Australia, July 30 -- New South Wales Land and Environment Court issued text of the following judgement on June 30:

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 ("Macleod") 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'.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19815689018b02fc19b4773d)

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