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,…

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 Moore v The Queen

Details

AGLC: Moore v The Queen [2016] NSWCCA 260
Case: [2016] NSWCCA 260
Decision Date: 01 December 2016

CaseChat Overview and Summary

The appeal was heard in the High Court of Australia by three judges, who were called Gleeson CJ, McHugh and Gummow. The appellant was convicted of obtaining a financial advantage by deception contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). The appellant had opened a savings account with a bank, which had become substantially overdrawn over many months. The bank charged interest and fees on the overdrawn amount throughout the period. The appellant argued that the terms and conditions of the account did not provide for the bank to permit it to be overdrawn, and that he was not authorised to borrow the overdrawn funds. The appellant also claimed there was no additional element of deception in the offence. The court was required to determine whether the appellant's conviction was valid under the statute, and whether there was sufficient evidence to support the conviction.

The court considered the meaning of the statutory provision and whether the appellant's actions amounted to deception. The court held that the appellant's actions did not amount to deception because there was no additional element of deception beyond the dishonest appropriation of the bank's money. The court found that the appellant had opened the account in good faith and had believed that the bank would permit the account to be overdrawn. The court also held that the terms and conditions of the account did not prohibit the account from being overdrawn, and that the appellant had not been authorised to borrow the overdrawn funds. The court concluded that the appellant's conviction was not supported by the evidence and quashed the conviction.

The court ordered that the conviction be quashed and that the matter be remitted to the Court of Criminal Appeal for further consideration. The court held that the appellant's conviction was not valid under the statute and that the evidence did not support the conviction. The court also held that the appellant's actions did not amount to deception because there was no additional element of deception beyond the dishonest appropriation of the bank's money. The court concluded that the appellant's conviction was not supported by the evidence and quashed the conviction.

Orders