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Brief Facts

Discuss about the Test for Dishonesty for County Court of Victoria.

Part 1: Brief Facts

In this case[1], the appellant was a solicitor who was facing trial in County Court of Victoria on the charges that were based on the conspiracy to defraud the Commonwealth in accordance with sections 86(1)(e) and 86A, Crimes Act, 1914 (Cth). Similarly the appellant also stood trial for a charge of conspiracy to pervert the course of justice. The accused was acquitted of this charge but was convicted on the charge of conspiracy to defraud. The Court of Appeal of the Supreme Court of Victoria dismissed his appeal against conviction. Under the circumstances, the appellant preferred an appeal to the High Court of Australia.

The brief facts of this case are that the appellant was retained by Mr. Spong in 1983 for acting in certain transactions that were related with the purchase of five blocks of land in Essendon, Victoria. On October 5, one block of land, that had substantial residences on it, was purchased under the name of Jetoline Pty Ltd. The appellant was a director and also a shareholder of this company. The other director of this company was 'Freeman' which was an alias used by Spong and the appellant was aware of this fact. However it is not clear if the other blocks of land had also been purchased in the name of Jetoline. The issue in this case was not that Spong was dealing in illegal drug trafficking or that he had purchased these properties with the money that was obtained by name as a result of this drug trafficking. Apart from it, it follows that the acquittal of the appellant on the charges of conspiracy to pervert the course of justice it has to be considered that the appellant was ignorant regarding the source of this money.

Although, whole of the money has been provided by Spong for purchasing these properties, the fact had been concealed by executing two sham mortgage documents. One of these documents was a memorandum of mortgage on the block of land on which the residence mentioned above has been erected. This mortgage was in favor of a person who was identified as Rosenberg, which was another alias that was used by Spong. The other document was a mortgage over the rest of the five blocks of land in favor of Dial Financial Services Pty Ltd. In this case the appellant had acted on behalf of purchaser/mortgagor regarding this mortgage and there was another solicitor who had acted on behalf of Dial. In reality, no money was advanced under these two mortgages. In fact the solicitor who was acting for Dial could not register the “mortgage” to that company and as a result, a caveat was lodged in order to protect its interests. Later on, the blocks of land were sold to genuine buyers, apart from the one on which residence was erected. On settlement, all or a part of the proceeds of the seals were paid to Dial and the company executed the withdrawal of caveat so that the transfer of land in the name of the purchaser can be registered. Later on the money that was paid to Dial was paid back to Spong.

The Meaning of Dishonesty in Australia: Peters v the Queen (1998)

In this way, the issue that was present in this trial regarding the charge of conspiracy to defraud the Commonwealth, it was the case of the prosecution that the appellant was a party to an agreement that was concluded for the purpose of concealing the true amount of the income of Spong with the help of sham mortgage transactions and in this way, it was the intention of the appellant and his fellow conspirators to deprive the tax that was payable on this income to the Federal Commissioner of Taxation. In his evidence, the appellant had admitted at some stage that Spong had informed him that no money was advanced by Dial under the mortgage and that the money that was paid to Dial, apparently as a partial discharge of the mortgage, was to be returned to Spong. But in this regard, the case is upon the fact that he was not a party to any agreement that was concluded with a view to conceal the income of Spong with the help of sham mortgage transactions or to deprive the Commissioner of the text that was payable on such income. Therefore the appellant said that he was only acting as a solicitor for Spong.

However in its decision, the High Court had firmly rejected the Ghosh test[2] and claimed that it was incongruous. As a result, since then, the Feely test[3] has been applied to fraud.

