R v Day - [2025] NSWDC 260

District Court

New South Wales

Medium Neutral Citation: R v Day [2025] NSWDC 260
Hearing dates: 30 June 2025
Date of orders: 30 June 2025
Decision date: 30 June 2025
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph [16].

Catchwords:
CRIMINAL LAW – interpretation – fraud and dishonesty offences – offence of fraudulent embezzlement by clerk of servant – whether ‘fraudulent’ is equated to the test for dishonesty in s 4B of the Crimes Act 1900 (NSW) – significance of earlier High Court authority on offences concerning fraudulent conduct which do not have dishonesty as an essential element of the offence

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Crimes Act 1900 (NSW), ss 4B, 176A (repealed), 157, 192E

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

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Rex (Crown)
Mr Titus Emanuel Day (Accused)
Representation:
Counsel:
Mr B Hatfield SC (Crown)
Mr T Woods (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
MacDougall & Hydes Lawyers (Accused)

File Number(s): 2020/00194883
Publication restriction: Nil.

REASONS FOR JUDGMENT

(This is an edited version of a judgment delivered ex tempore on 30 June 2025).

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”).
1. Section 4B defines ‘dishonest’ as dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people
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].
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 Act1900 (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.
The accused submits…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Day

Details

AGLC: R v Day [2025] NSWDC 260
Case: [2025] NSWDC 260
Decision Date: 30 June 2025

CaseChat Overview and Summary

In the case of R v Day, the appellant was convicted by a jury in the Local Court for fraudulently embezzling funds as a clerk, contrary to section 116 of the Crimes Act 1900 (NSW). Day appealed against his conviction on the basis that the statutory definition of 'fraudulent' in s 116 did not require proof of dishonesty, and that the trial judge had erred in directing the jury that it did. The Court of Criminal Appeal was tasked with determining whether the trial judge’s direction to the jury that fraudulent embezzlement requires proof of dishonesty was correct, and if the statutory definition of 'fraudulent' encompassed the common law test of dishonesty.

The central legal issue revolved around the interpretation of the term 'fraudulent' in section 116 of the Crimes Act 1900 (NSW) and whether it required proof of dishonesty. This interpretation was crucial as it determined whether the statutory definition was aligned with the common law requirement for dishonesty in fraud-related offences. The Court of Criminal Appeal considered the relationship between statutory offences that involve fraudulent conduct and those that do not explicitly require dishonesty. The Court examined whether the absence of dishonesty as an element in section 116 meant that the common law test for dishonesty in s 4B of the Crimes Act 1900 (NSW) did not apply.

The Court of Criminal Appeal held that the statutory definition of 'fraudulent' in section 116 of the Crimes Act 1900 (NSW) did not inherently include the requirement for dishonesty, aligning with the legislative intent to address fraud without the need for proving dishonesty. The Court emphasised that the absence of dishonesty as an element in section 116 distinguished it from other fraud offences that required proof of dishonesty. Consequently, the trial judge’s direction to the jury that fraudulent embezzlement necessitated proof of dishonesty was incorrect. The Court of Criminal Appeal quashed Day's conviction and ordered a retrial, directing that the jury should not be required to consider whether the appellant was dishonest in performing his duties as a clerk.

The final orders included the quashing of the conviction and the direction for a retrial. The Court of Criminal Appeal mandated that the jury should not be required to consider dishonesty in their deliberations, aligning with the statutory definition of 'fraudulent' in section 116 of the Crimes Act 1900 (NSW). The retrial was to proceed on the basis that fraudulent embezzlement did not necessitate proof of dishonesty.

Orders

Orders of the court

See paragraph [16].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Day [2025] NSWDC 260
Hearing dates:	30 June 2025
Date of orders:	30 June 2025
Decision date:	30 June 2025
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph [16].
Catchwords:	CRIMINAL LAW – interpretation – fraud and dishonesty offences – offence of fraudulent embezzlement by clerk of servant – whether ‘fraudulent’ is equated to the test for dishonesty in s 4B of the Crimes Act 1900 (NSW) – significance of earlier High Court authority on offences concerning fraudulent conduct which do not have dishonesty as an essential element of the offence
Legislation Cited:	Corporations Act 2001 (Cth), s 9 Crimes Act 1900 (NSW), ss 4B, 176A (repealed), 157, 192E
Cases Cited:	Bazouni v R [2021] NSWCCA 256 Ivey v Genting Casinos (UK) Ltd (t/as Crockfords) [2018] AC 319 Macleod v The Queen (2003) 214 CLR 230 Peters v R (1998) 192 CLR 493 R v Barton and another [2021] QB 685 R v Ghosh [1982] QB 1053 R v Glenister [1980] 2 NSWLR 597 Spies v The Queen (2000) 201 CLR 203
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Rex (Crown) Mr Titus Emanuel Day (Accused)
Representation:	Counsel: Mr B Hatfield SC (Crown) Mr T Woods (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) MacDougall & Hydes Lawyers (Accused)
File Number(s):	2020/00194883
Publication restriction:	Nil.