R v Dillon; Ex parte Attorney-General

SUPREME COURT OF QUEENSLAND

CITATION: R v Dillon; Ex parte Attorney-General (Qld) [2015] QCA 155

PARTIES: R v DILLON, Graeme Anthony (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 194 of 2014 / DC No 180 of 2014

DIVISION: Court of Appeal

PROCEEDING: Reference under s 668A Criminal Code

ORIGINATING COURT: District Court at Brisbane – Unreported, 23 July 2014

DELIVERED ON: 25 August 2015

DELIVERED AT: Brisbane

HEARING DATE: 30 March 2015

JUDGES: Margaret McMurdo P and Morrison JA and Dalton J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The point of law referred: / “To satisfy the element of dishonesty [in s 408C Criminal Code**] does the Crown have to prove that:** / is answered: “No”.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the respondent was charged with 11 counts of fraud under s 408C Criminal Code (Qld) – where the prosecution case was that he obtained money from a finance company on the basis of a representation that his companies had purchased forklift machines – where the prosecution alleged that at the time of each finance company payment, the forklifts had not been purchased so that he gave the finance company false invoices – where the Attorney-General under s 668A Criminal Code has referred to the Court of Appeal for its consideration and opinion the question of what the Crown have to prove to satisfy the element of dishonesty – where in Macleod, the High Court of Australia held as a necessary element of criminal liability, the prosecution must establish the quality of dishonesty according to ordinary notions – whether the term “dishonestly” in s 408C has its ordinary meaning rather than a special meaning importing that the accused person must obtain the property without a belief in a legal entitlement to it – whether Queensland Courts must now construe the term “dishonestly” in s 408C as requiring the prosecution to prove only that what the accused did was dishonest by the standards of ordinary honest people – whether the prosecution need not prove that the accused person must have realised that what he or she was doing was dishonest by those standards / Crimes Act 1958 (Vic), s 81 / Criminal Code (Qld), s 408C, s 590AA, s 668A / Criminal Code Act 1995 (Cth), s 130.3 / Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, followed / Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24, followed / Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, followed / R v Ghosh [1982] QB 1053; [1982] EWCA Crim 2, not followed / R v Laurie [1987] 2 Qd R 762, distinguished / R v Salvo [1980] VR 401; [1980] VicRp 39, cited / R v White (2002) 135 A Crim R 346; [2002] QCA 477, distinguished

COUNSEL: A W Moynihan QC, with J N Hanna, for the appellant / J J Allen QC, with C M Giarola, for the respondent

SOLICITORS: Director of Public Prosecutions (Commonwealth) for the appellant / Legal Aid Queensland for the respondent

MARGARET McMURDO P: The respondent, Graeme Anthony Dillon, was charged with 11 counts of fraud under s 408C Criminal Code 1899 (Qld). The prosecution case was that he was a director and shareholder of companies which sold and rented used forklifts. He obtained money from a finance company on the basis of a representation that his companies had purchased forklift machines. This was dishonest, the prosecution alleged, because, at the time of each finance company payment, the forklifts had not been purchased so that he gave the finance company false invoices.

The prosecution applied to a District Court judge under s 590AA (1) and (2)(e) Criminal Code for a pre-trial ruling as to what it must prove to satisfy the element of “dishonestly” in s 408C.

The judge found that he was bound by the authorities of this Court to conclude that the term “dishonestly” in s 408C has the meaning given to it in R v Laurie¹ and the cases that follow Laurie, particularly R v White,² that is, that the directions as to the meaning of “dishonesty” in R v Ghosh³ are the appropriate directions to be given to the jury.

The point of law referred

The Attorney-General under s 668A Criminal Code has referred to this Court for its consideration and opinion the following point of law:

“To satisfy the element of dishonesty does the Crown have to prove that:

what the accused person did was dishonest by the standards of ordinary honest people; and

the accused person must have realised that what he or she was doing was dishonest by those standards?”

