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District Court 30 June 2025

R v Day

[2025] NSWDC 260

Fraud & dishonesty
CRIMINAL LAW INTERPRETATION FRAUD AND DISHONESTY OFFENCES

Citation: R v Day [2025] NSWDC 260
Court: District Court of New South Wales
Date: 30 June 2025
Judge(s): Abadee DCJ

Background

The accused faced multiple counts of fraudulent embezzlement by a clerk or servant under s 157 of the Crimes Act 1900 (NSW), as well as one count of dishonestly obtaining a financial advantage by deception under s 192E(1) of the same Act. The s 192E offence expressly includes "dishonesty" as an essential element, and that term is defined in s 4B of the Crimes Act. Section 4B reflects the two-limb test from the English decision in R v Ghosh, requiring the conduct to be dishonest by ordinary standards and the defendant to have known it was dishonest by those standards.

The accused applied for the jury to be directed on the concept of "fraudulent" in the s 157 counts using the same definition of dishonesty contained in s 4B. The argument was that "fraudulent" and "dishonest" are interchangeable concepts in fraud offences, and that directing the jury differently on the two kinds of counts would be inconsistent and confusing.

The matter came before Abadee DCJ as a pre-trial directions question, and his Honour delivered an ex tempore judgment on 30 June 2025.

  • Whether the word "fraudulent" in s 157 of the Crimes Act 1900 (NSW) carries the same meaning as "dishonest" as defined in s 4B, including the second limb requiring the defendant's awareness of the negative normative judgment of others.
  • Whether High Court authority on fraud offences that do not contain "dishonesty" as an express element has been superseded by the enactment of s 4B.
  • Whether the jury must receive consistent directions on dishonesty across both the s 157 counts and the s 192E count.

Decision

Abadee DCJ rejected the accused's submission. The controlling authority is the High Court's decision in Peters v R (1998) 192 CLR 493, where Toohey and Gaudron JJ held that for statutory offences involving fraud, but not containing "dishonesty" as an express element, the proper direction is to identify the particular knowledge, belief or intent alleged to render the act dishonest, and to ask whether the accused possessed it. That approach specifically disapproved the second limb of the Ghosh test, which the s 4B definition enacts.

The Peters approach was subsequently approved by the High Court in Macleod v The Queen (2003) 214 CLR 230 and applied to a now-repealed NSW fraud offence using the word "fraudulently" in Spies v The Queen (2000) 201 CLR 203. Abadee DCJ held that this line of authority remained binding, notwithstanding the later enactment of s 4B. The High Court in Peters and Macleod was already aware of different statutory and common law approaches to dishonesty and expressly disavowed the second limb of Ghosh. Parliament, had it intended to override that reasoning for offences not expressly containing "dishonesty" as an element, would have been expected to say so plainly.

The accused's further argument that the Bazouni v R [2021] NSWCCA 256 decision supported his position was also dismissed. Abadee DCJ observed that s 157 was not considered in that case, and that even if the relevant observations in Bazouni extended to s 157 offences, they were obiter and inconsistent with binding High Court authority.

His Honour acknowledged that the jury would therefore receive different directions on "fraudulent" for the s 157 counts and on "dishonestly" for the s 192E count, notwithstanding that both concepts share a common denotation. That consequence followed from the binding case law and did not alter the analysis.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court held that the word "fraudulent" in s 157 of the Crimes Act 1900 (NSW) does not carry the same meaning as "dishonest" under s 4B, and the Ghosh two-limb test (as enacted in s 4B) does not apply to that offence.
  • Binding High Court authority, principally Peters v R and Macleod v The Queen, requires that for fraud offences not expressly containing "dishonesty" as an element, the jury must be directed to determine whether the accused possessed the specific knowledge, belief or intent said to render the act dishonest, without the second limb requiring awareness of others' moral judgment.
  • Enactment of s 4B after Macleod did not, in Abadee DCJ's view, supersede the High Court's approach to offences where dishonesty is not an express element. Parliament would have needed to state that intention clearly for such an extension to follow.
  • Observations in Bazouni v R [2021] NSWCCA 256 suggesting broader application of the s 4B test to fraud offences were treated as obiter and inconsistent with High Court authority to the extent they might extend to s 157.
  • A broader trend away from the second limb of Ghosh is also apparent: the Corporations Act 2001 (Cth) definition of dishonesty (for offences committed after 13 March 2019) and the UK Supreme Court's decision in Ivey v Genting Casinos both omit or reject that limb.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4B, 157, 176A (repealed), 192E
- Corporations Act 2001 (Cth), s 9

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