NSW police might be investigating allegations of credit card misuse by Craig Thomson as a result of a letter from the Shadow Attorney General Senator Brandis, but certainly not as a result of what the letter thinks is the law. If Senator Brandis was a law student his letter would be a clear fail. This is deeply worrying given his hope to be the nation's top law officer.
On Wed the ABC reported that Brandis's letter stated:
"I submit there is a strong prima facie case that he has committed one or more offences against the Crimes Act… I draw your attention, in particular, to the offence of larceny; fraudulent appropriation; larceny by a clerk or servant; and fraud.Senator Brandis said he considered the clearest offence to be fraud, "where a person who by any deception dishonestly obtains property belonging to another or obtains any financial advantage".
He said the maximum penalty for fraud was 10 years imprisonment.
Well, no. As any good law student can tell you in NSW stealing (larceny s117) only applies to the taking of physical property from the victim. It doesn't apply to electronic transfers of money or the creating of credit card debts. Neither to the acquisition of services, such as by prostitutes.
Fraudulent appropriation (s124) requires an indictment for larceny and only applies if a person has obtained physical property in a way that was not criminal but later dishonestly decides to keep it or ask for a reward. A good example is a person who finds lost property and decides later to keep it. Again, not applicable to credit card debts for services.
Larceny by clerk or servant (s156) is an aggravated from of larceny where the accused is an employee. No larceny, no fraudulent appropriation offence. It doesn't apply to credit card debts or services. So far no possible basis for a charge.
Brandis is on firmer ground when he alleges fraud may have occurred. But the offence he refers to is s192E, an offence that only came into force in 2010 - after the date of the alleged fraud. The correct offence - which had a maximum penalty of five years jail, not 10 - was s178BA which prohibited a person "by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage".
Sure it's pedantic to point this out. And there wouldn't be a problem if a member of the public made these mistakes. But for the Shadow Attorney-General to make a formal written allegation of crime to the Commissioner of Police and to allege a range of offences that could not possibly be the basis for a criminal charge is beyond sloppy.
It suggests that the Senator's staffers wrote this for him in a hurry in order to score a political point. They appear to not know the criminal law in NSW. It looks as though they looked at a copy of the Crimes Act circa 2011 and just jotted down the section titles that seemed to fit.
While none of this detracts from the gravity of the alleged misbehaviour by Craig Thomson, the Shadow Attorney General's reputation as a lawyer is diminished by this sloppy over-egging of the political attack.
Alex Steel is an Associate Professor in the Faculty of Law at the University of NSW.