The Burden of Proof in Bigamy
| Date | 01 September 1958 |
| Author | D. J. MacDougall |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00490.x |
| Published date | 01 September 1958 |
THE
BURDEN OF PROOF
IN
BIGAMY
IT
is
now possible to write a second inglorious chapter
to
a story
that began
in
an earlier issue of this
Review1
It
would be better
if this chapter could have remained unwritten.
In
R.
v.
Bonnor
a
a specially constituted
Full
Court of five judges of the Supreme
Court of Victoria by
a
majority of three
to
two rejected the
principles established in
R.
v.
BroughtmJ
and required a person
accused
of
bigamy
to
prove
on
the balance of probabilities the facts
on
which he relied for exculpation. The two judges who dissented
on
this issue concurred in the actual order for other reasons.
Bonnor contracted
his
first marriage to Alice Wilson in England
in
January
1950
while he was a member
of
the armed forces. This
marriage was not successful. For a time the parties lived apart
and his wife obtained a maintenance order against
him.
He joined
the merchant navy and was assigned to
a
ship
on
the Australian
run.
Prior to his departure the accused and his father had dis-
cussions with the Public Solicitor‘ with the object of obtaining,
possibly during
his
absence, a divorce on the grounds
of
his wife’s
adultery.
In
Australia he met
his
prospective second
‘‘
wife
”
and wrote
to
his father from whom he received a letter which read
:
“
No
need
to
worry over Alice; everything is
all
right and
I
wish you all the
happiness you can get.” Following this letter
in
March
1052
the
accused went through a ceremony of marriage with Patricia Mary
Mackli
and was duly charged with bigamy.
His
defence rested
on
a plea that at the time
of
the second ceremony he believed that
his first mamage
had
been dissolved by a decree of
an
English
The trial judge directed the jury in the following terms:
“Now gentlemen, that is the basis of the defence which
he sets up, that he bona fide believed
on
reasonable grounds
that he was free
to
marry. You have to consider that, and to
ask yourselves whether there is anything in
it
at all. First of
1
Associate Professor Norval Morris,
“
The Burden of Proof in Bigamy
”
(1955)
18
M.L.R.
452.
a
[1957]
Victorian
Reports
227.
3
[1953]
V.L.R.
672.
4
Described
thus
in the report at pp.
245-250.
I
understand that there is no such
official in England and that some person connected with the Law Society’s
legal aid service was probably intcnded.
5
There
W~E
no evidence of the basis on which the English court could have
assumed jurisdiction. In
Fenton
V.
Fenton
[1967] Victorion Reporte 17,
the Victorian Supreme Court rejected
Troqm
V.
Holley
[1953]
P.
2?:.
For
a
commentary thereon see Zelman Cowen,
(1957)
31
Australian Law Journal
8.
Gavan Duffy and O’Brynn
JJ.
point out that
if the decree was not rested
on
a domiciliary jurisdiction it woiild not be
entitled
to
recognition, and if’the accused relied on such
a
divorce it woulil
probably
be
a
mistake of law which would provide no defence;
ibid.,
at
pp.
228
and
236.
Divorce
and
the Domicile
510
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