On 26 June 2015 this Court published its answer and reasons. Later that day, the Court was informed that the primary judge had sent a report under Rule 94 Criminal Practice Rules 1999 (Qld) drawing this Court’s attention to s 130.3 Criminal Code Act 1995 (Cth). Unfortunately, neither this Court nor the parties received the report or gave consideration to s 130.3. In those circumstances the Court immediately vacated its earlier order and gave the parties leave to file submissions as to s 130.3.

The Attorney-General’s contentions

The Attorney-General emphasises that the word “dishonestly” is not defined in the Criminal Code and submits that it takes its meaning from the ordinary sense of the word in the English language.⁴ In Peters v The Queen⁵ the High Court in construing the meaning of “dishonesty” in charges of conspiring to defraud the Commonwealth under s 86(1)(e) and s 86A Crimes Act 1914 (Cth) held that it has its common law or ordinary meaning. The jury should be instructed that the question of dishonesty is to be determined according to the standards of ordinary decent people. The prosecution does not have to prove that the accused person realised that what he or she did was dishonest by the standards of ordinary honest people.⁶

In Macleod v The Queen⁷ the High Court considered s 173 Crimes Act 1900 (NSW) which proscribes a director, officer or member of a body corporate or public company from fraudulently taking or applying to his own use or benefit, or any use or purpose other than that of the body corporate or public company, property of the body corporate or company. The Court held that the term “fraudulently” had the same meaning as “dishonestly”.⁸ As a necessary element of criminal liability, the prosecution must establish the quality of dishonesty according to ordinary notions.⁹ Adopting the reasoning in Peters, it is not necessary that the prosecution establish that the accused person must have realised that the acts in question were dishonest by current standards of ordinary, decent people.¹⁰

In the more recent civil case, Farah Constructions Pty Ltd v Say-Dee Pty Ltd,¹¹ Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ cited Macleod with approval, confirming that in the criminal law of Australia and as a matter of ordinary understanding, a person may act dishonestly judged by the standards of ordinary decent people without appreciating the act is dishonest by those standards.

The Attorney-General contends that the primary judge was wrong in concluding that he was bound to follow this Court’s decisions in Laurie and White which adopted the meaning of “dishonestly” given in Ghosh. The High Court determines the criminal law in Queensland so that Peters and Macleod are binding.¹² Laurie was decided prior to Peters and Macleod. When this Court in White followed Laurie, it did so without reference to Peters and before Macleod was decided. In R v Seymour,¹³ when dismissing a ground of appeal that the Ghosh direction given by the trial judge was inadequate, this Court¹⁴ stated that the directions sufficiently complied with Peters and Macleod. Seymour was recognition by this Court that the Peters meaning of “dishonesty” applied to s 408C.

In his oral submissions, counsel for the Attorney-General rejected a suggestion that he was asking this Court to overturn Laurie and the cases which have followed it. This Court has found that “dishonestly” in s 408C was used in its ordinary sense, not in the special sense as discussed in R v Salvo.¹⁵ Consistent with that conclusion and the reasoning of the High Court in Peters and Macleod, a trial judge instructing a jury as to the meaning of “dishonestly” in s 408C must do so in accordance with Peters and Macleod.¹⁶

In the Attorney-General’s supplementary outline of submissions, counsel pointed out that s 130.3 was enacted after Peters was decided but before Macleod was decided. The definition of “dishonesty” contained in that section, counsel contended, applies only to offences in Ch 7 of the Commonwealth Criminal Code. The terms of s 130.3 do not suggest that the federal parliament intended the definition to apply to all Commonwealth offences of dishonesty: SAJ v The Queen.¹⁷ Commonwealth legislation like s 130.3 cannot affect the construction of Queensland legislation like s 408C of Queensland’s Criminal Code. The appropriate test for determining the meaning of “dishonestly” in s 408C is that set out in Peters and Macleod.

The Attorney-General contends that the question posed in the reference should be answered: “No”.

