Newsflash: Victorian Appeals Court finds stealing Bitcoin is a crime

The Victorian Court of Appeal has endorsed the view that bitcoin (BTC) is a form of property and that its misappropriation is capable of being prosecuted as theft. The judgment follows an appellate decision of the Supreme Court of Tasmania’s recognising that Bitcoin is property but endorsing the view that it does not neatly fit within the existing categories of chose in action and chose in possession.

Background

In Connor Yeates (A Pseudonym) v the King [2025] VSCA 288, the prosecution alleged that the applicant was guilty of theft by transferring BTC that was not his to a second wallet that was under his control. The alleged conduct involved a police raid on Victorian premises at which a Trezor hardware wallet was recovered.

The applicant submitted that the trial judge erred because BTC is not considered 'property' for the purposes of proving theft. ‘Property' is defined under s 71 of the Crimes Act as ‘money and all other property real or personal including things in action and other intangible property’.

The applicant argued at trial that BTC was ‘neither money nor property but instead a string of code in a distributed computer base’ (i.e. mere information). If this argument were to be accepted, it would be impossible to prove a theft-related offence in respect of BTC for Victorian law purposes as it would not involve the misappropriation of property.

Judgment

The Court of Appeal addressed five main issues in their reasoning. Before turning to these issues, the Court canvassed both the technical nature of BTC (keys, UTXOs, blockchain mining preventing double-spending) and the legal concept of 'property' (bundle of rights; the non-strict possession/action dichotomy); and the recognition of a third subset of intangible property, first discussed by Kitto J in the case of National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation (1954) 91 CLR 540).

Question 1: Is Bitcoin information?

It is commonly understood that mere information is not considered property and therefore cannot be stolen (besides of course, intellectual property which is a legal category of information that is protected by law). The Court distinguished BTC from mere information by emphasising the rivalrous control of BTC, the ability to exclude people as a matter of fact via private keys, and the systems of transfer recording that underpins blockchain technology.

Bitcoin would be pointless if it did not solve the double spending problem which is, at its core, one of exclusive possession and/or control. A coin, be it physical or digital, is possessed and/or controlled by a person to the exclusion of all others. When either is transacted, it is possessed and/or controlled by another to the exclusion of all others. Ownership by one person prevents ownership by another.

In this regard, the Court found no obstacle in dealing with the ledger based and fungible nature of BTC, distinguishing its rivalrous nature from mere information.

Question 2: Does it satisfy the essential legal characteristics of property as per National Provincial Bank Ltd v Ainsworth?

The Court then examined the classic 'Ainsworth' test, being the primary test as to whether something constitutes 'property'.

Lord Wilberforce in the Ainsworth case set out 4 essential characteristics of property, being that:

(i) the property is definable;

(ii) the property is identifiable by third parties;

(iii) the property is capable in its nature of assumption by third parties and

(iv) the property has some degree of permanence and stability.

The Court of Appeal found that BTC satisfied all 4 characteristics of the Ainsworth test, being definable (the 'thing' recorded at an address), identifiable by third parties (via the public ledger), capable of being assumed by third parties through transfer and possessing permanence and stability in its transaction history.

Question 3: Is Bitcoin a ‘chose in action’?

The Court noted the flexibility of the common law and that theft offences under the Crimes Act do not require the shoehorning of BTC into a 'chose in action' category; the Court found that it was sufficient that BTC is intangible property.

Question 4: Is Bitcoin money?

Without definitively stating that BTC was money, the Court accepted the trial judge’s finding that BTC was analogous to a form of money. This supported the Court's conclusion that BTC was readily distinguishable from mere information.

Question 5: For public policy purposes, should cryptocurrencies be treated in law as property?

The Court found that BTC and other digital assets have assumed importance in the modern world. Denying their existence as property will likely lead to the employment of scams and illegitimate uses against vulnerable investors and customers.

On public policy, the Court also emphasised the need for authoritative clarification so that theft and other related property offences properly capture the misappropriation of cryptocurrency, and so that the criminal law can provide meaningful redress and deterrence.

Why a 'not property' categorisation is unlikely

Although there are various complex arguments that can be made regarding the proprietary (or rather, non-proprietary) nature of BTC, a categorisation as such would undermine theft enforcement by inviting technical arguments that misappropriation of coins is merely the manipulation of information rather than the appropriation of property.

It would also frustrate the criminal law’s protective function by narrowing available offences and remedies for victims of crypto‑related wrongdoing (at [18]–[20]).

From a broader policy perspective, denying proprietary status would also (i) jeopardise tax administration by re-characterising high-value transfers and gains in an established asset class as non-disposals of property; (ii) disrupt existing financial infrastructure that already treats BTC as an asset (exchanges, custody, wallets, crypto-asset ETFs) and thereby impede consumer protection; and (iii) impair law-enforcement tools that depend on property constructions (freezing, seizure and so on).

Conclusion

The Court of Appeal’s judgment adds to a long line of common law authority finding that BTC is property and which reasoning is arguably readily applied to other cryptocurrencies. The judgment again demonstrates the Court’s pragmatic approach in considering the legal treatment of novel assets, underlining the flexibility of the common law to adapt to new circumstances

Written by Steven Pettigrove, Luke Higgins and Sophie Nguyen