R v Moore [2015] NSWSC 1262

Supreme Court New South Wales

Medium Neutral Citation: R v Moore [2015] NSWSC 1262 Hearing dates: 6 August 2015 Date of orders: 06 August 2015 Decision date: 06 August 2015 Before: Hamill J Decision: Bail is granted subject to conditions. Catchwords: CRIMINAL LAW - BAIL – bail pending appeal – special or exceptional circumstances – fraud – unusual case – substantial overdraft through bank error – lengthy delay between trial and appeal – transcripts of trial not available – conditional bail granted Legislation Cited: Bail Act 1978 (NSW) Bail Act 2013 (NSW) Bail Amendment Act 2014 (NSW) Cases Cited: DPP v Mawad [2015] NSWCCA 227 El Hilli v Melville [2015] NSWCCA 146 Ilich v R (1987) 162 CLR 110 Kennison v Daire (1986) 160 CLR 129 R v Potisk (1973) 6 SASR 389 R v Young [2006] NSWSC 1499 Shields v New South Wales Crime Commission [2007] NSWCA 309 Westpac Banking Corporation v Ollis (2007) FCA 1194 Texts Cited: Steel, "Problematic and Unnecessary? Issues with the use of the Theft Offence to Protect Intangible Property" (2008) 30 Sydney Law Review 575 Category: Principal judgment Parties: Luke Brett Moore (Applicant) Crown Representation: Solicitors: Self-represented (Applicant) Solicitor for the NSW DPP (Crown) File Number(s): 2015/154901 Publication restriction: Nil

EX TEMPORE Judgment (REVISED) 1. Luke Moore makes a release application under the provisions of the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). He was convicted by a jury in Goulburn of two offences after a trial which concluded on 19 February 2015. Those are offences of dishonestly obtaining a benefit by deception and dealing with the proceeds of crime. The applicant was taken into custody shortly after the jury returned its verdicts and was subsequently sentenced by the Trial Judge, Judge Norrish SC, to a total sentence of four and a half years with a non-parole period of two years and three months. The non-parole period will expire on 17 May 2017. 2. The application first came before me in the bail list on 21 July 2015. Due to the obvious complexity of the matter and the busyness of the list, the matter was adjourned in order to obtain a date when the Court could hear the application. On 23 July 2015 I listed the matter for hearing today. Neither the solicitor nor the Crown Prosecutor who appeared for the Crown at the trial was available to appear and the Crown is represented today by Mr Lee. 3. Because the application follows the applicant's conviction and sentence on indictment, the provisions of s 22 of the Bail Act apply. That section requires the applicant to establish that there are "special or exceptional circumstances" that justify a decision to grant bail. The content and operation of that section was considered in El Hilli v Melville [2015] NSWCCA 146. That case was also a case involving allegations of large scale fraudulent conduct and involved unrepresented litigants. However, there are very few other comparisons when one analyses the relevant circumstances of each case. 4. As I said in El Hilli, the requirement for an applicant for bail pending appeal to establish special or exceptional circumstances is one of long-standing and has been considered by single judges of the High Court of Australia in the exercise of its inherent jurisdiction as well as by the Court of Criminal Appeal in the context of s 30AA of the Bail Act 1978 - see the cases collected in El Hilli at [17] and the analysis of those cases from [18] to [26]. 5. I also said that the provision in sub-s 22(2); whereby the requirement to show cause in relation to certain offences and circumstances is supplanted by the special or exceptional circumstances test, suggest that the special or exceptional circumstance test is at least as onerous as the show cause requirement. I probably did not go far enough. It is a more onerous test. [1] 6. The applicant in the present case relies on a combination of circumstances to establish that there are special or exceptional circumstances: El Hilli at [29] and the comments of Johnson J in R v Young [2006] NSWSC 1499 at [20] when considering the question of exceptional circumstances under the 1978 Act in a murder case. 7. The factors relied upon here include a number of matters which are relevant to the questions that would arise under ss 17 to 19 of the Bail Act, that is, a consideration of "bail concerns" and "unacceptable risk". None of those matters either individually or in combination would constitute special or exceptional circumstances for the purpose of s 22. However, the applicant relies on them in combination with the length of time that he will remain in custody pending his appeal, relative to the length of the non-parole period and what he submits to be the reasonable prospects that his appeal will be successful. 8. Those latter two factors are typically central to an assessment of any case where appeal bail is sought and special or exceptional circumstances need to be established. The Crown very fairly concedes that the application of s 17, 18 and 19 would not lead me to the conclusion that there are unacceptable risks in the present case. From this I infer that absent the provisions in s 22, the Crown would not oppose bail. However, the Crown submits firmly that nothing that has been put to me today satisfies the requirements of s 22 or meet the description special of exceptional circumstances. 9. In making that submission Mr Lee concedes that he is hamstrung to a degree by the fact that he did not appear in the proceedings at first instance and is not in a position to meet a number of legal arguments made on behalf of the applicant. He declined the opportunity to seek an adjournment of the application to allow him more time to consider those submissions. He took the entirely appropriate position that there is on the record a conviction by a jury arising from a trial in which the directions of law are not flagrantly or patently incorrect. 