The respondent’s contentions

The respondent contends the primary judge rightly determined that “dishonestly” in s 408C has the meaning given to it in Laurie and confirmed by subsequent Queensland Court of Criminal Appeal and Court of Appeal authority. To prove the element of dishonesty in s 408C, the prosecution must establish that what the accused person did was dishonest by the standards of ordinary honest people and must have realised that what he or she was doing was dishonest by those standards: Ghosh. The meaning of “dishonestly” in s 408C is a question of statutory construction; it is not the application of the common law so that Peters and Macleod should be distinguished. In those decisions the High Court construed the meaning of “dishonesty” in quite different legislation. In both Peters and Macleod the High Court acknowledged that “dishonesty” may be used in a special sense. This distinction was also noted in SAJ v The Queen¹⁸ where the Victorian Court of Appeal observed that Macleod did not suggest that the Victorian cases dealing with dishonesty in the context of theft were incorrectly decided so that the Victorian Court of Appeal still continued to follow that line of authority despite Peters. Similarly, the long established construction of “dishonestly” in s 408C should continue despite Peters and Macleod.

As the meaning of “dishonestly” in s 408C has a particular meaning acquired as a result of legislative history and Queensland appellate authority, it has a special meaning in the sense discussed in Peters and Macleod. The primary judge was right to conclude that he was bound to follow the Ghosh approach as discussed in Laurie in construing the meaning of “dishonestly” in s 408C. This approach has been followed ever since: see R v Sitek,¹⁹ R v Harvey²⁰ and R v Allard.²¹

The Final Report of the Queensland Criminal Code Review Committee to the Attorney-General, June 1992, stated as to s 398 Criminal Code (stealing), s 408A Criminal Code (unlawful use of a motor vehicle) and s 408C (fraud):

“The meaning of the word “dishonestly” has been considered in many Queensland cases and is now settled. See R v Maher [1987] 1 Qd R 171 at 185-188, R v Laurie [1987] 1 Qd R 762, R v Allard [1998] 2 Qd R 269 and R v Sitek [1988] 2 Qd R 284.”

The Explanatory Notes to the Criminal Code Bill 1995 (Qld) (enacted but never proclaimed) which proposed replacing the then s 408C with a new offence of dishonest appropriation included:

“The concept of dishonesty has been delineated in R v Laurie [1986] 23 A Crim R 219 at 220 and the Bill accepts this definition.”²²

The Report of the Queensland Criminal Code Advisory Working Group to the Attorney-General, July 1996,²³ included nothing to suggest that the proposed provision of dishonest appropriation was intended to alter the established meaning of dishonesty as determined in Ghosh and Laurie.

Nor was there anything in the Explanatory Notes or in the Second Reading Speech²⁴ to the Criminal Law Amendment Bill 1996 (Qld) which became the Criminal Law Amendment Act 1997 (Qld), s 66 of which amended s 408C to reflect its present terms, to suggest the parliament intended to depart from the well accepted meaning of “dishonestly” laid down in Laurie. Where parliament repeats words which have been previously judicially construed, it is taken to intend the words to bear the meaning previously judicially attributed to them.²⁵

Since Peters and Macleod, the Queensland Court of Appeal has continued to construe s 408C in accordance with Laurie: see White; R v Ferreri²⁶ and R v Alwis.²⁷ In Seymour the accused person contended in one of his grounds of appeal that the trial judge’s directions to the jury, which were in accordance with Laurie, were not in accordance with Peters and Macleod. This Court’s comments that the directions sufficiently complied with the requirements set out in Peters and Macleod were dealing specifically with that ground of appeal. In that context, they cannot be construed as holding that Peters and Macleod over-ruled Laurie.

In his supplementary outline of submissions, counsel for the respondent pointed out that s 130.3 of the Commonwealth Criminal Code was considered by the Victorian Court of Appeal in SAJ which concluded that the Peters test of dishonesty was applicable to prove dishonesty under s 184(2)(a) Corporations Act 2001 (Cth). Section 130.3 did not over-rule Peters and Macleod and has no effect on the answer to the point of law referred to this Court.

The respondent contends that the question posed in the reference should be answered: “Yes”.

