08 April 2014

Over-Sharing

The Canberra Times reports that Father Alec Stevenson (formerly of the Liberal Catholic Church) has faced bigamy charges - presumably under the Marriage Act 1961 (Cth) s 94 - in the ACT Magistrates Court.
Mr Stevenson is now facing two charges of bigamy for re-marrying twice, once in 1974 and again in 2002, but never formally ending his first union.
The migrant came from New Zealand to start a new life in the 1970s, later becoming a priest with the Liberal Catholic Church ... 
He trained as a formal celebrant, presiding over wedding ceremonies on multiple occasions and learning the legal ins and outs of marriage. 
The priest, now 70, is arguing his actions were an honest or reasonable mistake, which is a defence against the Commonwealth crime of bigamy. ... 
In an earlier police interview, Mr Stevenson claimed the woman had told him she was going to get a divorce. He said he had thought coming to Australia meant his new marriage would not conflict with his nuptials in New Zealand, and assumed there would be appropriate ‘‘checks and balances’’ before his later marriages were recognised. 
"I always acted in what I believed to be good faith", he said. "I believed certain things had been done and certain promises had been kept."
Section 94 of the Commonwealth Act provides -
(1) A person who is married shall not go through a form or ceremony of marriage with any person. 
Penalty: Imprisonment for 5 years. 
(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that the person was married when the form or ceremony took place. 
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that: (a) at the time of the alleged offence, the defendant believed that his or her spouse was dead; and (b) the defendant's spouse had been absent from the defendant for such time and in such circumstances as to provide, at the time of the alleged offence, reasonable grounds for presuming that the defendant's spouse was dead. 
(3) For the purposes of subsection (2), proof by a defendant that the defendant's spouse had been continually absent from the defendant for the period of 7 years immediately preceding the date of the alleged offence and that, at the time of the alleged offence, the defendant had no reason to believe that the defendant's spouse had been alive at any time within that period is sufficient proof of the matters referred to in paragraph (2)(b). 
(3A) To avoid doubt, section 9.2 of the Criminal Code (mistake of fact) does not apply in relation to the matters mentioned in subsections (2) and (3). 
(4) A person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married. 
Penalty: Imprisonment for 5 years. 
(5) It is not an offence against this section for a person to go through a form or ceremony of marriage with that person's own spouse. 
(6) In a prosecution for an offence against this section, the spouse of the accused person is a competent and compellable witness for either the prosecution or the defence. 
(7) In a prosecution for an offence against this section, the fact that, at the time of the alleged offence, a person was married shall not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage. 
(7A) In a prosecution for an offence against this section, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have taken place whether in Australia or elsewhere. 
(8) This section operates to the exclusion of any law of a State or Territory making it an offence: (a) for a person who is married to go through a form or ceremony of marriage with any person; or (b) for a person to go through a form or ceremony of marriage with a person who is married; but does not affect the operation of such a law in relation to acts and things done before the commencement of this Act.
State provisions, typically with the defence that one partner has been absent for seven years (i.e. the presumption of death noted in recent posts), include -
  • Crimes Act 1900 (NSW) s 92
  • Crimes Act 1958 (Vic) s 64
  • Criminal Code (Qld) s 360 
  • Criminal Law Consolidation Act 1935 (SA) s 78
In 2010 the Hobart Mercury reported that Nicholas Trikilis appeared in the Hobart Magistrates Court, charged with bigamy.
Trikilis didn't hide the fact he was a bigamist. After filing fake divorce documents to marry his new bride … in April 2008, Trikilis sent his wedding pictures to the Mercury in July of that year to celebrate the special occasion. The happy snap published on July 8, 2008 showed the couple, family and friends in the Royal Tasmanian Botanical Gardens. Ironically, the overdue divorce to his legal wife Kerri Anne Statton is scheduled to be heard in court tomorrow, but has been postponed until the current legal matter is resolved. 
Trikilis, of Coningham, yesterday admitted forgery, using a forged document, giving defective notice of his divorce and giving false information offences all relating to the bigamy charge. The call-centre operator admitted falsely trying to end his marriage to Ms Statton by signing a document on January 30 stating he was already divorced. Trikilis then attended the Family Court in Hobart and presented the false document to Commonwealth public servant Elizabeth Gray on April 18. He married in a civil ceremony on April 26. Two days later, Trikilis filed the false divorce papers along with his marriage papers. 
After being separated for almost a decade, Ms Statton learned of her separated husband's new wife in late 2008. ... The last bigamy case in Hobart, in 2005, involved disgraced former British policeman Richard Eames who, after leaving his wife of 26 years in Britain, married a Tasmanian woman so he could stay in the country. Before sentencing Eames to 21 months' jail with a 12-month non-parole period, magistrate Ian Matterson said the problem with bigamy was that "you end up with two mothers-in-law".
In the same year the Age reported that an unfortunate woman
had been married for less than a month when a shock discovery - that her husband already had a wife - abruptly ended their honeymoon phase.
On Facebook was photographic proof: wedding pictures of her husband with his other bride. The case came before the Family Court as the second wife, known by the pseudonym Ms Hiu, sought an annulment of her marriage. 
She and her husband, known as Mr Ling, married in a civil ceremony in Melbourne in February. But a friend let slip in March that Mr Ling had married a former girlfriend only weeks before. Mr Ling, 27, had gone overseas on Boxing Day last year.
"He had told me he went to China to visit his family", Ms Hiu told the court. Ms Hiu confronted her husband, who confessed to marrying his former girlfriend in Hong Kong.
The marriage was arranged by their parents, he said, and he felt pressured to follow their wishes. 
In a recent judgment in Melbourne, Justice Nahum Mushin granted Ms Hiu a decree of nullity, finding Mr Ling's marriage in Hong Kong was recognised in Australia. He also considered referring the case to prosecutors. Under the Marriage Act, bigamy attracts up to five years in jail. 
"Not only am I entitled to refer the papers in this matter to the appropriate authorities for consideration of whether to prosecute [Mr Ling] for bigamy but I have a duty to do so."
In 2011 in Mathus & Pews [2011] FamCA 56 Dawe J granted nullity. The husband ostensibly remarried in 1986, three years after meeting his second wife. The marriage certificate incorrectly said that he was divorced; he had married his wife in 1975, separated in 1979 but divorced her in 1995 (i.e. 9 years after the supposed marriage to someone else). Other references to too much sharing appear in NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123; Wyatt & Hsin-Lu [2012] FamCA 313; R v Kennedy [1923] SAStRp 25; Thomas v R [1937] HCA 83; (1937) 59 CLR 279