10. I have been provided with what I take to be the original police facts sheet which sets out with reasonable clarity the circumstances of the alleged offending as well as the summing-up delivered by Judge Norrish on 18 and 19 February. 11. The facts disclosed in those documents establish that the applicant opened a bank account in March 2010 with the St George Bank. He used his own name and personal details and there is no suggestion that his action in opening that account was attended with any deceptive conduct. At that time he held an account described as a "Margin Lending Account" with the same bank. As a result, the new bank account "was loaded with and subject to the same conditions as the Margin Lending Account". 12. One of those conditions which carried over from the Margin Lending Account was the allocation of what was described as "RO Status". "RO" refers to Relationship Officer and the process seems to be that where an account was overdrawn or where the bank customer sought to take the account into overdraft, or further into overdraft, the matter was referred through the bank's normal credit approval systems to the Relationship Officer. 13. It seems to have been common ground at the trial that the bank's system broke down and as a result the applicant was able to overdraw the account to a very substantial degree. Between 21 December 2011 and 13 July 2012 a total of one million seven hundred and eighty nine thousand dollars had been obtained or credited to a PayPal account which was operated by the applicant. 14. I interpolate here that if the Relationship Officer failed to respond to an overdraft request the bank's system was to allow the overdraft to proceed. There were a number, perhaps fifty withdrawals, or overdraws between the period of December 2011 and July of 2012. By that latter date the applicant had acquired a lifestyle of some luxury. He had acquired, amongst other things, a six-metre boat, a Maserati sedan, an Alfa Romeo sedan, a collection of valuable paintings, numerous items described as "memorabilia" and various items of jewellery. Those items were the subject to a second charge being a charge of dealing with the proceeds of crime. 15. The thrust of the submissions made by the applicant, and it seems a substantial part of the case he conducted at trial, was that there was no positive or active deception of the bank. He tendered a newspaper article in which an officer of the bank was quoted as saying that the matter was a "one off" incident of "human error". 16. At the hearing of the bail application, Mr Lee submitted that the deception was overdrawing the account to such a substantial degree in circumstances where the applicant had no intention to repay the money. The learned Trial Judge described the deception in his summing-up to the jury in the following way: "The Crown says that the deception was exercised by the accused because he had no authority - now I know that has been referred to by counsel for the accused - but he had no authority to overdraw the account and overdraw the account to the extent of which the account was overdrawn". 1. The learned Trial Judge went on to direct the jury that the deception; "may be intentional or recklessly practised by the accused and that the Crown had submitted that he may have initially been reckless in the sense that he did not appreciate the extent to which he could overdraw the account but as time went on he must have acted intentionally as is evidenced by, the Crown says, by the significant sums of money that he eventually drew down from the account". 1. The judge went on to direct the jury as to the element that the act and the deception to be dishonest and his Honour said: "To act dishonestly in this context means to be dishonest to the standards of ordinary people and it must be known by the accused to be dishonest according to the standards of ordinary people. You, the jury, are ordinary members of the community. That is not meant in a condescending way. You are representatives of the community and you are able to judge what the standards of ordinary people in our community are". 1. His Honour also directed the jury in relation to the elements of dishonesty and deception as follows: "It does not have to relate to all of the transactions that are particularized in exhibit A but it must be established in relation to transactions that are evidenced in exhibit A between those two dates". 1. In relation to the second count his Honour directed the jury that it would not arise unless the jury was satisfied that the offence alleged in count one had been established beyond reasonable doubt. For that reason, the contest at trial and indeed before me on the bail application has focused on the deception count. 2. The applicant made a number of points in relation to the matter, some of which appear to me to be devoid of merit. For example, the applicant submitted, in effect, that the Trial Judge had erroneously conflated the two elements of deception and dishonesty. My perusal of the Judge's summing-up suggests that this did not happen. 3. The applicant also sought to make an argument that might be described as one of "selective prosecution". In other words, he drew my attention to cases where people who had been overpaid by a bank or who have overdrawn accounts with banks had not been subject to criminal prosecution. In particular, he referred to the decision of the Federal Court in Westpac Banking Corporation v Ollis (2007) FCA 1194 and Shields v The New South Wales Crime Commission [2007] NSWCA 309. Those two cases related to the same person (Mr Ollis), who had engaged in conduct that might generally be thought to be quite similar to that of the applicant in the present case. He had drawn on accounts knowing or allegedly knowing that he was not entitled to do so to a very substantial degree. It seems that the amount in question was around eleven million dollars. The applicant points out - and I have no reason to doubt it - that Mr Ollis was not charged with any criminal offending in spite of the fact that Mr Ollis' conduct was more flagrant than that of the applicant both in terms of the amount in consequence of the bank's error and the nature of the deception which was said, in that case, to be clearer. I note, on the other hand, that there was some suggestion that Mr Ollis may have had an intention to repay the money (although the applicant tells me that he did not concede at trial an absence of intention to repay the money). 