The United Kingdom’s Supreme Court is not shy about changing course on major legal issues, such as complicity law and (just last week) state immunity. On Wednesday, it dropped another criminal law bombshell. The case in question was a civil dispute between a champion poker player, Phil Ivey, and a London casino, on whether Ivey was entitled to 7.7 million pounds he seemingly won at Baccarat over two days. The issue was whether Ivey’s method, which included tricking the croupier into turning particular cards around and then making plays by relying on his ability to tell which cards had been turned from the pattern on their back, was cheating. The Court upheld lower court rulings in favour of the casino, surprising those who thought it took the case to hold that Ivey’s (undisputed) belief that his play was an honest ‘advantage’ one meant that he was no cheat . Instead, the Court not only found for the casino, but overturned the 1982 Court of Appeal decision, R v Ghosh, that held that criminal dishonesty requires proof that the defendant knew others would regard his or her actions as dishonest. The Supreme Cuurt’s ruling not only reversed thirty-five years of English theft and fraud law, but also seemingly left Ivey to prosecution for criminal cheating (not that any such prosecution is on the cards.)
While Ghosh‘s many fans in the academy are currently working their way through the five stages of grief, some Australian High Court judges may be feeling quite different emotions. In 1998, the High Court allowed an appeal by a Melbourne solicitor, Philip Peters, who allegedly facilitated sham property transactions for a client to hide funds (seemingly from drug dealing) from the tax office. In a complex split judgment, the majority sternly rejected the Ghosh test, holding that it was enough if the prosecution proved that ordinary people regarded the defendant’s actions (in context) as dishonest. The UK Supreme Court’s Ivey judgment seemingly agrees with the Peters approach, albeit without any acknowledgments. Perhaps because the UK Court knew nothing of the Australian judgment (as the correctness of Ghosh was not in issue before it) or maybe it opted not to note that Australia’s apex court got the law ‘right’, in light of the High Court’s repeated recent refusals to follow the law set out by the Supreme Court.
Inter-apex-court relations aside, the UK Supreme Court’s ruling will not have any immediate effect on Australian law. The High Court’s approach already determines both Australia’s common law and how the words ‘dishonesty’ and ‘fraudulently’ are interpreted in Australian statutes (unless those words are used in a mysterious ‘special sense’), with Queensland ditching Ghosh in favour of the High Court approach in 2015. As well, the Ghost test will remain the law for many offences in federal statutes and in the ACT, NSW and South Australia, which deliberately eschewed Peters with the following statutory definition:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
But it is possible that UK shift (accompanied by a lengthy critique of Ghosh much like the High Court’s) may undermine the policy case for such statutory provisions, which have never been much liked by prosecutors or judges. It remains to be seen, though, whether UK academics and lawmakers may seek to reverse the Ivey holding (seemingly reached without full argument before the Supreme Court) by statute.