Moore v The Queen

[2016] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Moore v R [2016] NSWCCA 260
Hearing dates:	28 October 2016
Decision date:	01 December 2016
Before:	Leeming JA at [1]; Fagan J at [51]; N Adams J at [59]
Decision:	1. Grant leave to appeal against conviction. 2. Allow the appeal against conviction. 3. Quash the convictions on counts 1 and 2. 4. Enter verdicts of acquittal in respect of counts 1 and 2.
Catchwords:	CRIMINAL LAW – appeal against conviction – dishonestly obtain financial advantage by deception – Crimes Act 1900 (NSW) s 192E(1)(b) – appellant opened “Complete Freedom” savings account with bank – account very substantially overdrawn over many months – bank charged interest and fees on overdrawn amount throughout period – whether terms and conditions provided for bank to permit account to be overdrawn – whether appellant was authorised to borrow overdrawn funds – whether additional element of deception in offence – conviction quashed
Legislation Cited:	Bail Act 2013 (NSW), s 22 Crimes Act 1900 (NSW), ss 192B(1)(b), 192E(1)(b), 193B(2)
Cases Cited:	Commissioner of Police for the Metropolis v Charles [1977] AC 177 Croton v The Queen (1967) 117 CLR 326 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Director of Public Prosecutions v Ray [1974] AC 370 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Ho v R; Szeto v R (1989) 39 A Crim R 145 Moylan v Western Australia [2007] WASCA 52; (2007) 169 A Crim R 302 R v Clarkson [1987] VR 962; (1987) 25 A Crim R 277 R v Evenett (1987) 24 A Crim R 330 R v Kovacs (1974) 58 Cr App R 412 R v Moore [2015] NSWSC 1262 R v Smith (1982) 7 A Crim R 437 Russell v Scott (1936) 55 CLR 440
Category:	Principal judgment
Parties:	Luke Moore (Appellant) Crown (Respondent)
Representation:	Counsel: A Francis (Appellant) V Lydiard (Crown)   Solicitors: Hardinlaw (Appellant) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2012/385782
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 17 April 2016 Before: Norrish DCJ File Number(s): 2012/385782

HEADNOTE

[This headnote is not to be read as part of the judgment.]

Mr Luke Moore was convicted by a jury of twelve in the District Court of New South Wales of one count of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), and one count of dealing with the proceeds of crime, contrary to s 193B(2) of the Crimes Act.

Mr Moore opened an account with St George Bank at a branch in Goulburn on 11 March 2010. Mr Moore’s account was permitted to reach a negative balance in early June 2010 and remained negative thereafter from 10 June. The terms and conditions of the bank account permitted Mr Moore to request funds to be lent to him, in excess of the balance of his account, whether by cash withdrawal, periodical payments or direct debit. The Bank’s systems accepted these requests. Each time a withdrawal was made from the account when the balance was negative, the Bank charged a fee. Mr Moore was also charged interest on the amount overdrawn. By the time the account was closed on 10 August 2012, there was a negative balance exceeding $2.1 million.

Although Mr Moore’s behaviour was dishonest in that he borrowed and dissipated funds which he had no prospect ever of repaying, he did not deceive the Bank. For that reason, the Crown relied on the expanded statutory notion of deception in s 192B(1)(b), which provided that deception included “conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make”.

Held by Leeming JA, Fagan and N Adams JJ agreeing, allowing the appeal:

Whether Mr Moore was authorised depended on the terms and conditions of    the contract between him and the Bank: at [33]‑[34], [54], [59].

The terms and conditions of the contract, on their proper construction, allowed Mr Moore to request additional funds to be lent to him, such that Mr Moore was authorised, albeit by an oversight on behalf of the Bank. The statutory notion of deception in s 192B(1)(b) was therefore not satisfied by Mr Moore’s conduct: at [36]‑[46]; [54]‑[58]; [59].

R v Evenett (1987) 24 A Crim R 330, considered

Whether the statutory notion of deception in s 192B(1)(b) deems there to be a deception, or whether some form of deception as otherwise understood in the law of criminal fraud is also required, considered: at [51]‑[53] (Fagan J); [59]‑[62] (N Adams J).

