ABSTRACT
The first issue has been resolutely settled by the decision in Feely.37 Whether the defendant is dishonest is a matter of fact for the jury; after all, the whole reason why the CLRC chose the word ‘dishonestly’ in preference to ‘fraudulently’ was because they thought that it was a word more easily understood by a jury.38 The second issue is more difficult to resolve as it relates to how a society decides to criminalise behaviour. If it is to be determined in terms of the harm done, then it will be irrelevant how the defendant actually viewed his own behaviour; his state of mind must be tested objectively, with reference to reasonable norms of behaviour. On the other hand, if we punish behaviour only where the defendant himself is considered blameworthy or evil, then his state of mind must be tested subjectively.39 The emphasis of s 2(1) is subjective, reflecting the approach taken by the CLRC that it is the defendant’s own state of mind which is paramount. Where s 2(1) does not apply, the law has sought a compromise between these two approaches and the leading case is now Ghosh, which will be discussed below.
