Dishonesty

A person's conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that they are acting dishonestly [Criminal Law Consolidation Act 1935 (SA) s 131(1)].

The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that they have a legal or equitable right to act in that way [s 131(5)]. Whether a defendant's conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience (or the judge's, if there is no jury) [s 131(2)].

A defendant who is willing to pay for property involved in an alleged offence of dishonesty can still be found to be dishonest [s 131(3)].

A person does not act dishonestly if they find property and deal with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps, provided they are not under a legal or equitable obligation with which the retention of the property is inconsistent.

A person who asserts a legal or equitable right to property that they honestly believe to exist does not, by so doing, deal dishonestly with the property [s 131(6)].

Serious encroachment

There are two ways to intend to seriously encroach on someone's proprietary rights.

The first is where a person intends to treat the property as their own to dispose of regardless of the owner's rights [s 134(2)(a)].

The second is where a person intends to deal with the property in a way that they know will create a substantial risk that the owner will not get it back, or that, when the owner gets it back, its value will be substantially impaired [s 134(2)(b)].

A person may be charged with, and convicted of, theft by reference to a general deficiency in money or other property. In such a case, it is not necessary to establish any particular act or acts of theft [Criminal Law Consolidation Act 1935 (SA) s 136].

It is generally applicable to certain offences, such as embezzlement, and as a result the prosecution does not have to prove a specific amount of money was stolen by the accused. Instead they can rely on a deficiency as proved by the accounts or records made by the accused.

It is an offence for a person to have goods in their possession that police reasonably suspect have been unlawfully obtained [Summary Offences Act 1953 (SA) s 41(1)].

It is a defence to prove, on the balance of probabilities, that the person took possession of the property honestly [s 41(2)].

Unlawful possession is generally charged when a person has suspected stolen goods in their possession but the prosecution is unable to establish that they are responsible for the theft itself.

The maximum penalty is imprisonment for 2 years or a fine of $10,000.

Identity theft is criminalised under Part 5A of the Criminal Law Consolidation Act 1935 (SA).

It is an offence to make a false pretence intending to commit (or facilitate the commission of) a criminal offence [s 144B]. A person makes a false pretence when they assume a false identity or falsely pretend to have particular qualifications or to be entitled to act in a particular way. A person who makes a false pretence intending to commit a criminal offence may be punished in the same way as someone who attempted to commit the criminal offence.

It is also an offence to misuse someone's personal identification information to commit (or facilitate the commission of) a criminal offence [s 144C].

Personal identification information is any information used to identify a person, including name, address, contact details, date or place of birth, marital status, driver's licence, passport, biometric data, and credit card or debit card [s 144A].

From 1 April 2025, it is an offence to possess someone else's personal identification information without reasonable excuse [s 144DA]. This does not include merely possessing someone's name, address, contact details, date or place of birth or marital status [s 144DA(2)(b)]. The maximum penalty is imprisonment for 2 years.

If a person charged with possessing someone's personal identification information can show that they

then the prosecution will need to prove that they held the personal identification information without reasonable excuse [s 144DA(3)].

It is also an offence to produce, possess, sell or share prohibited material intending it to be used for a criminal purpose [s 144D]. Prohibited material is anything that enables a person to assume a false identity or access someone else's property or funds. The maximum penalty is imprisonment for 5 years.

Part 5A offences do not apply to misrepresentations by persons under the age of 18 for the purpose of gaining access to alcohol, tobacco or a product, service or premises not lawfully available to someone under 18 [s 144F].

It is an offence for a person to steal a dog, or have possession of a stolen dog knowing the dog has been stolen [Summary Offences Act 1953 (SA) s 47A].

The maximum penalty is imprisonment for 2 years or a fine of $50,000.