Published: Tuesday November 28, 2017
One of the most vivid memories of my training was the reasonable person test. The R v Ghosh case (1982) threw up a decision which from that time until now has been the test used in criminal proceedings for proving dishonesty.
In the case a surgeon was alledged to have made false claims for payment for operations, and was charged with theft. His defence was that he was entitled to the sums claimed, and his actions were not dishonest. The judge asked the court to consider the meaning of dishonesty.
He proposed that dishonesty was not a course of conduct but rather a state of the mind. Therefore a jury should firstly apply what is known as the reasonable person test – was the behaviour of the ordinary standard expected of a reasonable and honest people in the circumstances . If it was dishonest by those standards, then the jury must consider whether the defendant themselves must have realised that what he was doing was by those standards dishonesty.
However in the recent case of Ivey v Genting Casinos ( 2017) the 2nd subject element of the test has been redefined and now prove dishonesty it is required to prove that the accused must have realised that what they were doing was, by the standards of a reasonable person, dishonest.
the full ruling text can be accessed here