4. Even accepting all of that to be so, the fact that one person is charged whilst another is not is not a basis under New South Wales law to impeach the conviction of the person who was charged. This even applies as between co-offenders. Both police and prosecuting authorities are provided with a lively discretion as to who is and who is not to be charged. I am unable to see merit in this aspect of the applicant's proposed appeal. 5. The applicant also made reference to what he described as the sanctity of the contract and the concept of a privity of contract between him and the St George Bank. As far as I could follow, the applicant was contending that the nature of the contract or relationship between him and the bank was such as to exclude a third party such as the New South Wales Police Force or the Director of Public Prosecutions from imposing sanctions and, in particular, criminal sanctions. 6. He submitted that the sanctions for breach of contract were civil remedies only. I take this to be, in part, a reliance on the law of consent. In any event, and however one puts it, the proposition need only to be stated to be rejected. There is no substance to this assertion. 7. The applicant also sought to establish that his conduct could not amount to theft or larceny at law, and took me to cases such as Ilich v R (1987) 162 CLR 110 and R v Potisk (1973) 6 SASR 389. On my quick perusal of those cases, they seemed to involve a single transaction, which distinguishes them to a very large degree from the circumstances which prevailed here. 8. In any event, in the case of Shields v New South Wales Crime Commission [2007] NSWCA 309, Beazley JA, as her Honour then was, considered the question of whether the conduct there could amount to larceny and concluded that, indeed, it could. "47. The Court, after referring to the "interesting argument" advanced on behalf of the appellant, stated at 132 [4]: "… The fact that the Bank programmed the machine in a way that facilitated the commission of a fraud by a person holding a card did not mean that the Bank consented to the withdrawal of money by a person who had no account with the Bank. It is not suggested that any person, having the authority of the Bank to consent to the particular transaction, did so. The machine could not give the Bank's consent in fact and there is no principle of law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the Bank consented to the withdrawal of up to $200 by a card-holder who presented his card and supplied his personal identification number, only if the card-holder had an account which was current. It would be quite unreal to infer that the Bank consented to the withdrawal by a card-holder whose account had been closed. The conditions of use of the card supplied by the Bank to its customers support the conclusion that no such inference can be drawn." 48. This case is no different. The contents of the Westpac investigation report included information that Ollis knew the conditions of the operation of the ATR facility. He knew the collections area of the bank had placed a ban on his personal account responding to the ATR facility. He also knew that due to a "computer glitch" that ban was not recognised by the ATR facility and he decided to take advantage of that failure and continue to draw on the account in an amount totalling almost $11m. 49. Although the Westpac investigation report indicated that Ollis intended at some stage to repay the funds that he had withdrawn, he did not intend to repay the moneys that he withdrew on each occasion. Rather, he intended to repay other moneys so as to replenish his account. In my opinion, all the elements to constitute the offence of larceny have been alleged in one form or another in its report. The material, therefore, provided a sufficient basis upon which Mr Spark could form the suspicion to which he deposed in his affidavit. In other words, there were reasonable grounds upon which Mr Spark could form a suspicion that Ollis had engaged in a serious crime related activity or activities as required by s 10 of the Act." 1. The applicant also took me to Kennison v Daire (1986) 160 CLR 129. That case involved a customer using an ATM, in circumstances where a glitch in the system allowed him to take money that was not his. It was put on his behalf that the bank had thereby consented. The High Court rejected that submission. In any event, much of the fundamental basis of this submission does not apply to the offence with which the applicant was actually convicted, a point made in footnote 99 of an article referred to in the course of submissions by the applicant: see Steel, "Problematic and Unnecessary? Issues with the use of the Theft Offence to Protect Intangible Property" (2008) 30 Sydney Law Review 575 at 589. 2. Mr Moore also contended that his case was not properly presented at the trial and, indeed, that he was incompetently represented there. I accept the Crown submission that the material available to me at this stage, which is very limited, means that it would be quite irresponsible of me to make any finding adverse to counsel in relation to that matter. I do note, however, that that submission will be advanced by the applicant on the appeal. 