Judgment

1. LEEMING JA: Mr Luke Moore was tried in the District Court of New South Wales before a judge and jury of twelve following his pleas of not guilty to one count of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), and one count of dealing with the proceeds of crime, contrary to s 193B(2) of the Crimes Act.

2. The jury returned a verdict of guilty on both counts. The primary judge sentenced Mr Moore to wholly concurrent terms of imprisonment, of 4 years and six months and 3 years respectively, for counts 1 and 2, in each case commencing 18 February 2015. In each case, the non-parole period was 2 years and 3 months.

3. Mr Moore appeals to this Court against his convictions and his sentence. There was a grant of conditional bail following conviction, in part because of the unusual features of this case, in accordance with the requirement in s 22 of the Bail Act 2013 (NSW) that the applicant establish “special or exceptional circumstances”: R v Moore [2015] NSWSC 1262. For the reasons which follow, I have concluded that the convictions should be quashed and verdicts of acquittal entered.

Factual background

4. The facts were largely uncontroversial. Mr Moore opened an account with St George Bank at a branch in Goulburn on 11 March 2010. The account was styled, not inaptly, a “Complete Freedom” account. The initial balance was $0. On the following day, $441 was credited to the account by Centrelink, and similar payments were made approximately fortnightly thereafter. There were also a small number of “CICA Comm” payments. Between 11 March 2010 and 13 July 2010 in excess of $6,000 was deposited into the account from those two sources. There were no other deposits.

5. There were withdrawals from the account over the same period, in amounts not exceeding $440 for the first couple of months. On 19 May, 2 June, 10 June, 16 June, 30 June and 13 July there were larger debits identified on the bank statements as “RHG Mortgage Cor”, for the most part just over $500. When the second of those debits was processed, the account balance became negative, for the first time, between 2 and 8 June, and a “Payment Honour Fee” of $9 was debited. However, the “RHG Mortgage Cor” debit on 2 June appears to have been honoured, and the account returned to a positive balance on 9 June when a “CICA Comm” payment was received. On 10 June, a series of ATM and eftpos debits were processed, leaving a positive balance of $165.10. Also on 10 June, but later on the day, another “RHG Mortgage Cor” debit, this time of $900, was processed, and the balance fell to negative $734.90.

6. The balance was never thereafter positive, although on 16 June it was only negative $2.10. Each time a withdrawal was made from the account when the balance was negative, the Bank charged a “Payment Honour Fee” of $9. From July to November 2010 it appears as though there were few non‑automated transactions involving the account. Aside from the fortnightly RHG Mortgage Cor debits of $524 (and accompanying Payment Honour Fees of $9), there was very little account activity at all. By 16 December, the account balance was negative $9,111.58.

7. That changed around Christmas 2010. On each of 22, 24, 29, 30 and 31 December 2010, there were debits of $4,999.00 from the account, each recorded as “RHG Mortgage Cor”. There were another 4 debits in the same amount on 4, 5, 7 and 11 January 2011. All those debits were honoured, subject to the payment, in each case, of a $9 Payment Honour Fee. After those nine debits totalling some $45,000 had occurred, the balance was negative $55,508.17.

8. On 12 and 13 January 2010, there were two RHG Mortgage Cor debits each of $49,000, leading to a negative balance in excess of $150,000.

9. There were numerous small debits over the next 11 months, but save for one payment (a debit of $4,000) no transaction was in excess of $1000. The Bank continued to debit the account with increasing amounts of interest each month, as well as $9 Payment Honour Fees for each debit processed.

10. By 21 December 2011, the negative balance was some $229,000. In the next eight months, very substantial amounts were debited, with entries recorded as “PayPal Australia”, such that by the time the account was closed on 10 August 2012, there was a negative balance exceeding $2.1 million. For example, there were transfers to “PayPal Australia” in the amounts of $75,000 (13 June 2012), $60,000 (19 June 2012), $40,000 (2 July 2012) and $40,000 (13 July 2012).

11. Throughout the whole of the period, the Bank charged a $9 fee for each debit when the account had a negative balance, and a high rate of interest, which was debited each month. By way of example, the Bank charged $32,689.17 interest for the month ended 30 June 2012, a month when the negative balance ranged between $1.894m and $2.063m, being a rate of approximately 20% pa.

