Recent Judicial Decisions
| Author | J. C. Wood |
| Published date | 01 March 1968 |
| Date | 01 March 1968 |
| DOI | http://doi.org/10.1177/0032258X6804100306 |
| Subject Matter | Article |
PROFESSOR
J.
C.
WOOD,
LL.M.
The University of Sheffield
Legal Correspondent of THE POLICE JOURNAL
BIGAMY - BELIEF IN DIVORCE
R. v. Gould, The Times, January 19, 1968 Court of Appeal
The appellant pleaded guilty to bigamy at his trial at the
Inner London quarter sessions. He asked that his plea might be
withdrawn on the ground that he had
an
honest and reasonable
belief that his previous marriage had been dissolved. He believed
that a decree nisi
had
been made absolute. He was not allowed
to change his plea because the deputy chairman regarded himself
as bound by the well known case of R. v. Wheat &Stocks
[1921]
2K.B. 119.
The
Court of Appeal accepted that the deputy chairman was
right in this. .The Court of Appeal itself, however, felt that it
need not follow the earlier decision of the Court of Criminal
Appeal if it came to the conclusion
that
the law
had
been mis-
applied or misunderstood in the earlier case. The question of
law in issue was whether the words of s. 57 of the Offences
Against the Person Act, 1861:
"Whosoever,
being married, shall
marry
any
other
person, during the
life of the
former
husband
or
wife
...
"
were to be oonstrued literally in the absolute sense that a second
marriage ceremony undertaken with a mistaken and honest belief
in its lawfulness would be no defence. The alternative con-
struction was to hold that a statute creating a new offence does
not apply where the mind of the person doing the act in question
was innocent. This last approach was the one adopted in R. v.
Tolson [1889] 23 Q.B.D. 168 where mens rea was held to be a
necessary ingredient of the offence.
In Wheat &Stocks case Tolson was distinguished by the Court
of Criminal Appeal
but
the Court of Appeal felt that in doing so
Tolson's case was misinterpreted and the reasoning used was
fallacious. The same point arose in Australia in Thomas v. The
King (1937) 59
c.L.R.
297. Both Tolson and Wheat &Stocks
were considered
and
the majority thought the two cases incon-
sistent. They followed Tolson and held that amistaken belief,
honestly held, which if true would be a defence was enough. In
March 1968 119
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