Casella v Commissioner of Police, NSW Police Force [2026] NSWSC 1141 | Case summary | Zoe

NSWNSWSC

Casella v Commissioner of Police, NSW Police Force

[2026] NSWSC 1141

Supreme Court of NSW|2026-09-23|Before: Rigg J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-09-23

Before

Rigg J

Catchwords

STATUTORY INTERPRETATION – meaning of “offence involving…dishonesty” for the purposes of the firearms regime – whether includes an offence against s 316(1) of the Crimes Act 1900 (NSW)

Source

Original judgment source is linked above.

Catchwords

STATUTORY INTERPRETATION – meaning of “offence involving…dishonesty” for the purposes of the firearms regime – whether includes an offence against s 316(1) of the Crimes Act 1900 (NSW)

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Casella v Commissioner of Police, NSW Police Force [2026] NSWSC 1141

Hearing dates: 25 March 2026

Date of orders: 23 September 2026

Decision date: 23 September 2026

Jurisdiction: Common Law

Before: Rigg J

Decision: Appeal allowed, matter remitted to NCAT Appeal Panel to be determined according to law

Catchwords: STATUTORY INTERPRETATION – meaning of “offence involving…dishonesty” for the purposes of the firearms regime – whether includes an offence against s 316(1) of the Crimes Act 1900 (NSW)

Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Protection Legislation Amendment Act 2018 (NSW)
Controlled Substances Act 1984 (SA) Corporations Act 2001 (Cth) Crimes Act 1900 (NSW) Criminal Code (Cth) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Gambling Act 2005 (UK) Interpretation Act 1987 (NSW) Legal Profession Act 1987 (NSW) Property Stock and Business Agents Act 2002 (NSW) Security Industry Act 1997 (NSW) Security Industry Regulation 2016 (NSW) Stronger Communities Legislation Amendment (Crimes) Act 2020 (NSW) Stronger Communities Legislation Amendment (Crimes) Bill 2020 (NSW) Treasury Laws Amendment (Strengthening Corporate and Finance Sector Penalties) Act 2019 (Cth)

Cases Cited: Alcan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Barber v Law Society of New South Wales (No 2) [2001] NSWSC 861
Casella v Commissioner of Police, NSW Police Force [2025] NSWCATAD 7
Casella v Commissioner of Police, NSW Police Force [2025] NSWCATAP 191
Chew v The Queen (1992) 173 CLR 626; [1992] HCA 8
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30
Corcoran v Far [2019] NSWSC 1284
Crimes (Public Justice) Amendment Act 1990 (NSW)
Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2018] AC 319; [2017] UKSC 67
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 17
Krecichwost v R [2012] NSWCCA 101; (2012) 88 ACSR 339
Kwok v R [2007] NSWCCA 281; 175 A Crim R 278
Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65
Nguyen v Commissioner of Police [2020] NSWCATOD 150
NSW Crime Commission v Hitchen [2025] NSWSC 1268
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7
Pollard v Director of Public Prosecutions (Cth) (1992) 28 NSWLR 659; (1992) 63 A Crim R 383
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Barton [2021] QB 685; [2020] EWCA Crim 575
R v Crimmins [1959] VR 270
R v Ghosh [1982] QB 1053
R v Lovegrove (1983) 33 SASR 332; (1993) 9 A Crim R 226
SAJ v The Queen (2012) 36 VR 435; [2012] VSCA 243
Sigalla v R [2021] NSWCCA 22; (2021) 257 FLR 148
Sykes v Director of Public Prosecutions [1962] AC 528
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416
Waters v Diesel Holdings Pty Ltd [2024] VSCA 77
Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128

The Appeal Panel referred to and applied the decision of Senior Member Frost in Nguyen v Commissioner of Police [2020] NSWCATOD 150 (“Nguyen”) and rejected the plaintiff’s argument that it was wrongly decided. At [45] the elements of the offence contained in s 316(1) were said to have been stated correctly in Nguyen at [36], namely:
The perpetrator knew or believed that a serious indictable offence had been committed by another person;
The perpetrator knew or believed that he had information that might be of assistance in securing the apprehension, prosecution or conviction of the offender; and
The perpetrator failed without reasonable excuse to bring that information to the attention of the NSW Police Force or other appropriate authority.
Mr Nguyen required a licence under the Security Industry Act 1997 (NSW) to undertake intended work. His licence application was refused by the Security Licensing and Enforcement Directorate of the Commissioner of Police. He applied to the NCAT for administrative review of that determination.
In NCAT reliance was placed by the Commissioner on s 16(1)(a) of the Security Industry Act, which specifies a mandatory refusal ground where the applicant has, within the period of 10 years before the application for the licence, been convicted of an offence prescribed by the regulations. Clause 15(1)(d) of the Security Industry Regulation 2016 (NSW) prescribes an offence involving fraud, dishonesty or stealing as such an offence. Mr Nguyen was convicted in the 10 years prior to his application of a contravention of s 316(1) of the Crimes Act. The Senior Member referred to the decisions in Farah and Barber, and indicated at [36] that the elements of the offence under s 316(1) are as set out above.
The central issue was said to be whether the third element is an act or omission involving dishonesty. Reference was made to the decision of Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 (“Joyce”) in which Deputy President Hennessy was considering whether a conviction for “goods in custody” under s 527C of the Crimes Act was a conviction for an offence “involving fraud, dishonesty or stealing”.
In the current matter, reliance was placed by the Appeal Panel on the following two passages from Nguyen*,* with emphasis added in Nguyen:

There was initially, as between the plaintiff’s first filed written submissions and the written submissions filed in response for the defendant, something of a dispute regarding relevant principles of statutory interpretation including as to the permitted use of headings in legislation. By the filing of the plaintiff’s submissions in reply, and submissions advanced at the hearing, the significance of this issue had diminished and the plaintiff accepted that there was no need to determine ground 2 in the event of success on ground 1.
An appeal from NCAT to this Court lies only by leave, and is further confined by s 83 of the NCAT Act to a question of law alone. Here, the dispute between the parties revolves around the sole legal question outlined above at [6]. Both parties referred to authority to the effect that leave is ordinarily only granted for “matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable”: Corcoran v Far [2019] NSWSC 1284 at [24] (McCallum J), citing Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (per Campbell JA, Young and Meagher JJA agreeing); Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [38] (Griffiths AJA). It was agreed that the question of whether an offence provision involves dishonesty has significance in relation to the regime for regulation of firearms and other licences and potentially other legislation such as the Corporations Act.
Both parties pressed the approach of Bell J in Barber v Law Society of New South Wales (No 2) [2001] NSWSC 861 (“Barber”), adopted by the Appeal Panel in Farah.
It was contended for the plaintiff that the reasons of the Appeal Panel disclosed a binary choice between an excusable failure to disclose, and dishonest concealment. Subsection 316(1) was said on a proper construction to create a positive obligation on members of society to report their knowledge (or belief) of serious indictable offences, and that mere failure to comply with that positive requirement does not necessitate a conclusion of dishonest concealment. The language of the section was submitted to be neutral, without need for the Crown to prove any motive underlying failure to report. The carveout for persons with a reasonable excuse was similarly said to be described in neutral and objective language, which did not necessitate a conclusion that those who cannot bring themselves within it are inexorably dishonest. It was said to highlight that the language of the section criminalises any inexcusable failure to report, regardless of the motive; and there was submitted to be nothing which necessitates or permits a conclusion that the offence is one of dishonesty.
The plaintiff also contended that subsection 316(2) provides “contextual contrast” in construing s 316(1) because it “is one that requires an element of dishonesty in that the failure to report is committed in circumstances where the failure is caused by the obtaining of an advantage”. It was relatedly submitted that “Contextually section 316(2) demonstrates that section 316(1) does not involve an element of dishonesty or else it would not need to be included as a separate and aggravated offence”.
Reference was made to the NSW Law Reform Commission report titled “Review of section 316 of the Crimes Act 1900 New South Wales” (Report No 93, December 1999) and the description therein of the common law offence of misprision of felony at paragraph 2.2 (which was stated to have been replaced by s 316) as consisting of knowing that a felony had been committed, with failure to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time. The deterrent objective of s 316, and more general objective of encouraging public reporting to assist the apprehension, prosecution and conviction of offenders, as described in Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128 at [45], was quoted.
The location of s 316 within Part 7 of the Crimes Act headed “Public justice offences” was submitted to be consistent with this. Various secondary materials were quoted and it was submitted that the objective of the statutory offence was to place a high onus on citizens to aid law enforcement. The design for deterrence against silence was submitted to not be consistent with the conclusion that the silence criminalised is dishonestly formed or maintained.
A number of reasons were advanced in support of the conclusion that the statutory enactment of the duty to disclose is not an offence of dishonesty. These included there not being an express reference to the term “dishonesty”, particularly where the Crimes Act incorporates a definition of the same in s 4B. Interference with the administration of justice, addressed in Division 2 of the Crimes Act, was submitted to include interference by direct involvement and also by not doing something. The plaintiff placed reliance upon the complications involved in determining what is a reasonable excuse as discussed in Taikato v The Queen (1996) 186 CLR 454 at 464; [1996] HCA 28 (“Taikato”). It was submitted that reasonable excuse, whether framed in the negative or otherwise, does not necessarily or always put in issue the (dis)honesty of a party, given its undefined character.
It was submitted for the plaintiff that it can be seen that the absence of reasonable excuse does not necessarily automatically or unavoidably involve an ingredient of dishonesty when one tests how the section may be contravened. A number of examples in relation to this last proposition were raised. One such example was an employer who discovers that their employee has committed a serious indictable offence in financial terms against the employer may not wish to report their employee if an agreement can be reached to have the funds returned or to otherwise avoid unwarranted publicity. This was submitted to be unlikely to constitute a reasonable excuse for not reporting, but not a dishonest reason to fail to report the offence. Reference was made to failures to report offences of violence by victims, such as victims of family and domestic violence. The case of R v Crimmins [1959] VR 270 (“Crimmins”), in the context of the charge of misprision of felony, involved a victim who was shot but refused to identify the name of the shooter. It was noted that s 316(4) now contemplates that various professionals may be entitled to withhold information from the relevant authorities, on the basis of their confidential relationship. It was not until 2020 that the statutory defence now under subsection (1A) (and the saving provision in subsection (1B) preserving other grounds on which a reasonable excuse may be established) was included to clarify some particular circumstances of a reasonable excuse, particularly in relation to victims of sexual or domestic violence offences withholding information for fear of retribution. These examples of possible contravention were submitted to speak against the construction of s 316(1) as an offence involving dishonesty. It was submitted that if an offence can be committed without dishonesty, it cannot be classified without more as an offence involving dishonesty.
Criticism was raised of the Appeal Panel importing the foreign concept of recklessness or substantial risk as a reference point to make out the defence of reasonable excuse, in an artificial and binary way.