The legislative history of s 408C Criminal Code

Before directly discussing the question posed in the reference, it is helpful to set out something of the legislative background to the present s 408C so that the provision is understood in full context. The offence of misappropriation of property first became part of the criminal law of Queensland in 1979.²⁸ Its terms differed from the present s 408C but, like the present provision, it was an element of the offence that the accused person acted dishonestly. The provision was introduced because parliament was concerned that alleged offenders were escaping liability for stealing under s 391 Criminal Code as that provision did not apply to things in action.²⁹ The term “dishonestly” was not defined in s 408C or elsewhere in the Criminal Code.

Although a new provision, dishonest appropriation, was included in the Criminal Code 1995³⁰ to replace the original s 408C, that legislation was not proclaimed and did not become law.

Section 408C was extensively amended in 1997.³¹ It has not been amended since and relevantly provides:

“408C Fraud

A person who dishonestly –

applies to his or her own use or for the use of any person –property belonging to another; orproperty belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or

obtains property from any person; or

induces any person to deliver property to any person; or

gains a benefit or advantage, pecuniary or otherwise, for any person; or

causes a detriment, pecuniary or otherwise, to any person; or

induces any person to do any act which the person is lawfully entitled to abstain from doing; or

induces any person to abstain from doing any act which that person is lawfully entitled to do; or

makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;

commits the crime of fraud.

…

For the purposes of this section –

property**,** without limiting the definition of property in section 1, includes credit, service, any benefit or advantage, anything evidencing a right to incur a debt or to recover or receive a benefit, and releases of obligations; and

a person’s act or omission in relation to property may be dishonest even though –he or she is willing to pay for the property; or

(ii)he or she intends to afterward restore the property or to make restitution for the property or to afterwards fulfil his or her obligations or to make good any detriment; or

(ii)an owner or other person consents to doing any act or to making any omission; or

(iv)the mistake is made by another person; and

a person’s act or omission in relation to property is not taken to be dishonest, if when the person does the act or makes the omission, he or she does not know to whom the property belongs and believes on reasonable grounds that the owner can not be discovered by taking reasonable steps, unless the property came into his or her possession or control as trustee or personal representative; and

persons to whom property belongs include the owner, any joint or part owner or owner in common, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it; and

obtain includes to get, gain, receive or acquire in any way; and

if a person obtains property from any person or induces any person to deliver property to any person it is immaterial in either case whether the owner passes or intended to pass ownership in the property or whether he or she intends to pass ownership in the property to any person.”

Conclusion

It is useful to begin this discussion with the case of Ghosh, the source of the meaning of “dishonesty” long adopted in Queensland for the purposes of construing the term “dishonestly” in s 408C. Ghosh, a surgeon, was convicted on four counts under the Theft Act 1968 (UK). He was alleged to have falsely represented that he personally carried out surgery, or that money was due to him or an anaesthetist for the surgery, when in fact the operation was carried out by someone else and/or under the National Health Service provisions. Ghosh claimed that there was no deception; the sums paid were legitimately owing and there was nothing dishonest about his behaviour.³² He appealed, contending that the judge misdirected the jury as to the meaning of “dishonesty”.

After reviewing cases falling into two irreconcilable lines of authority,³³ Lord Lane CJ delivering the judgment of the court considered that dishonesty was something in the mind of the accused person, not something relating to his or her conduct; if the accused person’s mind was honest it could not be deemed dishonest merely because members of the jury would have regarded it as dishonest to embark on that course of conduct.³⁴ Their Honours ultimately concluded:

