Defendant's claim to be honest will be credible. But, if the Courtdecides that
the Actions were dishonest, the further question is: •
"Did the Person concerned believe that what he did was dishonest at
the time?"
The QueenslandCourt of Appeal in Australia in the Case of R VS DILLON;
EX PARTE ATTORNEY GENERAL (QLD) (2015) QCA PAGE 155 OR (2016)
1 Qd R 56 (14/194), departed from the Dictum in R VS GHOSH (CITED
SUPRA), when it held inter alia that, “…Queensland Courts must now
construe the Term “Dishonestly” as requiring the Prosecution to prove only
that what the Accused Person did was dishonest by the Standards of
Ordinary Honest People, and to secure a Conviction, the Prosecution need
not prove that the Accused Person must have realized that what he or she
was doing, was Dishonest by the Standards of Ordinary Honest People.”
The Decision in R VS GHOSH (CITED SUPRA) was also criticized in 2017,
and overruled by the United Kingdom’s Supreme Court in the case of IVEY
VS GENTING CASINOS (UK) LTD TRADING AS, CROCKFORDS [2017]
UKSC 67. DELIVERED 25TH OCTOBER 2017, where the Supreme Court
concluded that the Correct Approach is:
•
To determine what the Defendant actually knew of or believed as to
the Facts. Whether the Defendant’s beliefs were reasonable, are not a
Separate Issue – but goes to whether the Beliefs were genuinely held;
To decide whether the Defendant’s Conduct is dishonest by the
•
Standards of Ordinary, Reasonable and Honest People;
•
There is no further Requirement that the Defendant knew or
appreciated that he or she acted Dishonestly.
The Position as a result is that the Court must form a view of what the
Defendant's belief was, of the relevant facts but it is no longer necessary to
consider whether the Defendant concerned, believed that what he did
was dishonest at the time.
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