The defendant opposed leave on the basis that the plaintiff’s argument lacked merit. It was accepted that the grounds of appeal involve a question of law, and that whether leave is granted would depend substantially on the Court’s view of the merits of one or more of the grounds.
The defendant’s written submissions proceeded on the basis that the plaintiff’s arguments distilled into the proposition that concealing or concealment is not part of the offence in s 316(1) and, therefore, it is not an offence involving dishonesty. It was submitted that the plaintiff’s arguments implicitly accept that, if the offence under s 316(1) involves “concealment”, then it can be more readily characterised as an offence involving dishonesty, which explains the plaintiff’s focus on excluding the explanatory value of the heading to s 316.
It was submitted for the defendant that “knowing concealment” is what s 316 criminalises, and this is an offence involving dishonesty in the ordinary sense of that term. The defendant urged an “elements only” approach in support of its argument that a conviction under s 316 is for an offence involving dishonesty, relying on Farah at [42] and Bell J’s dictum in Barber at [32] where her Honour said, in the context of deciding what was an offence involving dishonesty, “It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry”.
The defendant relied upon the judgment of NCAT in Nguyen at [36]-[37] and endorsed as correct the Appeal Panel’s reliance upon it in this case. Reference was made to other sentencing decisions where the offence is described as one of concealing or concealment.
It was submitted that the respective offences created by subsections 316(1) and (2) do not reflect a legislative intention to create one offence involving “an element of dishonesty” and one that does not.
The common law offences which were replaced by s 316 of the Crimes Act (namely misprision of felony and compounding a felony) were submitted to provide additional contextual and purposive support for a construction of s 316 which includes an act of concealment, and which does not reflect the distinction advanced by the plaintiff which fastens upon “the obtaining of an advantage”. Reference was made to R v Lovegrove (1983) 33 SASR 332; (1993) 9 A Crim R 226 in which Cox J at 336 explained the public policy underlying the common law offence of misprision of felony as “that serious crimes should be discovered to the authorities and not regarded as private matters that may be acceptably kept from public view”, continuing at 336-337 (footnotes omitted):

In Farah the question on appeal to the Appeal Panel of NCAT was whether a money laundering offence, whereby an offender deals with over $10,000 and is at least reckless as to the fact that the money is proceeds of crime, is an “offence involving dishonesty” for the purposes of s 16(1)(a) of the Property Stock and Business Agents Act 2002 (NSW). If so, then Mr Farah was a “disqualified person” for the purposes of s 14(1)(d) of the same Act, and was not eligible to hold a licence he required to work as a real estate agent unless the Director General determined that the offence should be ignored because of the time that had passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.
The Appeal Panel concluded that the tribunal’s decision that Mr Farah was such a disqualified person wrongly took into account his conduct and/or his actual state of mind (derived from sentencing remarks and agreed facts) when he committed the offence, rather than just the offence itself. It was determined that taking into account only the offence itself, that offence did not “involve dishonesty” and the tribunal’s decision was set aside.
In determining that the tribunal had erred in deciding that it was relevant to take into account Mr Farah’s conduct and/or state of mind, beyond that which was necessarily involved in the offence itself, the Appeal Panel preferred at [20] the decision of Bell J in Barber, discussed above, to obiter dicta of Abadee J in Pollard v Director of Public Prosecutions (Cth) (1992) 28 NSWLR 659 at 663; (1992) 63 A Crim R 383 to the effect that if conduct or behaviour answering the description of fraud or dishonesty was involved in the commission of the offence, that is sufficient to make the offence one involving dishonesty.
In additionally concluding that the offence of money laundering is not inherently one of dishonesty, the Appeal Panel referred at [26] to the Macquarie Dictionary online, which defines “dishonesty” as:

The joint position of the parties that I should follow Barber and Farah is consistent with the recent decision of the Victorian Court of Appeal in relation to the Corporations Act in Waters v Diesel Holdings Pty Ltd [2024] VSCA 77 (“Waters”). One director of a company (Mr Baxter) was convicted of offences including causing injury intentionally, contravening a family violence intervention order, contravening a conduct condition of bail and committing an indictable offence whilst on bail. Section 206B(1)(b)(ii) of the Corporations Act provides that a person is disqualified from managing corporations if the person has been “convicted of an offence that involves dishonesty and is punishable by imprisonment for at least 3 months”. As noted earlier “dishonest” is defined in s 9 of the Corporations Act to mean “dishonest according to the standards of ordinary people”. Litigation ensued between Mr Baxter and the company and another director on the basis that such director (Mr Waters) filed documents with the Australian Securities and Investment Commission notifying it that Mr Baxter had ceased to be a director of the company. Mr Waters had also taken action purportedly acting as a director of the company which was in issue with the other director and the company.
The key issue on the application for leave to appeal to the Victorian Court of Appeal was whether Mr Baxter was convicted of any offence that “involves dishonesty” within the meaning of s 206B(1)(b)(ii) of the Corporations Act, such that he was automatically disqualified as a director.
Walker JA, with whom Ferguson CJ and Ginnane AJA agreed, granted leave but dismissed the appeal on the basis that the trial judge was correct to conclude that an offence “involving dishonesty” is one that can be classified as such on the face of the relevant offence provision or common law rule, without consideration of the circumstances of the particular offending: at [7], [78]. It was held that dishonesty does not need to be an element of the offence, but does need to be “inherent” in the offence. The trial judge was found to be correct to conclude that none of the offences of which Mr Baxter was convicted “involved dishonesty” so as to engage the operation of s 206B(1)(b)(ii) of the Corporations Act: at [7], [79].
I do not accept the defendant’s submission that the plaintiff’s argument distils into the contention that concealing or concealment is not part of the offence in s 316(1) and, therefore, it is not an offence involving dishonesty, nor that the plaintiff’s arguments implicitly accept that, if the offence under s 316(1) involves “concealment”, then it can be more readily characterised as an offence involving dishonesty. The argument that the heading to s 316 is misleading as to the true nature of the offence was a very minor aspect of the plaintiff’s argument.
However the defendant’s argument, and the reasoning of the Appeal Panel endorsed on behalf of the defendant, does not move in substance beyond a bare assertion that because the offence is concerned with concealing (information about the commission of a serious indictable offence) it involves dishonesty. It may be that the defendant’s position is that determining whether something involves dishonesty is not complicated, and contravening s 316(1) is plainly dishonest in a way not requiring elaboration. If so, the simple response to this is that it is not accepted. The offence is not plainly one which involves dishonesty, whether or not it is described as involving concealing. However a longer explanation may also be given.
The objective of the task of statutory construction was described by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] as follows:

That process must begin and end with consideration of the statutory text in its context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Alcan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. Context must be regarded “in the first instance” of statutory interpretation and “in its widest sense”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; and has “utility if, and in so far as, it assists in fixing the meaning of the statutory text”: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd at [39].
Such context includes extrinsic materials, which may also be relied upon in accordance with s 34 of the Interpretation Act: see also Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362 at [4]-[5]; NSW Crime Commission v Hitchen [2025] NSWSC 1268 at [89]. Extrinsic materials however cannot displace the meaning of clear statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd at [39].
The relevant context in this case includes the principles and objects of the Firearms Act earlier set out, such as to confirm that firearms possession and use is a “privilege that is conditional on the overriding need to ensure public safety” (s 3(1)(a)), “to improve public safety… by imposing strict controls on the possession and use of firearms” (s 3(1)(b)(i)) and “to provide strict requirements that must be satisfied in relation to licensing firearms and the acquisition and supply of firearms” (s 3(2)(d)).
The consequences of a finding that a person has been convicted of an offence involving dishonesty in the firearms regime supports the need for a plain or clear understanding of what an offence involving dishonesty is. The relevant consequence of conviction of an offence involving dishonesty upon the ability to hold a firearms licence is mandatory disqualification. A licence must not be issued to such a person, and the person is not permitted to apply for a review of a FPO. There are other ways in which an unsuitable person may be excluded from a firearms licence, but the consequence of conviction of an offence involving dishonesty is mandatory. For some people, holding such a licence may be crucial to their livelihood.
As noted, other regulatory regimes also have consequences for conviction of an offence involving dishonesty. Unlike the provision relating to real estate licences considered in Farah, there is no discretion in the firearms regime to ignore the conviction because of the effluxion of time or the triviality of the offence as actually committed. The ramifications are potentially even more significant in connection with Corporations Act disqualification, as s 206B is found in Part 2D.6, which is headed “Disqualification from managing corporations” and commences with s 206A, which creates an offence for disqualified persons to undertake certain acts in managing corporations.
The requirement for an offence “involving dishonesty” may be broader than an offence “of dishonesty”. However a point of distinction from Barber and Farah is that the relevant provision considered in each of those cases referred to an offence “involving dishonesty”, not an offence “involving fraud, dishonesty or stealing”. The addition of fraud and stealing to dishonesty, when they would usually be regarded as quintessential offences of dishonesty, suggests a not expansive concept of a crime involving dishonesty in the Firearms Regulation.
The parties both relied upon the decision of Gaudron J in McCann as to the interpretation of whether conduct was “dishonest” in the context of an exclusion clause in an insurance policy. The clause excluded any liability “brought about by the dishonest or fraudulent act or omission of the assured”. Gaudron J distinguished between an act and an omission at [55] and [56] as follows:

I do not regard the decision of the High Court in McCann as providing assistance in defining an offence involving dishonesty in the Firearms Regulation for the purposes of the Firearms Act, or determining whether a contravention of s 316(1) falls within it. The case highlights how complicated a determination of whether conduct is dishonest can be. Each of the separate judgments of Gleeson CJ, Gaudron, Kirby and Hayne JJ, which found the solicitor’s conduct dishonest for the purposes of the relevant exclusion clause, provided different reasons for doing so. Insofar as part of the solicitor’s conduct involved a failure to act, this was necessarily viewed in the context of multiple other factors such as his occupation as a solicitor, his fiduciary responsibilities, his background conduct and personal need for money at the time of his actions and consequential conflicting interests, his knowledge of the risk of loss, his knowledge of lack of authority to act as he did, the conclusion that he must have known it was his duty to disclose, and the involvement of pretence and collusion in the conscious misuse of power.
The plaintiff’s submission that the definition of dishonesty in s 4B of the Crimes Act is not incorporated in the s 316 offence provision says no more than that dishonesty is not an element of the offence. This is not unimportant, but it is not the end of the inquiry. Dishonesty is defined in the Crimes Act and in the Criminal Code because both legislative regimes contain offences which require proof of dishonesty as an element of the offence. This is also so for the offences in the Corporations Act.
For example s 41C of the Crimes Act creates an offence of dishonestly (or by pressure or duress) inducing another person to make a request for access to voluntary assisted dying, or to access voluntary assisted dying. Section 154H of the Crimes Act creates a number of offences of dishonestly interfering, copying or making unique identifiers. A number of fraud related offences contained in Division 2 of Part 4AD of the Crimes Act also require proof of dishonesty.
The common law concept of dishonesty in criminal cases has been the subject of much consideration and this case does not require anything further than alluding to this. The English common law definition of dishonesty was for a long time as established in R v G**hosh [1982] QB 1053 (“Ghosh”), requiring proof of the objective and subjective elements equivalent to the statutory definitions in the abovementioned pieces of NSW and Commonwealth criminal legislation. This is in contrast to the Australian common law test established in Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 (“Peters”) which requires proof of only the single limb of acting dishonestly according to the standards of reasonable and honest people. Ghosh was queried by obiter dicta in Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2018] AC 319; [2017] UKSC 67 in the course of determining that dishonesty is not an element of the offence of cheating at gambling under s 42 of the Gambling Act 2005 (UK). This obiter was followed by the Court of Appeal of England and Wales in R v Barton [2021] QB 685; [2020] EWCA Crim 575.
The current statutory definition of dishonesty in the Corporations Act has been in place since 13 March 2019, by virtue of the Treasury Laws Amendment (Strengthening Corporate and Finance Sector Penalties) Act 2019 (Cth) which simultaneously repealed pre-existing definitions of dishonesty (which employed the two limb subjective and objective test) pertaining to certain offences, namely ss 1041F and 1041G, such that the newly inserted definition applied uniformly across the Act. Before then, in SAJ v The Queen (2012) 36 VR 435; [2012] VSCA 243 the Victorian Court of Appeal held that the then undefined term “dishonesty” in s 184(2) of the Corporations Act was not defined by s 103.3 of the Criminal Code. Nor was it to be taken as otherwise adopting the common law use of the same objective and subjective definition. It was held that “dishonesty” in s 184(2)(a) was not used in any “special sense”, and that the prosecution would be required to prove only dishonesty as assessed by ordinary standards: at [124]-[127]. Similar issues were considered in Kwok v R [2007] NSWCCA 281; 175 A Crim R 278 where the Court of Criminal Appeal reached the inverse conclusion that s 130.3 applied by operation of s 2.2 of the Code thus modifying the Corporations Act definition of dishonesty from the date it took effect (but did not apply retrospectively). Notwithstanding Kwok v R and although it was not apparently raised as an issue at trial nor on appeal, the Court in Krecichwost v R [2012] NSWCCA 101; (2012) 88 ACSR 339 effectively endorsed the trial judge’s direction in relation to the definition of dishonesty for a s 184 offence being that set out in Peters: see at [63], [66].
The distinction between a director acting dishonestly and acting improperly was considered by Dawson J in Chew v The Queen (1992) 173 CLR 626; [1992] HCA 8. The issue of whether “fraudulently” can be used interchangeably with “dishonestly” was considered by the High Court in Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24. The terms “fraud”, “defraud” and “fraudulent” are also used in the Bankruptcy Act 1966 (Cth). The distinction between deception and dishonesty was considered by the Court of Criminal Appeal in Sigalla v R [2021] NSWCCA 22; (2021) 257 FLR 148.
These references to dishonesty in other criminal and quasi-criminal contexts are germane in understanding that there is not necessarily a simple answer to the question of whether a particular offence involves dishonesty. As held in Farah and Waters, there may be offences involving dishonesty that do not contain dishonesty as an element. However in my view it must be abundantly plain in the context of the firearms regime that an offence which does not contain dishonesty as an element has dishonesty inherent within it before it will constitute an “offence involving…dishonesty”.
Section 327(1) of the Crimes Act defines the basic offence of perjury as follows:

