'Ostrowski v Bi owstty, | SPS ay - [1937] HCA 83 - HCA 1937 case summary

'Ostrowski v Bi owstty, | SPS ay - [1937] HCA 83 - HCA 1937 case summary — Zoe

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of authority from Tolson's Case (2) establishing the proposition that the general rule in all the graver class of crimes (Laws of England, 2nd ed., vol. 9, p. 15) is that the accused is not guilty if he had an honest and reasonable belief in the existence of facts which, if they had really existed, would have made his act both legally and morally innocent. In Tolson's Case (2) this principle was applied to a charge of bigamy and it was held that a woman charged with bigamy was not guilty, the jury having found that at the time of the second marriage she in good faith and on reasonable grounds believed her husband to be dead. Tolson's Case (2) was considered by fifteen judges, and a majority consisting of nine judges approved the proposition which I have stated. This proposition was treated, not as depending on any special legislative provisions with respect to bigamy. but as a statement of a well-established common-law principle applied in this case to an offence against a statute. In stating this principle, Mr. Justice Wills said : - " There is no doubt that under the circumstances the prisoner falls within the very words of the statute. She, being married, married another person during the life of her former husband, and. when she did so, he had not been continually absent from her for the space of seven years last past. It is, however, undoubtedly a principle of English criminal law, that ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent. 'It is a principle of natural justice,' says Lord Kenyon C.J., ' that actus non facit reum, nisi mens sit rea. The intent and act must both concur to constitute the crime': Fowler v. Padget (3). The guilty intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong. That intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may coexist with respect to the same deed" (4). Cave J. says : - " At common law an honest and reasonable belief in the existence

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Higgins on 13th January 1916. After some years of cohabitation they parted, and Mrs. Higgins obtained employment as housekeeper for the prisoner, who now seeks special leave to appeal from a decision of the Supreme Court confirming a conviction of bigamy. He was then a widower with young children. After some time Mrs. Higgins and he went through the ceremony of marriage. She assured him that her husband. William Higgins, was dead. This was untrue. Thus, Mrs. Higgins committed bigamy. If the prisoner had been aware that her former marriage had not been disso'ved by death or otherwise, his participation would apparently have amounted to aiding and abetting the commission of that crime and he would have been liable to prosecution as a principal. At all events, in R. v. Thomas Wheat and Marion Stocks (1) Marion Stocks, an unmarried woman, was convicted of bigamy because she went through the ceremony of marriage with Thomas Wheat. a married man, and her conviction was affirmed by the Court of Criminal Appeal. However, when the prisoner went through the form of marriage with Mrs. Higgins he believed her story of the death of her husband to be true. This ceremony took place on 12th June 1925. On 10th January 1928 William Higgins filed a petition for dissolution of marriage with his wife on the ground of adultery. He joined the prisoner as co-respondent. When the citation was served upon the prisoner, Mrs. Higgins admitted to him that she had lied to him about the death of her previous husband. A decree nisi was pronounced in the suit on 27th April 1928. The prisoner was present in court when this was done. On 25th October 1929 Mrs. Higgins and the prisoner again went through the ceremony of marriage. He believed that her marriage had then been effectually dissolved. This was correct; the decree had been made absolute on 28th July 1928. After Mrs. Higgins had in this manner become the lawful wife of the prisoner, she appears to have formed a propensity for denying the status to which previously she had laid groundless claims. She told her husband repeatedly that she was not his wife, that she had not been divorced because there had not been an entry in the court. At length, still protesting that her marriage