12. The evidence established that Mr Moore’s home was subject to a mortgage from RHG Mortgage Corporation Pty Ltd which had an automated fortnightly repayment in approximately the amounts debited to the “Complete Freedom” account, and that Mr Moore’s indebtedness was in the order of $160,000 prior to that account being opened.

13. On 12 December 2012, police executed a search warrant on Mr Moore’s home. They recovered a large number of pictures (including some signed by Led Zeppelin, Bob Dylan, Guns N’ Roses, Foo Fighters and Usher). Other items included a frisbee signed by Ms Amy Whitehouse and a picture signed by the presenters of “Top Gear”. Consistently with the interests suggested by the latter, a key to an Aston Martin DB7 Vantage coupe was found, and police inquiries identified its former owner, who had agreed to sell it to Mr Moore for $91,000. Mr Moore operated a bank account with the National Australia Bank, into which large amounts had been credited from PayPal Australia. The two bank cheques identified by the vendor as the purchase price of the Aston Martin were purchased with funds drawn on the NAB account on 17 and 19 July 2012.

14. Mr Moore had also purchased a 2001 Maserati sedan for $36,000, a 2012 Hyundai sedan for some $30,000, a 2006 Alfa Romeo 156 and a 6.1m boat. It is not necessary for the purposes of this appeal to describe the more or less comprehensive documentation relating to those items.

15. A letter from Westpac was tendered, stating that the Bank had recovered some property valued in excess of $1.2 million from Mr Moore, including some $733,000 in a National Australia Bank account, and some $394,000 in a PayPal account.

16. The Crown also tendered bank statements, issued to Mr Moore every two months, recording the debits, fees and interest in the account. They are in standard form, recording the transactions, the running balance, and the fees and interest charged. For the period 1 July 2011 to 30 June 2012, St George debited interest in the amount of $136,384.08. For the period from 1 July 2012 until 31 July 2012, a further amount of interest of $36,575.10 was debited to the account. The fees debited to the account over the whole period are in the order of $2,000.

The nature of the mistake and the requirement of deception

17. It is perfectly plain that there was a mistake of some kind within the Bank. As a matter of civil law, a mistaken payment gives rise to a right to recovery. To be quite clear about it, the notion sourced in board games of a windfall “Bank error in your favour” is a very poor guide to the position at law. It has been the law for centuries that a party making a payment by mistake is entitled, subject to defences, to recover that payment. The innovation in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 376 was recognising that any mistake, whether of fact or law, was sufficient of itself to give rise to a “prima facie entitlement to recover moneys paid”.

18. But in the present case, the Bank’s mistake lay not in paying Mr Moore, but in continuing to lend Mr Moore large amounts of money, on an account which lacked an overdraft facility, and, even if there were an overdraft, to an extent which exceeded any limit which could ever rationally have been approved. At all times, the Bank was entitled to be repaid the money it had lent. There is no occasion to address any non-contractual rights, still less to examine defences to a claim of money had and received, or to such rights as the Bank had in equity. At all times, Mr Moore was required to repay the Bank as a simple matter of debt.

19. It is plain that Mr Moore behaved not only extremely foolishly but also dishonestly. He continued to borrow and consume funds, knowing that he had no realistic prospect of repaying them, and appreciating that there was a mistake in the Bank’s systems. No other inference is available by the time the end of the period in question was reached. I do not regard it as an excuse, but there was evidence (tendered at the sentencing hearing) that Mr Moore had suffered a serious brain injury on the evening of his 21st birthday in 2008 and suffered from a form of bipolar disorder.

20. But whether his conduct amounted to the crime with which he was charged is quite different from Mr Moore’s undoubted civil liability.

21. The indictment specified the period from 13 July 2010 until 10 August 2012, during the whole of which time the account was overdrawn, as the time when he did, by deception, dishonestly obtain a financial advantage.

22. Section 192E(1) provided:

“(1) A person who, by any deception, dishonestly:

(a) obtains property belonging to another, or

(b) obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.”

23. The making of a loan is a financial advantage. Thus a person who tells a lie to a lender in order to obtain a loan commits a crime. But an element of the offence with which Mr Moore was charged is deception. The unusual aspect of Mr Moore’s conduct was that there was nothing covert about it. The statements issued by St George recorded each debit, and charged a fee and interest, and stated with complete accuracy Mr Moore’s growing indebtedness.

