R v Day

Cases Cited: Bazouni v R [2021] NSWCCA 256
Ivey v Genting Casinos (UK) Ltd (t/as Crockfords) [2018] AC 319
Macleod v The Queen (2003) 214 CLR 230
Peters v R (1998) 192 CLR 493
R v Barton and another [2021] QB 685
R v Ghosh [1982] QB 1053
R v Glenister [1980] 2 NSWLR 597
Spies v The Queen (2000) 201 CLR 203

Texts Cited: Nil.

Category: Procedural rulings

Parties: Rex (Crown)
Mr Titus Emanuel Day (Accused)

Representation: Counsel:
Mr B Hatfield SC (Crown)
Mr T Woods (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
MacDougall & Hydes Lawyers (Accused)

File Number(s): 2020/00194883

Publication restriction: Nil.

REASONS FOR JUDGMENT

(This is an edited version of a judgment delivered ex tempore on 30 June 2025).

1. The accused submits that for the purposes of counts 1–11 and 13–35, being the counts of fraudulent embezzlement by a clerk or servant, contrary to s 157 of the Crimes Act 1900 (NSW), the jury should be directed in terms consistently with the statutory definition of ‘dishonesty’ contained in s 4B of the Crimes Act 1900 (NSW) [1] . That statutory definition reflects the test in common law identified in R v Ghosh [1982] QB 1053 (“Ghosh”).

2. It appears to be common ground that for a statutory offence containing the element of fraudulent conduct, that mental state has been construed as being interchangeable with ‘dishonesty’: R v Glenister (1980) 2 NSWLR 597 (“Glenister”). Glenister was approved by the High Court in this context in Macleod v The Queen (2003) 214 CLR 230 (“Macl**eod”) at [34].

3. The accused says that the key issue in this case is whether the Crown can prove that the accused was ‘dishonest’. That question applies alike to consideration of counts of fraudulent embezzlement by a clerk or servant as it does for the other count 12, which concerns s 192E(1) of the Crimes Act 1900 (NSW), of dishonestly obtaining a financial advantage by deception. This latter offence expressly contains ‘dishonesty’ as an essential element of the offence. The expression ‘dishonesty’ is contained in s 4B.

4. The accused submits that the jury should be directed consistently as to the meaning of ‘dishonestly’ for the fraudulent embezzlement counts and count 12. He submits that there is no difference in substance between the concept of ‘dishonesty’ which underlies both kinds of offences. It would be wrong, or inconvenient, moreover, to give inconsistent directions of law on the concept.

5. The accused’s Counsel drew the Court’s attention to a decision of Button J (with whom Bell P – as the Chief Justice then was – agreed) in Bazouni v R [2021] NSWCCA 256, in which his Honour construed the statutory definition of ‘dishonesty’ in the context of the offence under s 192E(1), that being the same offence for count 12 in this trial. Counsel drew the Court’s attention to the observation of his Honour (at [80]) that, generally, for fraud offences committed in New South Wales, the accused “must be proven to have possessed knowledge about the negative normative judgment of others as to the dishonesty of his or her conduct”.

6. However, as Counsel acknowledges, a fraud offence like s 157 was not the subject of consideration in Bazouni. Notwithstanding this circumstance, the accused submits that if his Honour intended to confine consideration of matters of principle only to an offence against s 192E(1), his Honour could have done so.

7. That submission is unpersuasive. But even if Button J was intending to extend his observation to a statutory offence like s 157, [2] with respect, it was obiter and in my view, is inconsistent with High Court authority.

8. The leading authority in this area is the decision of the High Court in Peters v R (1998) 192 CLR 493 and in particular, the approach of Toohey and Gaudron JJ. That case concerned the federal offence of conspiracy to defraud the Commonwealth. Their Honours emphasised (at [8]), that this statutory offence did not contain, as an essential element, ‘dishonesty’.

9. Nevertheless, Toohey and Gaudron JJ considered the different tests of dishonesty. In doing so, their Honours:

(a) disapproved (at [15]–[19]) of the Ghosh test, which posited that:

“… a jury must first of all decide whether according to ordinary standards of reasonable and honest people what was done was dishonest. …

If it was dishonest by those standards, then the jury must decide whether the defendant must have realised that what he was doing was by those standards dishonest …”

(b) stated (at [18]) that the proper direction is as follows:

“… the proper course is to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and if so, to determine whether on that account, the act was dishonest …”

10. The approach of Toohey and Gaudron JJ in Peters was approved in Macleod by the plurality at [35]–[38] and also McHugh J (at [99] and Callinan J (at [130]).

11. In addition to Macleod, their Honours’ approach in Peters has been applied to another since-repealed NSW statutory offence that use the word ‘fraudulently’, being 176A of the Crimes Act (Spies v The Queen (2000) 201 CLR 203 at [78]-[81]).

12. The accused submits that Macleod was decided before the insertion of s 4B into the Crimes Act. That being so, he submits in effect that the High Court’s construction of fraud in s 157 has been superseded by the statutory definition in s 4B. I disagree. The submission fails to acknowledge that Toohey and Gaudron JJ (at [34]) in Peters and the High Court in Macleod (at [36]) were well aware that the term ‘dishonestly’, in a statutory sense, may be employed in its ordinary meaning or in a special sense; as well as the competing rationales for the different tests of dishonesty in the common law. They specifically disavowed the second limb of Ghosh which has been enacted in the statutory test for dishonesty in the Crimes Act.

13. The accused correctly points out that this approach is different to the NSW offences that do contain the element of ‘dishonesty’. He submits that Parliament cannot have intended a result where the notion of dishonesty is to be proven for one offence in a way that is different to another fraud offence which connotes dishonesty. Contrary to the accused’s submission, had Parliament intended to override the High Court’s reasoning in statutory offences that do not contain dishonesty as an essential element, it would have been expected that it would make plain that intention expressly and not by implication. Further, the accused has not, when presented with the opportunity, adduced any extrinsic material on the argument to suggest that by enacting s 4B, the statutory definition of dishonesty would apply to offences that did not expressly contain that essential element. [3]

14. Although the accused reasonably points to issues of interpretation being resolved by reference to text, context and purpose, nevertheless, in my view, the High Court authority I have referred to is binding and my duty is to apply it.

15. I would also add in passing that different views have been expressed in commentary about the wisdom of the Ghosh test. Even in its homeland, it was abandoned by the Supreme Court of the United Kingdom, albeit in a civil case, in Ivey v Genting Casinos (UK) Ltd (t/as Crockfords) [2018] AC 319 (where the UK Supreme Court assimilated the notion of dishonesty in criminal trials and civil cases.) [4] Moreover, there is no inexorable legislative trend or policy in this country towards enacting the second limb of the Ghosh test. For example, for offences committed after 13 March 2019, the definition of ‘dishonesty’ in offences under the Corporations Act 2001 (Cth) (s 9) omits the second limb of the Ghosh test.

16. I acknowledge that the jury will be directed to the element of fraud**ulent conduct on the s 157 counts in a different way to which it will be directed on the concept of dishonesty on the s 192E count, even though there is a common denotation of dishonesty. It will be expected that they will abide by those directions.

17. The accused finally submits that the test may be material in some cases but immaterial in others. But in my view, that is neither here nor there.

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Endnotes

Section 4B defines ‘dishonest’ as dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people

An available interpretation is that his Honour was limiting his observations to the offences in Part 4AA of the Crimes Act 1900 (NSW).

Such as the offences in Part 4 of the Crimes Act 1900 (NSW).

See also R v Barton and another [2021] QB 685; [1], [105] where the Court confirmed the test as being applicable to criminal cases.