Therefore in this case, Peters was charged with conspiracy to defraud the Commonwealth and the conviction was appealed on the ground that the jury was wrongly directed by the court regarding dishonesty or the intention to defraud. The Court agreed regarding the meaning of 'defraud', there was a three-way split in the decision regarding the role and meaning of dishonesty in the offense. However the majority was formed by an unusual retraction by Kirby J. He was the only judge who found dishonesty as a separate, essential element that should be present in a conspiracy to defraud. On the other hand, according to the other four judges, dishonesty was an aspect of the elements of this offense. However the split regarding dishonesty was an issue that was left to the jury. In this regard,  McHugh J and Gummow J stated that it was for the trial judge to decide if the alleged means that had been used by the accused were dishonest and it was not the task of the jury to define dishonesty to hold what can be described as a conspiracy to defraud or not. As a result, they did not find it necessary to discuss the appropriate test related with the dishonesty. In their joint judgment, Toohey and Gaudron JJ had stated that the cases where the defense of the accused denied dishonest behavior, the jury has to decide the issue of dishonesty and it was aspect of the agreement to use dishonest means and also the intention to place the interests of other party at risk. Whether both of these elements were dishonest, was the question that has to be decided by the jury and the judges formulated a test related with the dishonesty that had been rejected the Ghosh test[4] in some measures but it retains some reference to the ordinary community standards. The ratio and obiter of the decision given in this case can be described as that dishonesty was an essential and separate element in the offense and in his strongly worded judgment, the court argued in favor of an entirely subjective approach for deciding dishonesty. However for the purposes of majority, he agreed with the judgment of Toohey and Gaudron JJ.

The Ghosh Test

Part 2 Research Essay

The meaning of dishonesty in Australia: Peters v the Queen (1998)

For many years, the criminal law in Australia was dominated by the so-called “Ghosh Test”. It was difficult to understand the legislative decision of introducing this test, particularly in view of the fact that the test has proved to be difficult if not impossible for the jurists to grasp. The intermediate courts were divided regarding the proper application of this test and its reintroduction may confuse, instead of simplifying the criminal law in Australia. There are very few cases that have attracted so much criticism from judicial and academic circles as was attracted by R v Ghosh.[5] In this case, the English Court of Appeal came up with a new test that can be applied for the purpose of deciding if a person has acted dishonestly or not. This came to be known as the Ghost Test. There are two limbs of this test and both of these links have to be satisfied in order to arrive at the finding of dishonesty. According to the first part of this test, the conduct of the person should be dishonest according to the ordinary standards of honest and reasonable people.[6] Similarly, according to the second controversial limb, it is required that either the person should actually know or realize that his conduct can be considered as dishonest according to the standards. This test was immediately criticized by the followers of criminal law in the UK and since then it has been significantly restricted in its application to criminal cases while application to civil cases has been rejected by the British courts, including the Privy Council. This test has also been repudiated by the Supreme Court of Canada stated that this test cannot be reconciled with basic principles of criminal law dealing with mens rea and similarly the High Court of Australia has also described his tests as incongruous, difficult, distracting and confusing.[7] However despite extensive criticism and rejection, and a somewhat apparent ignorance regarding the test, the Ghosh Test is still obliging in Queensland and is present in the Model Criminal Code, and as a result, it has been adopted by the legislatures of the Commonwealth, South Australia, Australian Capital Territory and New South Wales.

General Points Regarding Dishonesty: Dishonesty can be described as an explicit or implicit element that is present in several criminal offenses as well as in civil causes of action, both under the common law and statute in Australia and other parts of the world. The term dishonesty or its variations have been used in a large number of statutes and regulations that are prevalent in Australia and in case of England, dishonesty has to be proved in nearly half of all the prosecutions related with indictable offenses. It also needs to be mentioned, that in most of the cases, dishonesty has not been defined specifically, either in whole or part, still it acts as significant determinant of liability.

Criticisms of the Ghosh Test

In this way, dishonesty can be described as a characterization of conduct or more exactly the state of mind of the person who is involved in the conduct which connotes fault. Traditionally, dishonesty has been treated as a part of mens rea or the mental element of the criminal offenses. However in the language used in modern criminal courts, despite certain unsupported assertions to the contrary, dishonesty has been described as a fault element. As is the case with the legislators, the courts also generally refused to offer any definition of dishonesty however they are providing competing tests that can be applied for the purpose of deciding if something can be described as dishonest.[8] The origin of these tests can be tracked to the English authorities related with the meaning of dishonesty as mentioned in the Theft Act, 1968 (UK).