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.”³⁵

In R v Laurie³⁶ the accused person was charged with stealing a television, alternatively misappropriation of property under s 408C. A jury found him not guilty of stealing but guilty of the alternative offence. The question at trial was whether he honestly believed he was entitled to possession of the television and had the right to give it away. His counsel sought to lead evidence from a psychiatrist to the effect that he functioned in the borderline mentally retarded range of intelligence but the trial judge excluded this evidence. On appeal, Connolly J, with whom McPherson and Derrington JJ agreed, held that the judge correctly directed the jury in terms of Ghosh as to the test of dishonesty, namely that it was subjective but the standard of honesty to be applied was the standard of ordinary honest people. The jury should first determine whether what the accused person did was dishonest by the standards of ordinary honest people. If it was, then they should next consider whether the accused person himself must have realised that what he was doing was by those standards dishonest.³⁷ Expert evidence as to the accused person’s abnormal state of mind was admissible as relevant to the question of dishonesty.³⁸

Since Laurie Queensland courts have consistently adopted the Ghosh approach in directing juries as to the meaning of “dishonestly” in s 408C: see R v Allard³⁹ and R v Sitek.⁴⁰

The respondent’s emphasis on the Explanatory Notes to the Criminal Code Bill 1995 (Qld) in construing the meaning of “dishonestly” in s 408C is misguided. The Criminal Code 1995 (Qld) was enacted but never proclaimed so its proposed new offence of dishonest appropriation, which was in different terms to the present s 408C, was never enacted. The reference in those Explanatory Notes to the concept of dishonesty having been delineated in Laurie do not relate to the present s 408C. It does not assist this Court in construing “dishonestly” in the present s 408C.

The respondent emphasises the presumption that where parliament re-enacts words which have been previously judicially construed in a similar legislative context, parliament is taken to have intended the words to bear the meaning already judicially attributed to them.⁴¹ This presumption does provide some support to the contention that parliament intended the term “dishonestly” in s 408C to have the Ghosh meaning. A real difficulty with that proposition, however, is that parliament enacted s 408C before the High Court of Australia’s decision in Peters which specifically rejected the Ghosh meaning.

In Peters, the accused person was convicted of conspiring to defraud the Commonwealth. The trial judge directed the jury that an element of the offence of conspiracy to defraud was that the prosecution prove that Peters was dishonest in accordance with the Ghosh test. On appeal, Peters contended that the jury should have been instructed to apply a subjective test in accordance with R v Salvo,⁴² that is, that the prosecution had to prove an absence of belief on Peters’ part that he had a legal right to do what he did. Toohey and Gaudron JJ considered that:

“In the ordinary case, the Ghosh test distracts from the true factual issue to be determined; in the unusual case, it conflates what really are two separate questions, namely, whether they are satisfied beyond reasonable doubt that the accused had the knowledge, belief or intention which the prosecution alleges and, if so, whether on that account, the act is to be characterised as dishonest. In either case, the test is likely to confuse rather than assist in deciding whether an act was or was not done dishonestly.”⁴³

Their Honours considered:

“In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge 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. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if “dishonest” is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest [As in Salvo].”⁴⁴

Toohey and Gaudron JJ concluded it was not appropriate for the jury to be instructed in accordance with Ghosh. Nor was it appropriate to direct the jury in terms of Salvo as in that case the statutory provisions made clear that “dishonesty” was being used in a special sense in that it imported that the accused person must obtain the property without any belief that he or she has in law the right to deprive others of it.⁴⁵

In 2000 the Full Court of the Supreme Court of South Australia (Doyle CJ, Nyland and Martin JJ) in the civil case of Glenmont Investments Pty Ltd v O'Loughlin & Ors⁴⁶ discussed whether a transaction was void for illegality as it contravened s 408C. In determining that issue in a civil trial, the trial judge had applied the Ghosh test as to the meaning of “dishonestly” in s 408C. The Full Court noted that the Queensland decisions relied on to support the Ghosh test preceded Peters, adding:

“Strictly speaking Peters does not overrule the Queensland decisions to which we have referred and their Honours in Peters recognised that the statutory context in which the element of dishonesty is involved may affect the interpretation of that requirement. Nevertheless, it appears likely that a future Queensland Court would reject the application of the Ghosh test to s 408C at least to the extent of rejecting the requirement that the prosecution prove that an accused person realised that the conduct was dishonest by the standards of ordinary honest people.”⁴⁷

Section 130.3 of the Commonwealth Criminal Code was introduced in 2000⁴⁸ and provided:

“130.3 Dishonesty

For the purposes of this Chapter, dishonest means:

(a)dishonest according to the standards of ordinary people; and

(b)known by the defendant to be dishonest according to the standards of ordinary people.”

