[1971-72] PNGLR 202

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

ERIC HAMILTON BAKER (ALSO KNOWN AS TED BLAIR)

Port Moresby
Williams J

5-7 June 1971

CRIMINAL LAW - Bigamy - Elements of the Offence - No case to answer - Marriage Ordinance 1964 s. 63 (1).[ccxxxv]1

A general principle in criminal proceedings is that the Crown must establish every element of the offence charged. A constituent element of the offence of bigamy created by s. 63 (1) of the Marriage Ordinance 1964 is that at the relevant time the accused must be a “person who is married”. Without sufficient proof by the Crown of that element of the offence, the accused has no case to answer and is entitled to an acquittal.

R. v. Gould [1968] 2 Q.B. 65 referred to.

Motion of No Case to Answer.

The accused was indicted on two counts. Firstly that on the 27th October, 1967, being a person who was married to one Patricia Joan Hodgetts, he went through a form and ceremony of marriage with one Irene Joan Bradford. Secondly that on 27th October, 1967, he wilfully made a false statement in a declaration namely he solemnly and sincerely declared that he was a bachelor.

The first count was an offence under s. 63(1) of the Marriage Ordinance 1964 and the second count was an offence under s. 65(1) of that Ordinance.

At the close of the Crown case, counsel for the accused moved the court that the accused had no case to answer on either counts in the indictment.

Counsel:

Bradshaw, for the Crown.
E. Pratt, for the defendant.

7 June 1971

WILLIAMS J:  The accused is charged with bigamy under s. 63(1) of the Marriage Ordinance 1964.

Put shortly the Crown case is that the accused was, in 1936, lawfully married to one Patricia Joan Hodgetts in Sydney, and that, in 1967, whilst that marriage subsisted the accused went through a form of marriage with one Irene Joan Bradford at Goroka.

At the conclusion of the Crown case, Mr. Pratt for the accused made a submission that there was no case for the accused to answer. This was based upon the proposition that it was for the Crown to prove as an element of the offence that the marriage celebrated in 1936 still subsisted at the time of the alleged offence in 1967. There was evidence that the accused’s spouse of the 1936 marriage was alive in 1967 but, it was contended, there was no evidence or alternatively no sufficient evidence that the 1936 marriage had not been dissolved or annulled.

The Crown contention was that the 1936 marriage had been proved and that in the absence of evidence on the part of the accused that it had been dissolved or annulled or that the accused believed honestly and reasonably that it had then the Crown had discharged its onus.

Reliance was placed by the Crown on certain passages appearing in Archbold’s Criminal Pleading Evidence and Practice.

In the 35th edition of that work it is stated that on a charge of bigamy the following matters must be proved by the prosecution:

(1)      Celebration of the first marriage and identity of the parties.

(2)      Validity of the first marriage.

(3)      That it subsisted at the date of the second marriage.

(4)      Celebration of the second “marriage”.

In paragraph 3795 under the heading “Proof of subsistence of first marriage” it is stated that “the prosecution must prove that the first wife (or husband) was alive at the date of the second marriage” and later that “the defence may prove that the first marriage was validly dissolved before the celebration of the second”. Reference was also made to the notes in Carter’s Criminal Law, 3rd ed., at pp. 338 and 339. It was contended for the Crown that the 1936 marriage having been proved there was a presumption in favour of its continued subsistence unless rebutted by the defence.

Section 63(1) of the Marriage Ordinance provides as follows:

“63(1) Subject to this section, a person who is married shall not go through a form or ceremony of marriage with another person.

Penalty: Imprisonment for five years.”

Sub-section (2) makes provision for a defence in certain circumstances which are not relevant to this case. It seems to me that a constituent element of the offence created by s. 63(1) is that the person charged is at the relevant time a “person who is married” and I can see no reason for a departure from the general principle that in a criminal proceeding it is for the Crown to establish every element of the offence charged.

As to the notes appearing in Archbold it must be kept in mind that s. 57 of the Offences Against the Person Act 1861 which in England creates the statutory offence of bigamy, is different in form from s. 63(1) of the Territory Ordinance. The enacting words are different and the English section contains a lengthy proviso, the third and fourth parts of which make reference to divorce and declarations of voidance. It may have been thought that the third and fourth parts of the proviso created exceptions proof of which rested upon the person charged. However I think that the recent case of Regina v. Gould[ccxxxvi]2 clearly shows that this is not so and also shows that in a charge under s. 57 of the Offences Against the Person Act 1861 it is an element of the offence for the Crown to prove that the first marriage had not been dissolved or annulled, leaving it as a matter of exculpation for the defence to establish that the person charged honestly and reasonably believed otherwise.

The Crown’s alternative contention was that if the Crown bore the onus of proving that the marriage had not been dissolved then there was evidence to discharge this onus. Reliance was placed on the evidence of a divorce petition presented to this Court by the accused several months ago, in which he seeks a dissolution of his 1936 marriage. The petition contains the usual statement that there have been no prior proceedings between the parties for dissolution of the marriage. This petition was presented shortly after the accused had been interviewed by Inspector Giddings in connexion with this charge at which interview the Inspector had expressed the belief that the first marriage still subsisted. The evidence before me is that the accused had left his wife in 1963 and had no contact with her since. The accused has since 1963 been living in the Territory under the assumed name of Ted Blair. His spouse of the 1936 marriage was not called to give evidence. I do not think that I can treat the statement in the petition as being more than an expression of belief on the part of the accused formed some two years after the alleged offence and based upon no disclosed sources. This evidence seems to me to fall short of the proof required on the part of the Crown on this important element of the alleged offence.

I accordingly hold that the accused has no case to answer on count 1 in the indictment and acquit him on that charge.

Mr. Pratt’s submission also extended to the second count in the indictment. The count alleges an offence against s. 65(1) of the Marriage Ordinance in that the accused made a false statement in a declaration made under the Ordinance. This charge involves proof of elements different from those involved in the first count and does not, in my view, require proof on the part of the Crown that the 1936 marriage had been dissolved. I rule that there is a case for the accused to answer on count 2.

Order: No case to answer on count 1; a case to answer on count 2.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the defendant: E. C. Pratt.

[ccxxxv]Infra, at p. 204.
[ccxxxvi][1968] 2 QB. 65.