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may be that he did suppose the existence and materiality of some circumstance, which either did not exist, or which, though existing, was not material. In such case the act may be said to be misadvised, with respect to such imagined circumstance: and it may be said that there has been an erroneous supposition, or a mis-swpposal in the case." Under the heading of " Cases unmeet for punishment." Bentham puts " the case of mis-supposal ; where, although he may know of the tendency the act has to produce that degree of mischief, he supposes it, though mistakenly, to be attended with some circum- stance, or set of circumstances, which, if it had been attended with, it would either not have been productive of that mischief, or have been productive of such or greater degree of good, as has determined the legislature in such a case not to make it penal." Apart from the terms employed by Bentham, this speculative treatment of principle has been taken to accord with the actual state of English law. Sir John Salmond, in dealing with mistake of fact (Jurisprudence, 9th ed. (1937), sec. 147, p. 561), says : - ' In the criminal law, on the other hand, the matter is otherwise and it is there that the contrast between mistake of law and mistake of fact finds its true application. Absolute criminal responsibility for a mistake of fact is quite exceptional." On the side of history, the development of the doctrine has not received any full, or perhaps adequate, treatment. For the most part, writers are content to begin with the decision given in 1639 that an honest and reasonable belief that the victim was a burglar was a sufficient justification for homicide, although the belief was in fact mistaken (RB. v. Levett (1)). This case is mentioned by Sir William Holdsworth, whose account of the later history of the mental element in crime will be found in Holdsworth's History of English Law, vol. 8, pp. 443 et seq. Sir James Fitzjames Stephen (History of the Criminal Law (1883), vol. 2, p. 117), after saying that the effect of ignorance or mistake as to a particular matter of fact connected with an alleged offence is a matter which varies according to the definition of

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Unfortunately the fool of an Act says ' compassing the death of the heir apparent.' There's not a word about mistake, or not knowing, or having no notion, or not being there. There should be of course ; but there isn't. That's the slovenly way in which these Acts are drawn." Against such a view, however, there stood the much more reasonable doctrine that when a statute introduced into our criminal code a new offence it should be understood prima facie to intend the offence to take its place in a coherent general system and to be governed by the established principles of criminal responsibility. Tolson's Case (1) was taken to reaffirm and finally to establish that a general doctrine of the common law existed opposed to what I may call the principles of the Mikado. It was, indeed. a decision that a contrary presumption was applicable alike to offences created by statute and to crimes existing at common law. The rule accepted was that in the case alike of an offence at common law and, unless expressly or impliedly excluded by the enactment, of a statutory offence, it is a good defence that the accused held an honest and reasonable belief in the existence of circumstances which, if true, would make innocent the act for which he is charged. Thus, in Bank of New South Wales v. Piper (2) the principle was stated as indisputable by Sir Richard Couch in the course of the judgment of the Privy Council. Speaking of a New South Wales enactment penalizing sales of stock subject to a lien, he said : - * It was strongly urged by the respondent's counsel that in order to the constitution of a crime, whether common law or statutory, there must be mens rea on the part of the accused, and that he may avoid conviction by showing that such mens rea did not exist. That is a proposition which their Lordships do not desire to dispute ; but the questions whether a particular intent is made an element of the statutory crime, and when that is not the case, whether there was an absence of mens rea in the accused, are questions entirely different, and depend upon different considerations. In cases when the statute requires a motive to be proved as an essential element of the crime, the prosecution must fail if it is not proved. On the other hand, the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which,

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if true, would make the act charged against him innocent. The ease of Sherras v. De Rutzen (1), where the conviction of a publican for the offence of selling drink to a constable on duty was set aside by the court because the accused believed and had reasonable grounds for the belief that the constable was not on duty at the time is an illustration of its absence" (2). This doctrine was adopted in the Supreme Court of Victoria in R. v. McMahon (3) and in R. v. Adams (4), cases of bigamy not unlike the present, and in Marshall v. Foster (5). In this court it had been enunciated by Griffith C.J. in Hardgrave v. The King (6) as follows : - ' The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident. It is also a general rule that a person who does an act under reasonable misapprehension of fact is not criminally responsible for it even if the facts which he believed did not exist. I do not think the first tule has ever been excluded by any statute." No doubt, in the application of the principle of interpretation to modern statutes, particularly those dealing with police and social and industrial regulation, a marked tendency has been exhibited to hold that the prima facie rule has been wholly or partly rebutted by indications appearing from the subject matter or character of the legislation. Learned and interesting papers upon the confusing course thus taken by judicial decision, by Mr. R. M. Jackson (Cambridge Law Journal, vol. 6, p. 83) and by Dr. Stallybrass (Law Quarterly Review, vol. 52, p. 60), contain a full treatment of the authorities. See, too, a paper on The Mental Element in Crimes at Common Law by Mr. J. W. C. Turner (Cambridge Law Journal, vol. 6, p. 31). But the general rule has not been and could not be impaired in its application to the general criminal law, to which the crime of bigamy belongs. The rule or rules have been embodied in the three criminal codes of Australia - Queensland, secs. 22 and 24, Tasmania, secs. 12 and 14, and Western Australia, secs. 22 and 24, These provisions, which are in the same terms, state, in my opinion,