The provision is contained in Ch 7 Commonwealth Criminal Code which is headed “The proper administration of Government.” Chapter 7 concerns theft⁴⁹ and other property offences including receiving, robbery, aggravated robbery and burglary;⁵⁰ fraudulent conduct including obtaining property or a financial advantage by deception;⁵¹ other offences involving fraudulent conduct;⁵² false or misleading statements, information or documents;⁵³ unwarranted demands;⁵⁴ bribery and related offences;⁵⁵ forgery and related offences;⁵⁶ causing harm to, and impersonation and obstruction of, Commonwealth public officials;⁵⁷ and contempt of court and ancillary offences.⁵⁸

In 2003 in Macleod the High Court considered the meaning of “fraudulently” in s 173 Crimes Act 1900 (NSW), (fraudulent application of company property by a director or officer). Gleeson CJ, Gummow and Hayne JJ stated that “fraudulently” in this context meant “dishonestly”,⁵⁹ citing with approval Toohey and Gaudron JJ observations quoted above in Peters.⁶⁰ Their Honours observed that the notion of a claim of right will raise a defence which the prosecution must negative once the accused person has raised the evidential burden.⁶¹ McHugh J⁶² and Callinan J⁶³ also approved the approach taken by Toohey and Gaudron JJ in Peters.

More recently in Farah Constructions Pty Ltd v Say-Dee Pty Ltd⁶⁴ Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, citing Macleod, confirmed:

“As a matter of ordinary understanding, and as reflected in the criminal law in Australia, a person may have acted dishonestly, judged by the standards of ordinary, decent people, without appreciating that the act in question was dishonest by those standards.”

The Attorney-General contends that “dishonestly” in s 408C is used in its ordinary sense whilst the respondent contends it is used in a special sense. The resolution of that question is central to this appeal and requires a consideration of Salvo. The accused person was charged under s 81(1) Crimes Act 1958 (Vic) which provided:

“A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of felony…”.

The offence involved the elements of both “deceit” and “dishonesty”. Fullagar J, with whom Murphy J agreed, considered that the word “dishonestly” in s 81(1) was used in a special sense. In context, “dishonestly” means “with disposition to withhold from a person what is his right” and imports into the offence the element that the actor must obtain the property without any belief that he himself has any legal right to deprive the other of it.⁶⁵ The concept involved in “dishonestly” in s 81(1) is very close to the common law requirement of “intent to defraud” or absence of a claim of right but it is subjective in the sense of an intention to defraud another without any belief in a legal right to do so.⁶⁶ The element imported by the word “dishonestly” in s 81(1) is that the accused person has no belief that he or she has a legal right to deprive the other of the property.⁶⁷ In the circumstances pertaining in Salvo, the prosecution had to negative not a belief that the accused person had a legal right to possession of the car by the deception in fact employed; it had to negative any belief of the accused person that he or she was in all the circumstances legally entitled to deprive the person of possession of the car, that is, that he or she did not believe they had a legal right to deprive the person of possession of the car.⁶⁸

The Salvo approach to the meaning of “dishonestly” in s 81(1) continues to be followed in Victoria: see R v Brow,⁶⁹ R v Bonollo⁷⁰ and R v Todo.⁷¹

