S a J v The Queen

In the case of S a J v The Queen, the applicant, charged with three counts of using their position as a director dishonestly with the intention of gaining an advantage for someone else, sought leave to appeal against an interlocutory decision. The primary legal issue before the court was the standard of dishonesty required to prove the offence under section 184(2)(a) of the Corporations Act 2001 (Cth). Specifically, the applicant questioned whether the objective test set out in Peters v The Queen (1998) 192 CLR 493, or the combined objective and subjective test in Ghosh [1982] QB 1053, should be applied. Additionally, the applicant sought clarification on whether 'dishonestly' was used in an ordinary or special sense and if there was a requirement to prove subjective awareness of dishonesty.

The court examined the legislative history to determine if the term 'dishonestly' was used in a special sense and considered the parliamentary preference for the Ghosh test in other Commonwealth offences. The court found that the enactment of the Ghosh test in relation to other Commonwealth offences indicated a legislative intention that the Ghosh test should apply to section 184(2)(a). The court also ruled that the expressio unius est exclusio alterius principle supported the applicability of the Ghosh test. The court concluded that no requirement to prove subjective awareness of dishonesty was necessary and granted the applicant leave to appeal. However, the appeal was ultimately dismissed.

The court's final orders were that leave to appeal was granted, but the appeal itself was dismissed. The decision confirmed that the Ghosh test applied to the offence under section 184(2)(a) of the Corporations Act 2001 (Cth) and that there was no requirement to prove subjective awareness of dishonesty.