THE BURDEN OF PROOF IN BIGAMY

Publication Date01 Sep 1955
DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00313.x
AuthorNorval Morris
THE BURDEN
OF
PROOF
IN BIGAMY
ALTHOUGH
the problems of burden of proof are of great importance
both to the theory and to the practical administration of the
criminal law, there is
a
dearth of authority dealing with them.
Nor are even the fundamentals secure-in
Woolmington
the House
of Lords affirmed, with sweeping strokes, that
“no
matter what
the charge or where the trial” the burden of proving the guilt
of the prisoner lies on the prosecution; but the rules
for
applying
this broad principle have not been worked out for several crimes,
and certainly not for the crime of bigamy discussed in this note.
Further, the expression
proof beyond reasonable doubt,”
as
describing the weight of the burden when
it
lies on the prosecution,
which had been put to innumerable juries without challenge,
was recently expressly disapproved by Goddard L.C.J. who in
Summers
recommended alternative formulations which are, with
respect,
no
less free from ambiguity, though they probably
in
practice lighten the burden upon the prosecution.
It
is, however,
clear that in
Woolmington
and later in
lllancini
the Lords had
in
mind
‘‘
proof beyond reasonable doubt
and that there is, there-
fore, conflict between these cases and
Summers.
In
Broughton“
the Full Court of the Victorian Supreme Court
dealt with one aspect of this larger unsettled topic
on
which no
direct authority whatsoever was to be found. Section
61
of the
Victorian Crimes Act,
1928,
closely follows the terms of the last
English statute defining the crime of bigamy, the Offences against
the Person Act,
1861,5
s.
57.
The Victorian statute provides that-
Whosoever being married goes through the form 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 imprison-
ment 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
[1935]
A.C.
462.
(1952)
36
C.A.R.
14.
Fent
cases
on
the burden of proof are examined
by
Glanville Williams, The Direction
to
the
Jury
on
the Burden of Proof”
r19551
Crim.L.R.
464.
Ci942j
A.C.
1.
119531
Victorian Law Reports
572.
24
&
25
Vict.
c.
100.
452

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