Section 134(3)(b) of the Criminal Law Consolidation Act 1935 (SA) does not substitute 'misuse of powers' for the element of lack of consent in theft; non-consent remains an essential element that must always be proved. In cases involving a power of attorney, lack of consent is judged by reference both to the instrument and the content of the fiduciary duty. Where the defence raises an honest but mistaken belief in a legal right to act, a direction under s 131(5) is imperative. The proviso will rarely be applied where there are cumulative misdirections on elements of the offence, particularly where the accused gave evidence and the question of dishonesty was closely related to the misdirected elements.
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