Which case won?

The case for the customer
  • I opened the bank account in my own name using legitimate identification and conducted all transactions under my own identity.
  • Everything I did was easily traceable.
  • I didn’t do anything to cause the bank to let me withdraw money I didn’t have.
  • None of my actions involved any breach of trust and there was nothing covert about my behaviour. I didn’t lie to the bank at any point, I didn’t forge anything and I never used an alias or a disguise.
  • I didn’t deceive the bank by making withdrawals which the bank’s own systems permitted me to make.
The case for the bank
  • The customer knew that he was not entitled to withdraw money which he did not have.
  • His actions were systematic, calculating and sustained over a period of two years.
  • His method of channelling the money via PayPal to other sources is proof of his dishonesty.
  • His assertion that he thought he could do what he wanted with the bank account because we didn’t query or stop him is so unconvincing as to be laughable.
  • His increasingly audacious behaviour in withdrawing larger and larger sums from the account is inconsistent with his claims.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a31%
case b69%

Expert commentary on the court's decision

Molly Hayter
Molly HayterParalegal
"The court distinguished between 'dishonesty' - of which the accused was manifestly guilty - and 'deception', which was an additional element required for the charges against him to be proved."
Initial judgment in favour of the bank

The case was initially decided in the prosecution’s favour by the NSW District Court, where the customer was found guilty of both dishonestly obtaining a financial advantage by deception under section 192E(1)(b) of the Crimes Act 1900 and of dealing with the proceeds of crime under section 193B(2) of the same act.

He was sentenced to four years and six months in prison, with a non-parole period of two years and three months. (See R v Moore [2015] NSWDC 315.) He appealed the decision and was granted bail pending the appeal after spending five months in prison. (See R v Moore [2015] NSWSC 1262.)

Court of Criminal Appeal overturns District Court decision

The District Court decision was overturned by the Court of Criminal Appeal, which acquitted the man and quashed his convictions. (See Moore v R [2016] NSWCCA 260.)

Because the customer did not actually deceive the bank, the prosecution’s case relied on an expanded statutory notion of deception found in section 192B(1)(b) of the Crimes Act, which provides that deception includes “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”.

Terms and conditions of bank account central to innocence or guilt

Whether the man was authorised to make the withdrawals depended on the terms and conditions of the contract between him and the bank.

Those terms and conditions expressly provided for withdrawals in excess of the available balance, stating that the bank would charge fees and interest on overdrafts, calculated on a daily basis.

According to the Court of Criminal Appeal, the reference to interest being calculated “each day” meant that the bank envisaged customers remaining overdrawn for an unspecified period, rather than repaying their overdraft immediately.

Another crucial feature of the terms and conditions was that there was no clause stating that a customer could not make a further withdrawal from an account which was already overdrawn.

Prosecution unable to prove bank had been “deceived”

The Court of Appeal determined that as the bank had continued to lend money to its customer, his withdrawals had been “allowed” by the bank. In other words, each withdrawal had been authorised and so the prosecution’s argument about deception on the part of the customer could not succeed.

The court distinguished between “dishonesty” – of which the accused was manifestly guilty – and “deception”, which was an additional element required for the charges against him to be proved.

Since he was found not guilty of dishonestly obtaining advantage by deception, he was also not guilty of the second charge, dealing with the proceeds of crime, as no crime had been committed.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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