83 J.E 292 (Recorder); R. v. Dolman, [1949] 1 All E.R. 813 (C.C.A.); R. v. Brinkley (1907), 14 O.L.R. 43......
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Recent Judicial Decisions
...followed Tolson and held that amistaken belief,honestly held, which if true would be a defence was enough. InMarch 1968 119 R. v. King [1964] 1 Q.B. 285, this Australian decision wasfollowed by the Court of Criminal Appeal which managed at thesame time to indicate that it did not think its ......