the English Court of Appeal explained the requirements of dishonesty as required in the Theft Act in R v Feely. The Court stated in this regard that the word 'dishonestly' is related with the state of mind of the person performing the act amounting to an appropriation. Whether the accused person has a particular state of mind is a question of fact that needs to be decided by the jury. The Court also stated that he did not agree that the judges should define the meaning of the term 'dishonestly'. This term is commonly used when deciding if an appropriation can be reasonably expected to be dishonest, and should apply the present standards of ordinary people. The Jurors also have to decide if particular conduct can be described as dishonest or not. Therefore the court stated that he did not see any reason why the Jurors should need the help of a judge to tell them what can be considered as dishonest, when they are in the jury box. The two main features of this test are that it is a subjective test, due to the reason that it focuses on the actual state of mind of the accused by the evaluation of the fact that being accused had acted dishonestly depends on the “standard of ordinary decent people” instead of the standards of the accused or his personal beliefs that he or she was acting dishonestly. This particular aspect of the "Feely Test" remains the previously accepted view regarding fraud. Subsequently, the Feely test has been accepted as correctly stating the law regarding dishonesty on several occasions.[9]

The Feely Test

Similarly at the same time, there was the emergence of a competing line of authority according to which the test of dishonesty was to consider if the accused personally believed or considered his actions as being dishonest. This test has been described as extreme subjectivism by Williams[10] when it was stated in this regard that subjectivism of this level provides a bad name to subjectivism. The subjective approach to criminal liability, considers the intention of the defendant and the facts as they leave by the defendant to be and not to the system of values of the defendant.

Ghosh Test: Therefore in Ghosh, an attempt was made by the Court of Appeal reconciled conflicting authorities. In the beginning, the court approached this task by describing the Feely test as being objective and rejected a purely objective test. In this regard the court gave the following example in order to justify its conclusion. The court cited the example of a person who comes from country where public transport is provided free of cost. On his first day, the person travels on a bus and gets off without paying the fare. The person never had the intention of paying but his mind was clearly honest even if his conduct, if judged objectively on the basis of what he has done, can be described as dishonest. Therefore it appears that by using the word dishonestly, it was not the intention of the Parliament to catch dishonest conduct in that sense or to the conduct to which no moral obloquy can they possibly attached.[11]

In this context, it needs to be stated that the Ghost Test has not been universally accepted in Australia. In the beginning, it was accepted in Queensland, Western Australia and South Australia but for most part, it was not approved in New South Wales, Victoria and to a lesser extent in the ACT. For example in Peters v The Queen (1998) 192 CLR 493, the second linb of the Ghosh test was rejected by all the member judges of the High Court of Australia and they approved a test of dishonesty which only reflected the first live off this test, or in other words to see if the conduct of the defendant was “dishonest when tested on the standard of ordinary decent people”. This also came to be known as the Peters test. In this case, the majority comprising Justice Toohey and Justice Gaudron and Justice Kirby, who technically agreed with them, stated that there is a degree of incongruity in the notion that for the purpose of deciding dishonesty, the current standards of ordinary, honest persons have to be used and also the requirement this issue is to be decided by asking the question if the particular act was dishonest according to the standards and if so, if the accused was aware of this fact.

This incongruity arises due to the fact that honest and ordinary people decide if the acts of any other person can be considered as dishonest by reference to the knowledge of belief of that person regarding some fact that is relevant to date in question or the intention of that person with which such act was done. They do not consider if the other person can be considered to have realized that the act was dishonest, judged by the standards of the ordinary and honest people. Therefore, for example it is considered as dishonest by ordinary people to assert as true something that is known to be false. And this is done by ordinary persons only because the person who had made the statement was aware of the fact that it was false and not due to the reason that such person should be considered to have realized that it was dishonest by the current standards of ordinary and honest people.

In this case, the court also pointed out towards the practical difficulties that are related with the Ghosh test. The court stated that these difficulties arise because in most of the cases, where the issues involve honesty, the real question that has to be decided if the act was done with knowledge or belief in a particular thing or with a particularly intention, not if it is properly characterized as being dishonest. The court also provided a simple example in this regard. Generally, there is no question if the making of a false statement with the intention of depriving another person of his property is dishonest or not. Rather the question that arises in such a case is to see if the statement was made with the knowledge regarding its falsity and with the intention of depriving the other person. Although there can be certain unusual cases where the question can be received the act has been done with the knowledge of some matter or with some particularly intention can be described as dishonest.