24. The Court asked, repeatedly, counsel for the Crown to identify any representation, express or implied, made by Mr Moore to the Bank which had any causative role in its continuing to lend money to him. The Crown was unable to do so, for the good reason that there was none. Mr Moore communicated nothing to St George which was untrue which induced it to continue and indeed increase its lending of money to him.

25. The Crown sought to rely upon what Mr Moore might be taken to have represented to PayPal when causing it to establish a system whereby funds from St George would be transferred to PayPal; it was said in substance that he had lied by representing that he had funds in the “Complete Freedom” account when that account was overdrawn.

26. However, the Court was not taken to the evidence of what Mr Moore told PayPal, if indeed there was any such evidence. More importantly, this way of putting the Crown case misconceives the nature of transactions between financial institutions. Let it be assumed that Mr Moore represented something to cause a facility to be established whereby a debit could be recorded in the “Complete Freedom” account and a corresponding credit in an account maintained by PayPal. I do not see how there would inevitably have been a representation that the account balance in the “Complete Freedom” account was positive. It is possible, and indeed to my mind much more likely, that any representation would merely have been that St George was willing to authorise a debit transaction on that account. Financial institutions very regularly authorise transactions when accounts are in debit. Almost every transaction on a credit card and almost every settlement of a purchase of property funded by a loan are examples. There is nothing to suggest, let alone to demonstrate to the criminal standard, that Mr Moore represented to anyone that his account with St George was not overdrawn. And, even if he had, St George at all times knew the truth of the matter, which was that it had lent him large amounts of money none of which had been repaid.

The statutory notion of deception in s 192B(1)(b)

27. It was, no doubt, for that reason, that the Crown relied on an expanded statutory notion of deception. Section 192B defines deception as follows:

“(1) In this Part, deception means any deception, by words or other conduct, as to fact or as to law, including:

(a) a deception as to the intentions of the person using the deception or any other person, or

(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

(2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.”

28. The Crown relied on s 192B(1)(b). That in turn directed attention to the issue of authority. Although there were other grounds of appeal, it is sufficient for present purposes to note that Mr Moore contended that the guilty verdicts were unreasonable or could not be supported having regard to the evidence. His essential case, at trial and on appeal, was that:

“In short, it was the defence case that the appellant was in fact authorised, albeit by an oversight, to act on the [account] as he did.”

29. In oral submissions, after an adjournment, the Crown submitted that s 192B(1)(b) stood alone, and involved no element of deception. That is to say, the Crown contended that the inclusive definition in paragraph (b) was itself sufficient and amounted to a deemed deception. This was not something which was articulated in its written submissions. No authority was cited on the question.

30. The text of s 192B(1)(b), and in particular the absence of the word “deception” (which in contrast is repeated in par (a)) provides some support for this construction. However, it is contrary to statements in Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [350], [352], [359] and [502]. The principal focus of those statements was par (a), although they are expressed in general terms (“It is significant that the offence requires that a financial advantage be obtained by deception”). The Court was given no assistance in reconciling these passages with the Crown’s submission.

31. This appeal can be resolved on the basis of the point which was argued, namely, whether Mr Moore was authorised within the meaning of s 192B(1)(b). In those circumstances the appeal is best resolved by assuming, but not deciding, that no element of deception need be involved, if the circumstances in par (b) are satisfied.

Was Mr Moore authorised?

32. Mr Moore had formally admitted at trial that:

“I requested all transactions which occurred at my St George account, between 13/7/10 and 10/8/12, including requests to various institutions for direct debit from St George.”

33. It was also common ground that the question of authorisation turned on the terms and conditions of the “Complete Freedom” account.

34. When Mr Moore “opened” the bank account on 11 March 2010 he brought into existence a banker-customer relationship, founded in contract. As Dixon and Evatt JJ said in Russell v Scott (1936) 55 CLR 440 at 450-451, a “bank account” is nothing more or less than a chose in action, consisting “in the contractual right against the bank, ie in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn.” The contractual terms were recorded in writing, in a “Terms and Conditions” booklet, which became exhibit 3 at trial. Those terms and conditions expressly made provision for withdrawals in excess of available balance. They included:

“Overdrawing your Account

13.6 If you withdraw an amount in excess of the Available Balance your Account may be overdrawn. ...

13.7 We are not obliged to allow you to overdraw your Account.

13.8 If we do allow you to overdraw your Account:

(a) we will charge you a fee;

(b) you agree to pay us interest on the amount overdrawn calculated using the current applicable overdraft rate we specify from time to time. You can find out the current overdraft rate by [various ways were stated].