In the 2012 Victorian case of SAJ v The Queen,⁷² the accused person was charged with two counts of using the position of a director dishonestly with the intention of directly or indirectly gaining an advantage for another contrary to s 184(2)(a) Corporations Act 2001 (Cth). In determining the meaning of “dishonestly” in s 184(2), Nettle JA noted the distinction between the Peters and Macleod test and the subjective test in Ghosh.⁷³ His Honour observed that some statutory provisions in the Corporations Act and some chapters of the Criminal Code (Cth), including Ch 7 which includes s 130.3, specifically provided that for certain defined purposes “dishonest” was defined according to the Ghosh test.⁷⁴ It was difficult to imagine that parliament intended the Ghosh test to apply to those offences but not to the offence under s 184(2), especially in light of the Explanatory Memorandum to the Bill introducing s 130.3⁷⁵ His Honour concluded, however, that the definition of “dishonest” in those statutory provisions, including s 130.3, were not intended to apply to s 184(2) for the reasons given by Weinberg JA and Davies AJA.⁷⁶

Weinberg JA and Davies AJA noted that, since Salvo, Victorian juries have been directed that “dishonestly” in s 81(1) and like offences means without a belief in a claim of right.⁷⁷ Their Honours referred to Toohey and Gaudron JJ’s rejection in Peters of the Ghosh approach to the meaning of “dishonesty”, noting:

“…their Honours essentially rejected Ghosh as the appropriate test, save in those comparatively rare cases where there was reliance upon some form of moral obloquy as an answer to the charge or charges laid. In such cases, a direction in accordance with at least the first limb of the Ghosh test would be appropriate.⁷⁸

…

Peters, it seems, holds that if there is a question as to whether an act was dishonest “according to ordinary notions” (a somewhat unusual case) then the jury is to be instructed that that issue is to be determined by application of the standards of ordinary reasonable people. If, however, “dishonesty” is used in a “special sense” (as it often will be), the trial judge must direct the jury as to what is, or is not, meant by that word in the particular context in which it appears.”⁷⁹

After discussing Macleod, their Honours concluded that the second limb of the Ghosh test now has no place in the common law of Australia.⁸⁰ Their Honours referred to the applicant’s submission that the Commonwealth parliament had clearly and repeatedly expressed its preference for the Ghosh over the Peters test through the enactment of various provisions in the Criminal Code (Cth) and in the Corporations Act which expressly adopted the Ghosh test. Their Honours also referred to the Explanatory Memorandum to the Bill which was ultimately enacted and introduced s 130.3.⁸¹ The High Court, however, had never suggested that the Victorian cases following Salvo have been incorrectly decided. The law in Victoria is regarded as settled for that distinct type of offence, “given the particular problems associated with offences such as theft and obtaining property by deception.”⁸² In cases where “dishonestly” is to be given its ordinary meaning the jury should be instructed, not in accordance with the Ghosh test but in accordance with Peters, even where dishonesty is a distinct fault element.⁸³ Since Macleod, Peters was clear authority, despite the considerable academic criticism of it, that the test for “dishonesty” in s 184(2)(a) is wholly objective and does not require proof that the accused person was aware that ordinary decent people would view his or her conduct as dishonest. There is nothing in the text or statutory context of s 184(2)(a) to indicate that the word “dishonestly” was used in any “special sense”.⁸⁴

Since Peters and Macleod, Queensland courts have continued to direct juries in accordance with the Ghosh test as to the meaning of “dishonestly” in s 408C: see R v White⁸⁵; R v Ferreri⁸⁶ and R v Alwis.⁸⁷ Until the hearing of this appeal, the only case in this Court concerning s 408C where Peters and Macleod were discussed was R v Seymour.⁸⁸ The accused person appealed against his conviction on 11 counts of fraud with circumstances of aggravation under s 408C on grounds which included that the trial judge, in giving the Ghosh direction, erred in not directing the jury in accordance with Peters and Macleod. This Court⁸⁹ held that the directions sufficiently complied with the requirements set out in Peters and Macleod. It was not argued in Seymour that the Peters meaning of dishonesty should replace the Ghosh meaning of dishonesty in s 408C. Seymour does not assist the Attorney-General’s case.

As both parties rightly contend and as was recognised in SAJ, the definition of dishonesty in s 130.3 Commonwealth Criminal Code, which mirrors the Ghosh test for dishonesty, is of no assistance in determining the test for dishonesty in s 408C of Queensland’s Criminal Code.

