Thomas v R [1937] HCA 83

Thomas v R [1937] HCA 83

An honest and reasonable belief by the accused, albeit mistaken, that a decree nisi in his first wife's prior marriage had not been made absolute (and thus that his own marriage was invalid), is a mistake of fact which, if believed by the jury, constitutes a valid defence to bigamy under sec. 61 of the Crimes Act 1928 (Vict.), and necessitates a verdict of not guilty.

Parties
Applicant: John Henry Thomas; Respondent: The King
Jurisdiction
Australia
Procedural Posture
Criminal / Appeal From the Court of Criminal Appeal of Victoria
Outcome
conviction quashed; applicant acquitted
Legal Topics
Mens Rea, Mistake of Fact, Bigamy, Defence of Honest and Reasonable Belief
Criminal Law Mens Rea Mistake of Fact Bigamy Defence of Honest and Reasonable Belief

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 29 Party arguments 2
Sign in to unlock

Parties

John Henry Thomas

Applicant

The King

Respondent

Procedural Posture

Criminal / Appeal From the Court of Criminal Appeal of Victoria

Legal Issues

  1. 1 Whether an honest and reasonable but mistaken belief by the accused that his prior marriage was invalid constitutes a defence to a charge of bigamy under sec. 61 of the Crimes Act 1928 (Vict.)
  2. 2 Whether the belief that a decree nisi was not made absolute is a mistake of fact or law in the context of bigamy
  3. 3 The distinction and application of mistake of law versus mistake of fact as a criminal defence

Ratio Decidendi

An honest and reasonable belief by the accused, albeit mistaken, that a decree nisi in his first wife's prior marriage had not been made absolute (and thus that his own marriage was invalid), is a mistake of fact which, if believed by the jury, constitutes a valid defence to bigamy under sec. 61 of the Crimes Act 1928 (Vict.), and necessitates a verdict of not guilty.

Court Disposition

conviction quashed; applicant acquitted

Orders

  • Special leave to appeal granted
  • Order of Supreme Court varied by striking out the answer to the second question and substituting the answer: Yes