Complete Freedom

Posted on Jun 26, 2017 | 0 comments


On 1 December 2016, Luke Moore’s appeal against his conviction for dishonestly obtaining a financial advantage by deception was allowed by the Court of Criminal Appeal. Aspects of Leeming JA’s leading judgment (yes, they let equity lawyers sit in criminal appeals) are mildly amusing:

  1. Mr Moore opened (with a zero initial balance) 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“(at [4]);
  2. The account quickly ran into overdraft and kept going. When it was closed in August 2012 there was a negative balance of $2.1M;
  3. A police raid on Mr Moore’s home in December 2012, recovered inter alia signed pictures by Led Zeppelin, Bob Dylan, Guns N’ Roses, Foo Fighters and Usher, an Amy Whitehouse frisbee and the keys to an Aston Martin DB7 Vantage coupe. There was also a 2001 Maserati sedan, a 2006 Alfa Romeo 156 and a 6.1m boat. The list goes on (see [13]-[16]);
  4. His Honour observed (at [17]) that “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.”; and
  5. Also that: “It is plain that Mr Moore behaved not only extremely foolishly but also dishonestly” (at [19]).

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” (at [23]).

So, there you go, there was no deceit. …I doubt he’ll go very well in the inevitable civil proceedings.

Creative commons acknowledgment for the photograph.

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