Their Honours at [23] described something of the debate regarding whether dishonesty was an element of conspiracy to defraud, concluding at [24] that the offence requires the use of dishonest means or, more precisely, the need for there to be an agreement to use dishonest means. Further, fraud involves an element of dishonesty over and above the use of dishonest means. However as explained dishonesty is not a separate element of that offence, although dishonesty is a characteristic of the means agreed to be employed to effect the fraud.
In the context of the firearms regime, which is based on an offence “involving fraud, dishonesty or stealing”, an offence involving dishonesty must be one which contains dishonesty as an element, or is clearly inherently dishonest – such as the offence of perjury which involves conscious lying. The long history of referring to a contravention of s 316(1) and its common law predecessor as “concealing” an offence, and the use of that word in the heading to s 316, do not establish this. Concealing in this context means no more than not revealing. It is a crime of omission, committed passively. In other circumstances there may be dishonesty associated with concealing – such as by the solicitor in McCann. Another example I raised at the hearing of this matter was that of a police officer (with very well established duties of disclosure of relevant material) who withholds material that exculpates an accused person. An inference may be possibly drawn as to the reason for doing so. There are no such implications arising from the mere contravention of s 316(1) of the Crimes Act.
There is nothing in the reasoning in Nguyen which causes me to doubt the above. I need not make any determination regarding whether receiving stolen property is an offence involving dishonesty. However there is in my view no link explained in Nguyen between the reasoning in Joyce and the different offence provision in s 316. That a criminal offence is not prevented from being described as one involving dishonesty because it is committed by omission, does not explain why such offence does involve dishonesty.
The common law description of the offence of misprision of felony which was replaced by s 316(1) of the Crimes Act, and the legislative history relevant to s 316, and commentary and extrinsic material examining its operation, enhance the argument for the plaintiff that s 316(1) is not an offence which inherently involves dishonesty.
In Sykes the House of Lords answered two questions: whether there is such an offence as misprision of felony, answering that there is; and whether active concealment is an essential ingredient of the offence, answering that it is not.
Lord Denning answered that misprision of felony has been an offence for the last 700 years or more, not always under the name “misprision of felony”, but still an offence that is not obsolete: at 555, 560. In his Lordship’s words “Ever since the days of hue and cry, it has been the duty of a man, who knows that a felony has been committed, to report it”: at 555, 558-589.
Multiple words and phrases had been used historically to describe the element accompanying knowledge of the felony. These included concealment, not-discovery, non-disclosure, “kept secret” and “a mere omission to disclose”: at 558, 563 (Lord Denning) and 573 (Lord Guest).
The House of Lords also emphasised that for an offence of misprision of felony, although the person must have known of the felony, they were not taken to have consented or assented to it, in contrast to other offences such as being an accessory after the fact, compounding a felony, interfering with the course of justice or obstructing police (that is, wilfully misleading a police officer by false information): at 558-589, 561-562 (Lord Denning), 567 (Lord Goddard) and 573 (Lord Guest). Lord Denning further stated at 562-563: “It comes to this, therefore, that these other offences require something active to be done to conceal the crime: whereas misprision requires nothing active. The failure or refusal to disclose the felony is enough”. Active concealment is not required.
A number of the judgments referred to the Victorian Supreme Court’s judgment in Crimmins. Lord Morton of Henryton at 570 cited that case at 272 to the effect that “no doubt cases will arise, from time to time, when the public interest will be best served by the citizen, who fails in this duty, being prosecuted for misprision of felony… The offence lies in the failure to perform the duty to disclose… And so it matters not what induced the citizen…not to do his duty”.
Lord Morris of Borth-y-Gest acknowledged concerns regarding prosecutions for the offence, which had been recently infrequent. Lord Denning indicated at 564 an expectation that privilege (of say a lawyer, doctor or clergyman) would make non-disclosure justified or excused. He continued: “There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student”.
His Lordship stated at 564 that “The judges have not been called upon further to define the just limitations to misprision, but I do not doubt their ability to do so, if called upon”. Lord Goddard stated at 569 the offence should be sparingly prosecuted and that “It is very easy to poke ridicule at the offence and say that it obliges people to inform against a boy stealing an apple. The law is nowadays administered with dignity and common sense. And if it is said it obliges a father to inform against his son, or vice-versa, I would answer that in the case of a really heinous crime be it so”. Lord Morton of Henryton at 570-571 expressed sympathy for a judge who had directed a jury so as to introduce a limitation on the reach of the offence (referring to boys and windfalls), although it was erroneous, but should guide which prosecutions are appropriate.
Lord Morris of Borth-y-Gest at 572 stated:

Section 316 of the Crimes Act was introduced by the Crimes (Public Justice) Amendment Act 1990 (NSW). That Act also abolished the common law offences of misprision of felony and compounding a felony. The offence has been the subject of significant criticism and reform.
In R v Crofts (NSWCCA, unreported, 10 March 1995) Meagher JA observed the section has “many potential difficulties, the chief of which is the meaning of the words ‘without reasonable excuse’”. Gleeson CJ also observed that “depending upon the circumstances of an individual case, it may be extremely difficult to form a judgment as to whether a failure to provide information to the police was ‘without reasonable excuse’”.
The majority of the NSW Law Reform Commission producing the report titled “Review of section 316 of the Crimes Act 1900 New South Wales” (Report No 93, December 1999) recommended the repeal of s 316(1) of the Crimes Act. Although this recommendation was not adopted, aspects of the offence considered to be problematic have contributed to legislative change, and highlight strongly why it is not an offence involving dishonesty. The majority of Commissioners considered that it is not appropriate for the law to impose an obligation on people to report information about serious offences which they know or believe their family members or close friends may have committed: at paragraph 3.46. The minority view was that in certain situations, the legal obligation to report information or beliefs about the commission of serious offences should extend to family members of the principal offender, although the difficulty of enforcing a duty of disclosure in this context was acknowledged.
The Commission received a number of submissions which argued that there are legitimate reasons for not reporting information about serious offences to the police: at paragraph 3.9. These include fear of the offender and a wide range of formal and informal confidential relationships. These reasons are discussed at paragraphs 3.23-3.48. A particular focus of the report was women and children who conceal assaults against them by their partners or parents because of threats of further violence, and people with disabilities living in residential care facilities who are victims of or witnesses to offences committed by workers. Fear of retribution was contemplated as potentially constituting a reasonable excuse.
The Commission found that many members of the community are not aware of the existence of s 316 and do not appreciate that they are under any legal duty to report information or beliefs about serious offences to police. It was expected that children in particular would not necessarily know what to do with information about serious offences committed by family members or friends.
The Commission reported on submissions which distinguished the failure to report relevant information to police from actively impeding the law enforcement process in some way. Contrast was made with other offences in Part 7 of the Crimes Act relating to hindering investigations, making false reports to police, suppressing, destroying or fabricating evidence, perverting the course of justice and interfering with judicial officers, witnesses and jurors, and Part 9 concerning accessorial liability: at paragraphs 3.20-3.22. The report recorded many submissions arguing that punishing people for mere knowledge accompanied by inaction is excessive interference by the state in individual autonomy, and that the other Part 7 and Part 9 offences which address active interference with the criminal justice system adequately cover the field of blameworthy activity in this context. Several submissions and practitioners consulted by the Commission disagreed with the principle which underpins s 316 that people should be legally compelled to “dob in” or inform on each other. While the Commission rejected the submissions suggesting Orwellian “1984 overtones”, it accepted it to be fundamental that the circumstances in which legal duties with criminal sanction for non-compliance must be unambiguously described and apply only where the public interest plainly requires interference with the liberty of the citizen.
In relation to legitimate reasons for not reporting, the report recorded the general submission that it is not appropriate to punish people whose motive for concealment does not involve any dishonesty or any intention to impede police: at paragraphs 3.23-3.24; as well as the complexity of professional and other relationships.
The Commission expressed the view that the benefits derived from people obtaining medical advice, treatment and counselling outweigh the policy function of s 316: at paragraph 3.39. The then recent amendments to s 316 were found not to have removed the technical possibility of prosecution which may hamper the provision of health services. Further, the Commission said informal confidential relationships have reasons for preservation: at paragraph 3.46. Information about serious offending was described as being disclosed in the context of a wide range of valuable informal confidential relationships which do not fall within any identifiable category.
The Commission reported at paragraph 3.51 that the definition of “serious offence” technically encompasses a wide range of trivial offences, such as stealing a chocolate bar or a bicycle. The Commission expressed the view that the community would not expect citizens to report such offences to police, and the reporting obligation is an absurdity which brings the criminal law into disrepute with the community in this respect.
Amendments subsequent to the plaintiff’s offending highlight the breadth of the offending potentially covered by the section at the time he contravened it. The section was amended in 2018 by the Community Protection Legislation Amendment Act 2018 (NSW). Schedule 2.2[1] of that amending Act substituted subsections (1) and (2), replacing the word “person” with “adult” to provide the offence could only be committed by an adult. “Adult” is defined in s 311 (which applies to Part 7, which contains s 316) as meaning a person who is of or above the age of 18 years. That amending Act also amended the maximum penalties applicable.
The section was amended again in 2020 by the Stronger Communities Legislation Amendment (Crimes) Act 2020 (NSW). Schedule 1.4[1] of that amending Act inserted new subsections (1A) and (1B) into s 316, and schedule 1.4[2] inserted consequential definitions of “domestic violence offence” and “sexual offence” into subsection (6).
In the Second Reading Speech in the NSW Legislative Assembly (the house in which the Stronger Communities Legislation Amendment (Crimes) Bill 2020 (NSW) was first introduced), the then Attorney General relevantly said the following in relation to the amendments made by schedule 1.4:

