For fraud offences under s 192E(1)(b) of the Crimes Act 1900 (NSW), the mental element of dishonesty (s 4B) requires proof of knowledge that conduct was dishonest by community standards; recklessness is insufficient, even though recklessness suffices for the separate element of deception (s 192B). Trial judges must direct juries on these two mental elements separately. The proviso may be applied even where an element of the offence was wrongly explained, provided the appellate court is satisfied beyond reasonable doubt of guilt and the error is not so fundamental as to constitute inherently a substantial miscarriage of justice.
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