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"Tgnorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless know- ledge of the law by the offender is expressly declared to be an element of the offence. But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud (Queensland Criminal Code, sec. 22). '* A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject" (Queensland Criminal Code, sec. 24). Apart from the authority of Wheat's Case (1), the application of these principles to the finding of the jury would present little difficulty. The prisoner knew that Agnes Julia's former husband was alive. He knew that, unless she was effectively divorced, his own marriage with her was a nullity. He rightly supposed that in point of law her divorce was not effective unless it were made absolute, completed, or, as he called it, "entered in the court." According to the jury, he honestly and reasonably supposed this had not been done. Whether it had been done or not was a matter of fact, not law. But, in any case, in the distinction between mistakes of fact and of law, a mistake as to the existence of a - compound event consisting of law and fact is in general one of fact and not a mistake of law. This is brought out by an apposite passage in the judgment of Jessel M.R. in Eaglesfield v. Marquis of Londonderry (2) : - " A misrepresentation of law is this: when you state the facts, and state a conclusion of law, so as to distinguish - between facts and law. The man who knows the facts is taken to know the law; but when you state that as a fact which no doubt involves, as most facts do, a conclusion of law, there is still a state- ment of fact and not a statement of law. Suppose a man is asked by a tradesman whether he can give credit to a lady, and the answer

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that the man who gave that answer knew that the lady had gone through the ceremony of marriage with a man who was believed to be a married man, and that she had been advised that that marriage ceremony was null and void, though it had not been declared so by any court, and it afterwards turned out they were all mistaken, that the first marriage of the man was void, so that the lady was married. He does not tell the tradesman all these facts, but states that she is single. That is a statement of fact. If he had told him the whole story, and all the facts, and said, "Now, you see, the lady is single,' that would have been a misrepre- sentation of law. But the single fact he states, that the lady is unmarried, is a statement of fact, neither more nor less; and it is not the less a statement of fact, that in order to arrive at it you must know more or less of the law. There is not a single fact connected with personal status that does not, more or less, involve a question of law. If you state that a man is the eldest son of a marriage, you state a question of law, because you must know that there has been a valid marriage, and that the man was the first-born son after the marriage, or, in some countries, before. Therefore, to state it is not a representation of fact seems to arise from some confusion of ideas." In Wheat's Case (1), however, a mistake on reasonable grounds as to a dissolution by judicial decree of the prisoner's own prior marriage was said to afford no excuse. The court held upon the facts that the prisoner's mistake could not be found to be reasonable, but went on to state the court's opinion of the legal insufficiency of the ground in any event. Dr. Stallybrass (Law Quarterly Review, vol. 52, p. 65) explains the case as dealing with mistake of law. He says : - " It is sometimes suggested that the authority of R. v. Tolson (2) is impugned by the decision of the Court of Criminal Appeal in R. v. Wheat and Stocks (1), and in R. v. Denyer (3) Lord Hewart certainly seems to give some support to that view. But it is submitted that the two cases are perfectly reconcilable. In Tolson's Case (2) the prisoner's mistake was one of fact (Cp. per Stephen J. (4) ). In Stocks' Case (1) an uneducated

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the Court of Criminal Appeal, the following passage occurs : - "One other case remains to be noticed which was relied on by Mr. Birkett - namely - R. v. Thomson (1), in which the late Common Serjeant directed the jury that if at the time of the second marriage the prisoner bona fide believed that his first marriage was invalid on the ground that the woman he then married had a husband alive at the time he would be entitled to an acquittal. The prisoner was convicted and the question was not further discussed. It is not necessary in the present case to express an opinion on the ruling of the learned Common Serjeant, which was probably based on R. v. Tolson (2), but we doubt if it can be supported consistently with our present decision" (3). It appears to me that either this doubt is ill-founded or else Wheat's Case (4) is contrary to Tolson's Case (2). The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to under- stand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code. No more striking illustrations could be obtained of the consequences of doing so than those supplied by the application of such an exclusion to the crime of bigamy. If upon such a charge the accused were not permitted to exculpate himself by showing that on reasonable grounds he mistakenly believed in facts, which, if true, would make his earlier marriage void, the following cases might occur: (a) The accused, having learned that the woman whom he first married had already been married, might after the most exact inquiries ascertain