This legislative reform confirms the lack of clarity as to whether, at the time the plaintiff offended, there was any reasonable excuse in refusing to report one’s own or another adult’s experience of sexual assault which was wished to be kept private by the victim. The legislation as amended does not extend to victims who are not adults, such that there is lack of clarity as to whether, for example, a parent respecting the wishes of their 16 year old child to not report a sexual assault would have a reasonable excuse.
I accept the argument for the plaintiff that the statements in the judgments of the High Court in Taikato regarding “reasonable excuse” (in a different statutory context) contribute to understanding the potential for imprecision regarding what will and will not be prosecuted and establish liability under s 316(1). Although the defendant submits that this is irrelevant because the plaintiff was in fact convicted, it is an important observation about the lack of certainty as to what offending may be covered by this offence provision, and the lack of any pointer to dishonesty in such conduct assuming it should be criminalised.
The fundamental point of significance advanced for the plaintiff is that s 316(1) may be contravened without dishonesty, and therefore it is not an offence which inherently involves dishonesty. Although Lord Denning expressed hope in Sykes that the employer who takes a benevolent attitude towards an employee stealing some money would not be prosecuted, the plaintiff’s argument is correct that it is not clear that this would amount to a reasonable excuse under s 316(1). As raised by the NSW Law Reform Commission, the theft of something of very low value (perhaps even where committed by a child) could be regarded in the same way. Every adult who has seen a physical fight, or a person supplying a friend at a party with a small amount of a prohibited drug, and not reported this to the authorities is potentially guilty of contravening s 316(1).
Whether the NSW Law Reform Commission is correct to have suggested that fear of retribution may amount to a reasonable excuse, there are no doubt many situations far less clear than this which reasonable members of the community would not conclude warrant prosecution, far less a label of dishonesty. Elderly residents in aged care facilities featured heavily in the Commission’s report. It is not difficult to envisage a scenario of such a person who has knowledge of criminal activity by a carer and is not squarely fearful of retributive violence if they report it; but are old, vulnerable and dependent, and not keen to disturb the status quo. Quite apart from those who deliberately determine to not report what they regard as other people’s private business (which is not necessarily an attitude of dishonesty), people who do not report because they are simply apathetic, or have a lack of confidence that the police can do anything, or through inertia, may technically breach the section. Prisoners witnessing guard brutality may fall into the same category. Although children are now exempt, there are many members of the adult population who suffer from disability or otherwise live lives which would indicate no sign of dishonesty in not reporting information or belief they come to regarding a serious indictable offence. When this was raised during the hearing, counsel for the defendant submitted that such scenarios would be assessed on a case‑by‑case basis to determine whether there was a reasonable excuse. The point is that it is not clear these circumstances do give rise to a reasonable excuse. As noted earlier, it was accepted that a person may be guilty although they are unaware of the requirement to report (which the Law Reform Commission found to be quite prevalent).
I do not regard the carve-out for reasonable excuse in this offence provision as creating a situation where all those who cannot invoke it have acted dishonestly.
I do not regard as forceful the plaintiff’s statutory arguments regarding the contrast between s 316(1) and (2). Although it may be more comfortably observed with a crime of omission that receipt of a benefit is an indicator of dishonesty, I do not regard this aspect of the legislation as indicating a statutory intention to create one offence that involves dishonesty and one that does not. I do not regard the placement of s 316(1) where it is in the Crimes Act as advancing the plaintiff’s argument, although the offence may be contrasted with many other public justice offences which could more readily be taken as involving dishonesty.
The policy objectives of s 316(1) to encourage reporting are clear. They do not say anything of necessity as to the honesty of a person who does not comply with that attempted social moulding.

Casella v Commissioner of Police, NSW Police Force

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Background and application now before the Court

Nature and grounds of appeal

Legislative provisions

Appeal Panel’s reasoning

The appeal

Plaintiff’s submissions

Defendant’s submissions

Consideration

Conclusion and orders

Amendments

25 September 2026

Parties

Legislation Cited (24)

Cases Cited (40)