We calculate interest charges each day on the amount overdrawn at the overdraft rate applying that day. Interest charges for overdrawn balances accrue daily and are debited to your Account at the end of each month;

(c) you must repay the overdrawn amount immediately without further demand from us; and

(d) you agree to pay us any reasonable legal fees we incur in seeking to recover the overdrawn amount from you.

13.9 If you overdraw your Account, we do not have to set off the amount overdrawn against any credit balance in another of your accounts.”

35. Clauses 14.4 and 15.3 also provided:

“14.4 We may decide not to make a periodical payment if the Available Balance is not sufficient to cover the payment when the payment is to be made. We do not have to inform you if a periodical payment is not made.

…

15.3 We may decide not to make a direct debit if the Available Balance is not sufficient to cover the payment when the debit is to be made. We do not have to inform you if a direct debit is not made.”

36. The question posed by s 192B(1)(b) was whether it was shown that Mr Moore caused a computer, a machine or any electronic device to make a response that he was not authorised to cause it to make.

37. Under the terms and conditions, Mr Moore was permitted to request funds to be lent to him, in excess of the balance of his account, whether by withdrawing cash, or causing a periodical payment in favour of RHG Mortgage Corporation to be made, or by causing a direct debit to be made on the account by PayPal. St George expressly reserved to itself the right to allow Mr Moore to overdraw his account in that way. There is no other way of reading the discretionary power reserved in cl 13.7, the entitlement to charge fees and interest in cl 13.8, and the discretionary powers in cll 14.4 and 15.3.

38. The Crown relied on cl 13.8(c), the obligation upon Mr Moore to repay the overdrawn amount immediately without further demand. It is clear that Mr Moore was in breach of that clause for the whole of the time his account was overdrawn. It is also clear that that clause entitled the Bank to commence proceedings against Mr Moore at any time, without first making a demand. However, it is also plain that Mr Moore’s breach did not of itself bring the contract to an end. It is sufficient to observe the express right given by cl 13.8(b) to calculate interest “each day” on the amount overdrawn that the contract contemplated a customer being in continuing breach of his or her obligation to repay the overdrawn amount immediately.

39. The Crown maintained that cl 13.8(c) provided, albeit impliedly, that Mr Moore was not authorised to make a further debit onto his account if it were already overdrawn. Mr Moore disagreed. He contended that conspicuous by its absence was any clause which in terms precluded a customer from making a further debit from an already overdrawn account.

40. I reject the Crown’s construction of the clauses. There is nothing express to indicate that St George was unable, in its discretion, to approve a second and subsequent transactions while the account was overdrawn. There is nothing, in my view, which impliedly cuts down the generality of the discretion reserved to the Bank to permit the account to be overdrawn. The fact that the Bank charged a fee, and interest at overdraft rates, tells against an inability on the part of its customer to request further advances. It would be highly inconvenient to both parties if the Bank was unable, in its discretion, to permit debits upon its customer’s already overdrawn account. Further, cl 14.2 provided that a periodical payment authority would remain in force until the Bank received (a) a notice from the customer to cancel or vary the authority, or (b) notice of the death or bankruptcy of any Account holder. On the Crown’s submission, authority to make periodical payments would also have to have been revoked upon the account going into a negative balance. But the Bank reserved its discretion to continue (or cease) making such payments under cl 14.4.

41. The Crown’s response in writing was:

“This argument ignores the fact that there was no overdraft attached to the account, there was no money coming into the account and any requested transactions were made in the knowledge that there was no credit in the account. The appellant must have known that there was a problem within the St George Banking system but did nothing to alert the bank to the problem, and instead continued to request transactions which caused ‘a computer, a machine or any electronic device to make a response’ and given that there was no money in his account the appellant was not authorised to cause ‘the computer, a machine or any electronic device to make that response.’”

42. In oral submissions the Crown reiterated that there was no overdraft, and that Mr Moore must be regarded as behaving dishonestly.

