iii) Criminal Intent

The proposition laid down by the Irish Court of Crown Cases Reserved in Rex vs. Panning315 that to constitute the offence of bigamy, the second marriage must have been one which, but for the existence of the previous marriage, would have been a valid marriage, was fully considered in Rex vs. Allen above quoted, and disapproved.

The solemnisation of the second marriage is sufficient to constitute the material element of the crime of bigamy without it being necessary that such second marriage was “consummated” by sexual intercourse: for, according to modern ideas, bigamy is not considered as a sexual offence but an offence against the good order of families and the ground upon which it is punished is the broad one of its involving an outrage upon public decency by the profanation of a solemn ceremony.

(iii) Criminal Intent

The specific intentional element of the crime of bigamy lies in the wilful celebration of a second marriage in the awareness of the subsistence of the previous marriage316 . This criminal intent is negatived by good faith consisting in the honest belief on reasonable grounds on the part of the defendant that the previous marriage no longer subsisted as, for example, owing to the death of the other spouse317 . It is true that the provision of our Code (Section 203) which defines this crime does not require expressly any particular state of mind; "but as the Court for Crown Cases Reserved decided in 1889, by nine judges to five.

“The general principle of Criminal Law that a person cannot be guilty of a crime unless he has a guilty mind, is so fundamental that it must here override the omission of the statute in not expressly including a mental element as an essential requisite in the offence of bigamy”318 .

315 17 Tr C. L. R. 289; 10 Cox 411 316 Carrara, Prog. Parte Speciale, Vol III, para. 1937 317 Carrara, ibid., para. 1942, n. i. 318 Vide Kenny, op. cit., pg 363; Confer also Chaveau et Helie, Vol. II, Part II, pg 235, n. 1676