An explanation of dishonesty offences under Australian law

by The FindLaw Team

Now, if being dishonest was an actual offence, it would be safe to say that everyone reading this would probably be guilty. However, there are a number of statutes that exist which make acting dishonestly as part of an offence, and we’ll explain how dishonesty offences operate. Honest.

The law

Legislation such as s 408C of the Criminal Code Act 1899 (QLD) for example, deals with fraud offences where acting dishonestly is an aspect of an offence. However for a broader perspective of dishonesty, we can look to the comments of Fullagar J in R v Salvo [1980] VR 401; (1979) 5 A Crim R (CCA), where his Honour said (at 432; 23):

“In my opinion “dishonestly”, in this statute, is used in that sense of “with disposition to defraud” which means “with disposition to withhold from a person what is his right” and in the special context thus 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.”

In R v Glenister [1980] 2 NSWLR 597; (1980) 3 A Crim R 210 (CCA) in a joint judgment, the court said that fraudulently equals dishonesty (at 604; 215):

“We are satisfied that the course of judicial decision in the hundred years or so since these new statutory offences were created has assigned to the term “fraudulently” a meaning interchangeable with “dishonestly”.

Directions for dishonesty

Toohey and Gaudrdon JJ in Peters v The Queen (1998) 192 CLR 493; 96 A Crim R 250; 151 ALR 51 outlined the proper directions when the issue arises (at 504; 56-57; 256 [18]):

“[T]he 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 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.”

What should be the takeaway from this piece? That honesty is the best policy of course!



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