43. I agree that Mr Moore must have known there was a problem within the Bank. There were, of course, two problems: an initial problem in permitting the account to reach a negative balance, and a systemic problem in failing to detect that hundreds of thousands of dollars were being overdrawn from the “Complete Freedom” account at the Goulburn branch over many months. But it is not to the point to say that “there was no overdraft attached to the account”. That is merely to say that the Bank had not decided in advance to permit the account to be overdrawn. The terms of the banker customer relationship expressly permitted the Bank to lend Mr Moore money at its discretion and subject to the charging of fees and interest. Mr Moore’s requests were requests for further loans. The Bank acceded to those requests. It charged a fee and interest for doing so. All this was in accordance with the terms of the contract between it and Mr Moore.

44. The Crown also responded that “the argument is technical”. I do not understand that to be an answer to a legal submission responding to a criminal charge. But the matter can also be addressed substantively. The charge was one of obtaining a financial advantage by deception. There was no deception in the behaviour of Mr Moore. It is for that reason that the Crown relied and relies on the expanded definition of “deception” in s192B. The issue is simply whether the expanded definition of “deception”, which goes beyond ordinary notions of deceit, is satisfied by the conduct in which Mr Moore had engaged.

45. The Crown relied on R v Evenett (1987) 24 A Crim R 330, which was a reference by the Attorney-General following a directed acquittal. Mr Evenett was charged with theft, following withdrawals from ATM machines at times when the machine was “off-line” and would issue up to $500 even if that exceeded the funds in the account. The Queensland Court of Criminal Appeal found that the judge was wrong to direct an acquittal. The Court was critical of the failure to tender the terms and conditions on the account. Williams J said at 335 that:

“The conditions of use at the time of the transaction are, in my view, of critical importance. They will determine whether or not there has been any breach of the relevant banker-customer relationship, and also will be critical to the termination whether or not the customer has acted fraudulently when using the card.”

46. I respectfully agree. Evenett confirms the conclusion I have reached. In Evenett it appears that the terms of the contract did not permit an ATM withdrawal which exceeded the funds in the account. In the present case, the terms of the contract gave the Bank power to approve a debit which left the account overdrawn.

Orders

47. Section 192E authorises an alternative verdict of larceny. No submissions were made in this Court as to the alternative verdict, and it appears not to have been part of the Crown case at trial. As presently advised, I consider that the Crown was correct not to rely on this possibility. There are at least two difficulties. The first is that High Court authority holds that larceny at common law can only be committed of property which is capable of physical possession and removal: Croton v The Queen (1967) 117 CLR 326 at 330. As Barwick CJ said:

“But, though in a popular sense it may be said that a depositor with a bank has ‘money in the bank’, in law he has but a chose in action, a right to recover from the bank the balance standing to his credit in account with the bank at the date of his demand, or the commencement of action. That recovery will be effected by an action for debt. But the money deposited becomes an asset of the bank which may use it as it pleases. Neither the balance standing to the credit of the joint account in this case, nor any part of it, as it constituted no more than a chose in action in contradistinction to a chose in possession, was susceptible of larceny, though it might be the subject of misappropriation.” [Citations omitted.]

48. The second is that here the Bank continued to lend Mr Moore funds, and the imposition of fees and interest are consistent only with its doing so consensually.

49. It follows that the guilty verdict on count 1 cannot be sustained. Count 2 was wholly dependent upon count 1. If there was no dishonest obtaining of a financial advantage by deception, there was no dealing with the proceeds of crime.

50. It also follows that it is unnecessary to deal with the application for leave to appeal against sentence. I propose that there be a grant of leave to appeal, that the appeal be allowed, that the conviction on counts 1 and 2 be quashed, and that the appellant be acquitted in respect of those counts.

51. FAGAN J: I agree with the orders proposed by Leeming JA and with his Honour’s reasons generally. I concur in particular with the construction of the banking conditions which is set out at [37] – [43].