3. A real conundrum in the present case arises from the fact that the applicant appears unrepresented not through any choice of his own but as a result of the failure of the Legal Aid Commission to provide him with representation. That is not meant as a criticism of the Commission. The circumstance in which that occurred arise as a result of circumstance beyond the Commission or the applicant's control. 4. When the matter was first mentioned in the bail list, the solicitors then present from the Commission indicated to me that they did not appear for the applicant. It was also indicated that he was privately represented on the appeal. The applicant informed me that he had retained a private solicitor and a private barrister, but that they were acting in the case on an assignment or an assigned grant of legal aid. He nominated his solicitor, and I had my Associate make contact with the solicitor in the period of the adjournment. The solicitor replied in the following terms: "I have been assigned Mr Moore's matter by the Legal Aid Commission of New South Wales. It is a limited grant to obtain an advice on merit in relation to a proposed CCA all grounds appeal. Mr Stratton SC has been briefed. At this stage my office is awaiting the trial transcript, et cetera, as we did not act for Mr Moore previously. As an aside, I have been informed that some trial transcript will never be available due to a transcription error. The policy of the Legal Aid Commission, as I understand it, is for the Commission's in-house solicitors to appear in all legally aided bail applications." 1. The solicitor went on to say that he regretted that he did not act on the bail application and could not further assist the Court. He said that he would attend if directed to do so. I elected not to direct him to attend. 2. It will be seen that as at the date of that email to my Associate, which was 21 July 2015, the full transcript of the trial remained outstanding. Indeed, when the matter came on this morning Mr Lee indicated that the DPP is unable at this stage to obtain a copy of the Trial Judge's remarks on sentence. In the result, senior counsel is not yet in a position to provide any advice and, accordingly, the matter has proceeded without formal grounds of appeal even having been formulated. That is a most unusual circumstance. Ordinarily, when a matter attracts the provisions of s 22 (and s 30AA before it), an applicant would present to the Court with the grounds of appeal clearly stated, and preferably with written submissions in support or, if appropriate, the advice from counsel upon which the grounds are based. That has not happened in this case for the reason that senior counsel is yet to be briefed with the transcripts which are not now, and may never be, available. 3. Whilst the factual circumstances of the offending is not, as I have recounted them above, unduly complicated, it was a trial that lasted in the District Court for some time and involved a significant amount of documentation. The questions of principle that Mr Moore seeks to agitate are difficult, complex and in some cases fundamental. I anticipate that even when all of the material is available, it would take senior counsel, in the course of a busy practice, some time to arrive at his opinion. 4. Accordingly, in the most unusual circumstances that here prevail, and given the delay which is already in the order of 6 months since Mr Moore was convicted and taken into custody, I propose to proceed with the bail application in spite of the absence of formal grounds of appeal. This should not be seen as a precedent, and arises through the peculiar and almost unique circumstances of this case. Ordinarily, it will be incumbent upon an applicant to establish, by reference to grounds of appeal and submissions, even in draft form, what arguments are to be advanced in the Court of Criminal Appeal and whether those arguments have any real merit. 5. However, even though I will proceed with the application, it places the applicant in the difficult position of attempting to establish the merit of his case in the absence of any grounds. Indeed, it places me in the position where I cannot realistically come to any concluded or informed view as to the merit or prospects of the proposed appeal. 6. However, I have come to the conclusion that the case is an unusual one. Indeed, the nature of the deception here asserted is most unlike the majority of cases of fraud. That is not to say that the Crown case was not established beyond reasonable doubt, or that there was any error in the trial that will operate to vitiate the verdicts. Mr Lee, with admirable candour and fairness, conceded that "it is an unusual case" and that it is not a "run of the mill fraud case". 7. In view of the questions which arise as to the precise nature of the deception that the accused is alleged to have perpetrated, considerations around his intention, that is whether it was deliberate or reckless, and the parts of the summing-up that suggested the jury may not be satisfied in relation to all of the transactions referred to in annexure A, I have concluded that Mr Moore's appeal may enjoy some prospects of success. That is a very guarded assessment, and it is necessarily so in view of the limited nature of the material available. 