Getting Lost in the Borderland of Theft: R v Gao and R v Hurring

This article is an analysis of the related cases R v Gao and R v Hurring tried in the New Zealand District Court. These criminal proceedings arose out of an error of Westpac bank that attracted worldwide attention, namely the granting of an overdraft facility of $10 million when only $100,000 had been requested. The defendants were charged and convicted for their respective actions following that error, including drawing on the facility and spending or transferring the resulting funds. The principal charges against each were those of theft from Westpac pursuant to s 219 of the Crimes Act 1961. It is the thesis of this article that such theft charges were not available against either defendant. The article then proceeds to consider a range of alternative possible offences on the facts. It concludes that, at least in relation to Gao, charges of being an absconding debtor, or a party to defrauding creditors, might have been more appropriate, carrying lesser maximum sentences. The near fortuity that it was Gao’s company that applied for the overdraft may also have made theft from one’s own company a possibility against Gao (under s 220 of the 1961 Act), but that too would have involved very different charges from those brought.