52. Section 192B(1)(b) of the Crimes Act 1900 (NSW) appears to me to expand the meaning of “deception” for the purposes of Pt 4AA of the Act to embrace a concept which has nothing in common with the notion of deception as otherwise understood in the law of criminal fraud. In the absence of statutory extension “‘deceit’ and ‘deception’ have essentially the same meaning” in the criminal law: Director of Public Prosecutions v Ray [1974] AC 370 at 374. Unless the Crown was able to rely upon the extended definition in this trial, the charge under s 192E of obtaining financial advantage by deception could only have been left to the jury if there had been at least some evidence capable of satisfying them of each of the following matters:

1. a representation upon some matter was made, either expressly or by implication, by the appellant to the Bank (or to some relevant third party, the misleading of whom could result in the Bank being induced indirectly: R v Kovacs (1974) 58 Cr App R 412; Commissioner of Police for the Metropolis v Charles [1977] AC 177 at 192; R v Clarkson [1987] VR 962 at 980; (1987) 25 A Crim R 277; Ho v R; Szeto v R (1989) 39 A Crim R 145 at 147; Moylan v Western Australia [2007] WASCA 52; (2007) 169 A Crim R 302 at [60] – [69]);

2. the representation was untrue;

3. the appellant knew the representation to be untrue (or he knew there was a substantial risk it was untrue but proceeded to convey it with indifference as to its truth or falsehood: s 192B(2); R v Smith (1982) 7 A Crim R 437 at 440, 441);

4. the deception constituted by the making of the false representation caused the Bank to confer some financial advantage on the appellant or to incur some financial disadvantage to itself (including that the direct inducement of the deception may have acted upon a relevant third party whose actions in turn caused the Bank to confer a benefit on the appellant or to incur a disadvantage itself, as in R v Kovacs and the other cases cited at (1) above).

53. There was no evidence of any of these elements. For that reason, at trial the Crown relied entirely upon the expanded definition of “deception” in s 192B(1)(b). This meant, in the circumstances of the case, the Crown had to prove that the appellant was not “authorised” to effect the relevant transfers of funds by way of (a) debit against his Complete Freedom account and (b) cash withdrawal or credit to other bank accounts (of his own or of third parties), using debit or transfer requests submitted through the Bank’s electronic banking system. The relevant withdrawals and transfers were those which caused his Complete Freedom account to become overdrawn and the debit balance thereafter to increase.

54. As Leeming JA has shown, the conditions of the appellant’s account quoted by his Honour at [34] do not of themselves forbid electronic transactions which would cause the appellant’s account to become overdrawn or would cause an existing debit balance to be increased. The conditions envisage that the Bank may “allow” such transactions (or not) as a decision and action separate from the conditions themselves. The conditions provide that “allowance” of withdrawals and transfers which may commence or increase an overdraft is to be a matter of ad hoc, case to case determination. The question of whether the Bank “authorised” the impugned transactions was thus one of fact concerning how the Bank acted in relation to each transaction when it was submitted by the appellant.

55. The evidence showed that with respect to allowing or disallowing debit transactions, the Bank acted through the configuration and operation of its electronic system. The Crown’s principal witness, Mr Hayes, was a senior investigator for the Westpac group of companies. He explained that a Bank officer had given the appellant’s account “relationship officer status” when it was opened. This was “human error” (T 13.9). Normally, for an account which had this status but had no agreed overdraft facility (such as the appellant’s account), transactions which would overdraw would be referred to the relationship officer and would be allowed unless that officer instructed that the transaction be disallowed (T 19). A relationship officer would not normally be assigned to a retail account such as this (T 21.10) and there was no evidence that such an assignment was made in this case. Mr Hayes did not know of one and he had investigated the account (T 36.45). On that state of the evidence the only available conclusion was that the Bank’s systems were so configured with respect to this account that all overdraft transactions would be allowed because there was no relationship officer assigned to take responsibility for disallowing them.

56. With respect to regular periodic debits Mr Hayes’ evidence was that direct debit authorisations were generated by third-party payees, submitted to the Bank and processed at a service centre at Concord West. There, “an officer in the bank would have been assigned to load [the direct debit facility] into the system” (T 33). Once the facility had been “loaded”, the electronic banking system was so programmed that debits would be effected in accordance with it (T 36).

57. The evidence showed that whenever the appellant submitted one of the impugned electronic withdrawals or transfers by which he ran up his debit balance to more than $2.1 million, whether by inputting an individual transaction electronically or pursuant to a direct debit facility which he had caused a third party to submit to the Bank, the transaction was effected. Thus, each submitted transaction was, in fact, “allowed” by the Bank. That is, each was, in fact, authorised.