8. If that was all that Mr Moore relied on, I would not be able to find that there are special or exceptional circumstances justifying the grant of bail. However, there are a number of other matters which are relevant to that question, most important of which is the likely length of time that he will spend in custody pending the outcome of his appeal. It is necessary to make an estimate of that, even though the information upon which that estimate is made is imperfect and incomplete. But it seems to me that it is unlikely that the grounds of appeal and written submissions will be filed in the next month or so, given the other commitments of senior counsel who retains the brief. It may also be, as Mr Moore speculates in argument, that the notice of intention to appeal, which currently is due to expire in November, may be extended further. Much will turn on when the material from the trial is available to the solicitors. Assuming that the submissions were filed promptly thereafter, the likely appeal date would be in the first half of next year. 9. It is difficult to envisage circumstances in which Mr Moore will have his appeal dealt with to finality before the expiration of a period of at least one year, since he was taken into custody following the jury's verdict. Indeed, it may be even longer than that. In any event, given that his non-parole period is 2 years and 3 months, it is likely that he will have served up to, or in excess of, half of that period before his appeal is dealt with. That is a significant factor and one to which I give substantial weight in considering the question under s 22. 10. The other matters upon which Mr Moore relies are matters that are relevant to any other or normal bail application and would not, as I have already said, amount to special or exceptional circumstances in and of themselves. However, they are also relevant to the accumulation of circumstances upon which Mr Moore relies. 11. The Crown concedes, as it must, that he has very little on his criminal history. When one takes out the matters on the bail report which were withdrawn or dismissed, it seems that there is just one offence of failing to leave premises when asked to do so, for which he was placed on a 12 month good behaviour bond without the recording of a conviction. Otherwise, it seems he has no previous offences. He certainly has no history of violence. 12. Further, and this was the basis of the Crown's very fair concession that it is not a case where there are unacceptable risks for the purpose of s 19 of the Act, Mr Moore was on bail from 13 December 2013 until 19 February 2015. In that period, he complied with extremely onerous bail conditions for the first 4 to 6 months. When those conditions were varied and made less stringent he continued to comply. Significantly, he attended his trial even when the possibility of conviction and the inevitability of a gaol sentence loomed as the trial progressed. The trial judge allowed him to have bail when he adjourned the summing-up from 18 to 19 February 2015. 13. Mr Moore also refers to the fact that his mother has a degenerative back ailment which causes her a significant disability. Further, she (that is the mother) has the care of Mr Moore's younger brother, who is only eight years of age, and Mr Moore's presence in the family home would be of some assistance to her. I reiterate that none of these matters of themselves would constitute special or exceptional circumstances. 14. I have found the application a difficult one to resolve. It is particularly difficult to assess the prospects of success of the appeal, although what is clear is that for a case of fraud it has some unusual features. The absence of any risks, along with the length of time that he is likely to be in custody awaiting his appeal, combined with those unusual factual circumstances have ultimately persuaded me that there are special or exceptional circumstances justifying the grant of bail. 15. In dealing with the question of special or exceptional circumstances, I have considered many of the matters that are relevant to bail concerns under s 17 and unacceptable risks under s 19. 16. There is little doubt that the circumstance in which Mr Moore now finds himself is such that there must be a risk of flight, to some degree. 17. However, I do not find that there is a bail concern in relation to him committing serious offences while on bail. His criminal history does not support such a conclusion. And the offences here committed were, whilst repetitive, opportunistic and the result of an error made by the bank. That circumstance is unlikely to repeat itself. It seems that the likelihood that he will commit further offences whilst on bail is but a minimal one. 18. I am unable to identify any bail concern relating to his interfering with witnesses, or causing harm to any individual member of the community or the community at large. 19. So that the only bail concern is that he will fail to appear. That is, of course, a significant matter, but it is one that can be met by the imposition of similarly strict bail condition as those to which he was subjected during the period of adjournment or remand leading up to the trial. 20. For those reasons I propose to grant the release application and allow conditional bail. 21. Bail is granted on the following conditions 1. To be of good behaviour. 2. To report to [REDACTED] Police Station twice daily between the hours of 8am and 10am and 4pm and 6pm. 3. To live at [REDACTED]. 4. To appear at the Court of Criminal Appeal on such date that his appeal is listed for hearing. 5. To prosecute his appeal with expedition. 6. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor). 7. The applicant is not to be absent from the address at which he is required to live between the hours of 7 pm and 7 am except in the case of a medical emergency. 8. Not to apply for any new passport or travel document. 9. Not to go within 500m of any point of departure from the Commonwealth of Australia. 10. The applicant is to enter into an agreement without security under which he agrees to forfeit $5,000 if he fails to appear before court in accordance with the bail acknowledgment. 11. One acceptable person is to deposit acceptable security as security for the payment of $ 10,000 which he agrees to forfeit if the applicant fails to appear before court in accordance with the bail acknowledgment. 12. To present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.