Steel, Alex --- "Describing Dishonest Means: The Implications of Seeing 'Dishonesty' as a Course of Conduct or Mental Element and the Parallels with Indecency" [2010] UNSWLRS 44

University of New South Wales Faculty of Law Research Series

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Describing Dishonest Means: The Implications of Seeing 'Dishonesty' as a Course of Conduct or Mental Element and the Parallels with Indecency [2010] UNSWLRS 44 (22 October 2010)

Last Updated: 26 October 2010

Describing Dishonest Means: The Implications of Seeing ‘Dishonesty’ as a Course of Conduct or Mental Element and the Parallels with Indecency

Alex Steel, University of New South Wales

This paper is available for download at http://law.bepress.com/unswwps/flrps10/art44/

Citation

This article was published in the Adelaide Law Review, Vol. 31, pp. 7-45, 2010.

Abstract

Fundamental differences exist internationally and within over the definition of ‘dishonestly’ and the associated term ‘fraudulently’. In Australia and Canada a further concept of ‘dishonest means’ exists. This article critically examines the Australian High Court’s analysis of ‘dishonest means’ in Peters v The Queen by comparing it with the approach taken by the Canadian Supreme Court in R v. Theroux and R v. Zlatic. The definition of ‘dishonest means’ in Peters is also compared with the exposition of actus reus and mens rea set out in He Kaw Teh v. The Queen, and with similar issues faced by courts in defining acts of indecency. It is argued that in choosing to see ‘dishonest means’ as an element of actus reus, the High Court was mistaken in including the state of mind of the accused as a factor in the characterisation of acts as dishonest. Instead, those mental elements are best placed in the mens rea of an offence. This is because ‘dishonesty’ should be defined as based on either a moral standard or a failure to live up to community expectations. The analysis in Peters conflates these approaches. The complexity generated by Peters suggests that dishonesty is best seen as a purely mental element.