It is true that neither Peters, Macleod, SAJ nor Farah Constructions were concerned with the meaning of “dishonestly” in provisions closely akin to s 408C but the same is true of Ghosh and Salvo and the Victorian cases which follow it. It is also true that the meaning of “dishonestly” in s 408C has been well settled in Queensland since 1987 when Laurie was decided. There is no relevant difference between the use of the term “dishonestly” in s 408C as it was originally enacted in 1979 and its use in the present section. The term “dishonestly” is not defined in s 408C or elsewhere in the Criminal Code. There is nothing in the expansion of the concept of dishonesty in s 408C(3)(b), (c), (d) and (f)⁹⁰ to suggest that the term “dishonestly” is used in the special sense in which it was in Salvo. Unlike s 81(1) Crimes Act 1958 (Vic), s 408C does not contain an element of deception as well as an element of dishonesty. There is nothing in the terms of s 408C which import that, to be found guilty, the accused person must obtain the property without a belief that he or she has the legal right to deprive others of it. Of course, there will be many cases, as in Laurie for example, where the evidence raises the issue of honest claim of right so that, under s 22(2) Criminal Code the prosecution must disprove this beyond reasonable doubt. After careful consideration of the authorities and the parties competing contentions, I am persuaded that the term “dishonestly” in s 408C has its ordinary meaning rather than a special meaning importing that, to be found guilty, the accused person must obtain the property without a belief in a legal entitlement to it.

As “dishonestly” in s 408C has its ordinary meaning, this Court must follow the meaning given to “dishonesty” by the High Court in Peters and Macleod. Despite the previously settled approach in Queensland since 1987, Queensland Courts must now construe the term “dishonestly” in s 408C as requiring the prosecution to prove only that what the accused person did was dishonest by the standards of ordinary honest people. To secure a conviction, the prosecution need not prove that the accused person must have realised that what he or she was doing was dishonest by those standards. This construction works harmoniously with the defence provisions of the Criminal Code, particularly s 22(2), so that, where there is evidence that the accused person had an honest belief that he or she was entitled to act as he or she did, to secure a conviction the prosecution must disprove the honest belief beyond reasonable doubt.

This reference under s 668A raises an important matter of law, namely the construction of s 408C. This directly affects the criminal law of Queensland. It is certainly a matter about which this Court should express its opinion: see R v PV; Ex parte Attorney-General (Qld).⁹¹

Order

The point of law referred:

“To satisfy the element of dishonesty [in s 408C Criminal Code] does the Crown have to prove that:

what the accused person did was dishonest by the standards of ordinary honest people; and

the accused person must have realised that what he or she was doing was dishonest by those standards?”

is answered: “No”.

MORRISON JA: I have read the reasons of the President and agree with those reasons and the answer her Honour makes to the point of law referred.

DALTON J: I agree with the reasons of the President and with the answer she makes to the point of law referred.

Footnotes

1. [1987] 2 Qd R 762. ↩

2. (2002) 135 A Crim R 346; [2002] QCA 477. ↩

3. [1982] QB 1053. ↩

4. R v Harvey [1993] 2 Qd R 389. ↩

5. (1998) 192 CLR 493. ↩

6. Toohey and Gaudron JJ, 504 [18] – [19], 508 [29], 510 [34]; McHugh J with whom Gummow J agreed, 530 [85]; and Kirby J, 555 – 556 [145]. ↩

7. (2003) 214 CLR 230. ↩

8. Above, Gleeson CJ, Gummow and Hayne JJ, 241 [34]; McHugh J 255 – 256 [96] – [98]. ↩

9. Above, 241 [34] and 244 [43] – [44]. ↩

10. Above, Gleeson CJ, Gummow and Hayne J, 245 [46]; McHugh J, 256 [99] – [100] and Callinan J, 264 – 265 [129] – [130]. ↩

11. (2007) 230 CLR 89, 162 [173]. ↩

12. Phillips v The Queen (2006) 225 CLR 303, 322 – 323 [60]. ↩

13. [2004] QCA 19. ↩