The essence of our legal system was highlighted in two recent criminal matters.
In NSW, a man who withdrew $2.1 million from a bank account in which he had only ever deposited
$441 from Centrelink had his conviction quashed on appeal. In Victoria, a 20 year old was fined more than $1,000 and had his driver licence cancelled for 3 months for riding his motorised Esky under the influence of alcohol.
Both cases illustrate that criminal law is not just about the act complained of – it is also very much about the way the law is written.
The New South Wales matter was most unusual. The Court found that the behaviour of the person concerned was clearly dishonest. However, the
offence for which he had been charged was to “dishonestly obtain financial advantage by deception”. Although the man had continued to borrow and consume funds knowing that he had no realistic prospect of repaying them, the
bank was at fault in continuing to lend him large amounts of money on an account which lacked an overdraft facility. There was no deception nor was there anything covert about the individual’s conduct. At all times, he was required to repay the debt to the bank. The fact that he had no capability to repay such a large amount of money did not amount to “deception”.
The Victorian case would have had a similar outcome in New South Wales. The offender returned a blood alcohol reading of 0.041 which was over
the legal limit because he was on P plates and therefore his legal limit was zero. In order to be established, the offence requires there to be present in the driver’s breath or blood more than the prescribed concentration of alcohol while they drive a motor vehicle. In NSW,“drive” is defined to include to “ride a vehicle” and “vehicle” is defined to include any description of a vehicle on wheels – the Esky had 4 of them!
So the law can appear to work in strange ways unless we take a closer look at what the applicable law actually is.
John Clarke is the Solicitor Director of Clarke Law with a local network of offices in Narooma, Bermagui.