58. It is not necessary to consider the terms of the learned trial judge’s written and oral directions to the jury on the elements of the charge under s 192E. There was no evidence upon which the jury could have been satisfied that the appellant was “not authorised to cause” the Bank’s systems to honour and effect each of the impugned transactions, thereby accumulating the substantial debit balance on his account. On the Crown’s own evidence the Bank did “allow” each transaction and the consequent overdraft was thus “allowed”, as envisaged in the conditions which attached to the account. The obligation under cl 13.8(c) to repay the overdraft immediately cannot alter the character of any transaction by which the overdraft was created or increased. The obligation to repay the debit balance does not contradict or negate the fact that each transaction was “allowed” within the meaning of the banking conditions and in that sense, in fact, authorised.

59. N ADAMS J: I agree with the judgment of Leeming JA and with the orders that his Honour proposes. I wish to make an additional observation concerning the element of “deception” required to be established to prove the offence created by s 192E of the Crime Act 1900 (NSW). An offence under that section is completed if it can be established to the criminal standard that a person: did an act, by deception, dishonestly, by which he obtained (in this case) a financial advantage. It is an element of the offence that the victim be deceived in some way. As Leeming JA has observed at [24], there is no evidence in this matter that the appellant made any representation to the bank that had any causative role in the funds being loaned to him.

60. Although I agree that this appeal can be resolved without the need to determine whether s 192B(1)(b) of the Crimes Act is a provision that deems there to be a deception, even if none can be identified, for my part I have some doubt regarding such a construction. The definition relied upon to establish the appellant’s guilt at trial was that to be found in s 192B(1)(b). Section 192B(1)(b) relevantly provides that “deception” means “any deception, by words or other conduct, as to fact or as to law, including … (b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make”. Read in this way it is apparent from the text that some form of deception is still required. Although the word “deception” is repeated in s 192B(1)(a) and is not repeated in s 192B(1)(b), that is explicable on the basis that s 192B(1)(a) is directed at a person being deceived whereas s 192B(1)(b) is directed at a computer which, not having human frailties, cannot be “deceived” in the same way.

61. To illustrate this by way of a hypothetical example, if an employee of the Bank had entered false details into a bank computer to create an overdraft account when such an account had not been approved and, as a result, an overdraft account was created, such conduct would fall within s 192B(1)(b) and it would still involve a deception. This is to be contrasted with the present case, where the appellant did not deceive the Bank in any way. That the appellant acted dishonestly is beyond dispute, but the section requires there to be some act of deception in addition to the element of dishonesty.

62. The definition of deception in s 192B(1)(b) was no doubt extended to cover circumstances where the deception involves a computer rather than a person. It seems to me that there is nothing in the text of the words in s 192B(1)(b), when read in its context in s 192B within Part 4AA of the Crimes Act, that indicates any legislative intention to remove the element of deception from an offence contrary to s 192E by way of deeming provision. Although I am satisfied there is no ambiguity in the language of s 192B(1)(b) I note further that in the Second Reading Speech to introduce the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009 (NSW) the then Attorney General the Hon. John Hatzistergos observed the following:

“Fraud, which is the dishonest deception by one person of another to obtain property or financial gain or to cause a financial disadvantage, is an area of crime that has exploited the opportunities opened up by technology, and that makes it hard to police…….

The principal   fraud offence is contained in clause 192E which makes it an offence for a person by any deception to dishonestly obtain another's property, obtain any financial advantage or cause any financial disadvantage. This offence carries a maximum penalty of 10 years imprisonment. This one provision clearly covers most fraud cases, and ensures that only people that have been deceptive and dishonest will be prosecuted…

The part also contains a number of definitions for the purposes of fraud and forgery, and the concepts of ‘obtain property’, ‘obtain financial advantage’ and ‘cause financial disadvantage’ are clearly explained. ‘Deception’ is also defined in this part and includes a deception exercised on a machine such as a computer or automatic teller machine” (New South Wales, Parliamentary Debates, Legislative Council, 12 November 2009, 19507-19509 (John Hatzistergos, Attorney-General). [emphasis added]

63. Despite my reservations concerning the construction of s 192B(1)(b) of the Crimes Act advanced by the Crown, I agree with Leeming JA that this appeal can be resolved without the need to determine that issue.

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Decision last updated: 01 December 2016