CASE COMMENT – What is Dishonestly For? Mistaking the Normativity of an Honesty Claim

If the mental element of a crime required no more than objective fault, then objective mistakes as to the normative standard of honesty, impropriety etc would inculpate. There is a tension here between the doctrine that “ignorance of the criminal law is no excuse” and the constitutional right not to be subject to ex post facto law making. Because evaluations by fact finders about the normative wrongness of conduct (ie the medical operation was normatively well below the average norms of medical care or the conduct was dishonest against the norms of honesty) only become apparent after the fact the defendant is not able to search the published offences to find the actus reus of such an offence, which they must be able to do if the doctrine that ignorance of the criminal law is no excuse is to apply to them. In the case of mistakes about normative standards, when the mental element requires D to have a subjective state of mind in respect to the normative standard, the constitutional right against ex post facto law making takes precedence over the rule that ignorance of the criminal law is no excuse. It is because crimes of negligence such as gross negligence manslaughter do not require D to have subjective fault in relation to the norms that D has failed live up to, that D’s ignorance of those norms is considered to be ignorance of the criminal law per se. Under R v Ghosh what is honest is an objective normative question, but D can make a subjective mistake about the norms of honestly since those norms are not set out in law as is required by the doctrine that “ignorance of the criminal law is no excuse”. The latter doctrine does not excuse ignorance, but that is on the condition that the “law” was “discoverable” (i.e. existed in case law or statute and was online or otherwise published) had D attempted to know it in advance of doing the proscribed act.