It also needs to be mentioned that in case of the test of dishonesty provided in Peters, like in the Feely Test, is still highly subjective as it mainly focuses on the actual state of mind of the accused (like the knowledge, belief or the intention of the accused), although it is not require proof that it was realized by the defendant that his conduct can be considered as dishonest on the basis of ordinary standards. This test is not merely “objective” and it may even be mentioned as “subjective”. However ultimately, the objective characterization of the subjective state of mind is involved in this test. It was stated by the majority in Peters that a different test can be applied where dishonesty has been used in a particular sense in the legislation creating an offense, referring to the statutory provisions in Victoria that the city address the meaning of dishonesty. Since then, the test of dishonesty provided in Peters has been reaffirmed by the High Court and the general application of the test has been confirmed while the second level of Ghosh test has been rejected on several occasions.[12] For example in Macleod v The Queen[13], it was stated by the court that the test of dishonesty provided in Peters can be applied to a State Fraud Offense and it was stated by the majority that adopting the reasoning of the court in Peters, there is no need that the appellant should have realized that acts in question were dishonest when compared on current standards of ordinary decent persons. There will be deleterious consequences if reference is required to subjective criterion of such a nature. The court further stated that it will distract the jurors from applying the test provided in Peters regarding dishonesty and it will limit the flexibility that is inherently present in the Peters direction.

Part 3 – Reflective piece

In order to complete part 2 of the present assignment, the strategy adopted was to look at the cases related with the definition of dishonesty as a part of this offence. The starting point was Peters v The Queen but the decision given in this case provided the guidelines regarding the description of dishonesty. The earlier test that was used for the purpose of determining dishonesty was the Ghosh Test but the court declined to use this test, particularly the second limb of this test. In place of this test, the court came up with a novel test that had been reaffirmed by the High Court in other cases also. In this way, the second part of this assignment considers the circumstances under which it can be said that the defendant had acted with dishonesty.

As a result of the test that was provided in this case, certain changes were also introduced in the way in which the courts determined the issue if the conduct of the defendant can be described as dishonest. in this case, the focus was on the real state of mind of the accused and for this purpose, intention, knowledge and belief of the accused is considered although the proof is not required that the defendant was aware of the fact that his or her conduct can be described as dishonest in view of the ordinary standards.

A Halpin, “The Test for Dishonesty” [1996] Crim LR 283

DW Elliott, “Dishonesty in Theft: A Dispensable Concept” [1982] Crim LR 395 at 408

E Griew, “Dishonesty: The Objections to Feely and Ghosh” [1985] Crim LR 431 at 344

K Campbell, “The Test of Dishonesty in R v Ghosh”, [1984] Cambridge LJ 349 at 357

Wayne La Fave, Criminal Laws (4th ed, 2003) 939

Williams G, “The Standard of Honesty” (1983) 133 New LJ 636 at 637

Case Law

Macleod v The Queen (2003) 214 CLR 230

R v Ghosh (R v Ghosh [1982] QB 1053

R v Greenstein [1975] 1 WLR 1353

[1] Peters v The Queen (1998) 192 CLR 49

[2] R v Ghosh [1982] QB 1053

[3] R v Feely (1973) QB 530

[4] R v Ghosh [1982] EWCA Crim 2

[5]ibid

[6] Wayne La Fave, Criminal Laws (4th ed, 2003) 939

[7] E Griew, “Dishonesty: The Objections to Feely and Ghosh” [1985] Crim LR 431 at 344

[8] K Campbell, “The Test of Dishonesty in R v Ghosh”, [1984] Cambridge LJ 349 at 357

[9] R v Greenstein [1975] 1 WLR 1353

[10] Williams G, “The Standard of Honesty” (1983) 133 New LJ 636 at 637

[11] A Halpin, “The Test for Dishonesty” [1996] Crim LR 283

[12] DW Elliott, “Dishonesty in Theft: A Dispensable Concept” [1982] Crim LR 395 at 408

[13] Macleod v The Queen (2003) 214 CLR 230

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