REASONS FOR THE JUDGMENT
It was common ground that the parties’ contract for betting contained an implied term that neither of them will cheat. It would be unwise to attempt a definition of cheating. Its essentials normally involve a deliberate act designed to gain an advantage in the play which is objectively improper given the parameters and rules of the game in question. What amounts to cheating is a jury question. Dishonesty is not a concept that would bring clarity or certainty to a jury’s assessment of whether certain behaviour is or is not cheating.
It is an essential element of Punto Banco that it is a game of pure chance. Mr Ivey staged a carefully planned and executed sting. If he had secretly gained access to the shoe of cards and personally re-arranged them that would be considered cheating. He accomplished the same results by directing the actions of the croupier and tricking her into thinking that what she did was irrelevant. Mr Ivey’s actions were positive steps to fix the deck and therefore constituted cheating.
Dishonesty is included in the definition of some but not all acquisitive criminal offences. R v Ghosh introduced a two-stage test for dishonesty for a jury to apply, with a subjective second leg. Firstly, the jury must ask whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people. If the answer is no, that disposes of the case in favour of the defendant. But if the answer is yes, it must ask, secondly, whether the defendant must have realised that ordinary honest people would so regard his behaviour as dishonest, and he is to be convicted only if the answer to that second question is yes. However, the second leg of the rule adopted in Ghosh has serious problems. The principal objection is that the less a defendant’s standards conform to society’s expectations, the less likely they are to be held criminally responsible for their behaviour. The law should not excuse those who make a mistake about contemporary standards of honesty, a purpose of the criminal law is to set acceptable standards of behaviour.
In civil actions the law has settled on an objective test of dishonesty. There can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution. The second leg of the test propounded in Ghosh does not correctly represent the law and directions based upon it ought no longer to be given. The test of dishonesty is that used in civil actions. The fact-finding tribunal must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.
If cheating at gambling required an additional legal element of dishonesty, it would be satisfied in this case.