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"T honestly and reasonably believed that the court's order making me a bankrupt had not been formally pronounced, or that an order had been made setting aside the bankruptcy or granting me a dis- charge." As in the case of the status of husband and wife, it may always be asserted that a mistake as to the making or not making of a curial order is a mistake of fact. The point of the illustration I have suggested is that the legislature is addressing its commands to all those who in law occupy the status of bankrupt, whatever their belief on that particular point. People can seldom occupy the status of husband or wife, or that of bankrupt. without there being the most cogent reason for supposing that, if they do not know they occupy it, it is due to some negligence or inadvertence. Similarly with aliens. If a law punishes an alien for some action or inaction, is it to be permitted to him to say: "I honestly believed that I had got my certificate of naturalization " 2 It is difficult, of course, to deal generally with such offences, because of the importance of the form of the legislation and the particular policy it may embody. It has been held under the English statute that, if a person assaults a peace officer wearing plain clothes but then in the execution of his duty, the fact that the defendant did not know that the man assaulted was a peace officer is no defence. Bramwell B. expressed the opinion that knowledge is immaterial. This decision has been criticized, but it seems to have been accepted (Roscoe's Criminal Evidence, 15th ed. (1928), at p. 410). But a case more analogous to the present would be an enactment penalizing conduct on the part (say) of an officer of customs. If it said that a customs officer who accepted a present from any person arriving in Australia by ship was guilty of an offence, I can understand that the principle of mens rea might be invoked so as to permit a defence that the officer honestly and reasonably believed that what was handed to him was not a present, or honestly and reasonably believed that the person who gave him the present was not in the class mentioned in the enactment. But I should think it quite impossible for the principle of mens rea to enable a defendant to say: 'At the time of this offence I was under sus- pension, and I honestly and reasonably believed that although I was still acting as an officer, I had been formally dismissed. I therefore believed that I was not an officer to whom the statute was _

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For the reasons I have already suggested, I agree with the decision of Humphreys J. in R. v. Kircaldy (1) and with the approval of this decision by another learned writer (Law Quarterly Review, vol. 51, p. 286). In Kircaldy's Case (1), the facts of which are set out by Dr. Stallybrass and correspond closely to those of the present case, the prisoner who was married to T., and who during the life- time of T. married B., put forward the defence that when he went through the form of marriage with B. he honestly and reasonably believed that his first marriage with T. was void, because T. was then married to someone else. Dr. Stallybrass makes two comments on the decision. One deals with the degree of proof required to show the existence of the first marriage at the time of the second and is beside the present point. His other comment is that the prisoner's mistake was probably one of fact. Again this should be conceded. His final criticism is: "If his bona fide and reason- able belief had been correct he did not marry another during the life of his former wife, for the former 'wife' had never been his wife." I think, with respect, that the only intention relevant to the defence of absence of mens rea is the intention to go through a ceremony, and the intention to do it during the lifetime of the person who is, in law and in fact, married to the defendant at the time of the second marriage. I quite admit that upon this, as upon all questions of applying the mens-rea doctrine to statutes, it is impossible to dogmatize. But I am strongly of opinion that R. v. Wheat (2) finally lays down the intention to which mens rea relates, and that it should be followed. If so, the opinion of Humphreys J. in R. v. Kircaldy (1) is correct. It is quite reconcilable with R. v. Tolson (3), and it is necessitated by the only principle which can explain the main reasoning of the judgment in R. v. Wheat (2). For the same reasons I agree with the learned author who criticizes the decisions in R. vy. Connatty (4) and R. v. Thomson (5), both of which were decisions at nisi prius.

'Ostrowski v Bi owstty, | SPS ay

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