Dixon v R

• Jurisdiction: New Zealand
• Judge: French J
• Judgment Date: 17 July 2014
• Neutral Citation: [2014] NZCA 329
• Docket Number: CA518/2013
• Court: Court of Appeal
• Date: 17 July 2014

Between

Jonathan Dixon

Appellant

and

The Queen

Respondent

[2014] NZCA 329

Court:

Harrison, Wild and French JJ

CA518/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction for accessing a computer system for a dishonest purpose contrary to s249(1)(a) Crimes Act 1961 (CrA) and sentence of four months' community detention and 300 hours' community work — appellant had obtained footage of male patron of bar with another female patron — male patron was married to Queen's granddaughter — appellant had attempted to sell footage and following that had placed footage on internet — indictment alleged that appellant had “accessed a computer system and thereby dishonestly and without claim of right obtained property” — whether digital footage fell within the definition of “property” contained in s2 CrA (interpretation) — if not, whether the Court should use its powers under s386(2) CrA (Powers of appellate courts in special cases — substitute a verdict of guilty of … other offence, and pass such sentence in substitution) and convict D of accessing a computer system to obtain a benefit — whether the Judge overstated the seriousness of the offending.

Counsel:

D J More and A J More for Appellant

S B Edwards for Respondent

A The conviction is quashed and replaced with a conviction under s 249(1)(a) of the Crimes Act 1961 on the following terms:

That Jonathan Dixon on the 13th day of September 2011 at Queenstown accessed a computer system and thereby dishonestly and without claim of right obtained a benefit.

B The appeal against sentence is dismissed. Mr Dixon must report to the Community Probation Service by 10.00 am on 21 July 2014 to resume his community work sentence. The sentence of community detention will also resume on 21 July 2014.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by French J)

Introduction

1 Following trial, a District Court jury found Mr Dixon guilty of accessing a computer system for a dishonest purpose contrary to s 249(1)(a) of the Crimes Act 1961. He was convicted and sentenced by Judge Phillips to four months' community detention and 300 hours' community work. 1

2 Mr Dixon now appeals both his conviction and his sentence.

3 The key issues raised by the appeal are:

• (a) Does digital footage fall within the statutory definition of “property” contained in s 2 of the Crimes Act?

• (b) If digital footage does not fall within the statutory definition of “property”, should Mr Dixon's conviction for obtaining property under s 249(1)(a) be quashed and replaced with a conviction for obtaining a benefit?

• (c) Did the Judge overstate the seriousness of the offending and as a result impose a sentence that was manifestly excessive?

Factual background

4 Mr Dixon was employed by a Queenstown security firm as a bouncer. One of the firm's clients was Base Ltd, which operates Altitude Bar in Queenstown. Base had installed a closed circuit television (CCTV) in the bar.

5 In September 2011, the English rugby team was touring New Zealand as part of the Rugby World Cup. The captain of the team was Mr Tindall. Mr Tindall had recently married the Queen's granddaughter. On 11 September, Mr Tindall and several other team members visited Altitude Bar. During the evening there was an incident involving Mr Tindall and a female patron, which was recorded on Base's CCTV.

6 Mr Dixon found out about the existence of the footage of Mr Tindall and asked one of Base's receptionists to download it onto the computer she used at work. She agreed, being under the impression that Mr Dixon required it for legitimate work purposes. The receptionist located the footage and saved it onto her desktop computer in the reception area. Mr Dixon subsequently accessed that computer, located the relevant file and transferred it onto a USB stick belonging to him.

7 Mr Dixon attempted to sell the footage but when that proved unsuccessful he posted it on a video-sharing site, resulting in a storm of publicity both in New Zealand and in the United Kingdom. Judge Phillips found that Mr Dixon had done this out of spite and to ensure that no one else would have the opportunity to make any money from the footage. 2

8 Base complained to the police about Mr Dixon's actions and Mr Dixon was charged under s 249(1)(a) of the Crimes Act.

Is digital footage stored on a computer “property” as defined in the Crimes Act?

9 Section 249(1)(a) states:

249 Accessing computer system for dishonest purpose

• (1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

  • (a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

  • …

10 The indictment against Mr Dixon alleged that he had “accessed a computer system and thereby dishonestly and without claim of right obtained property”.

11 At the conclusion of the Crown case at trial, Mr Dixon's counsel applied for a discharge under s 347 of the Crimes Act. Counsel argued that the prosecution could

not prove Mr Dixon had obtained property because the footage he had copied and transferred was not property as defined under the Crimes Act

12 Judge Phillips rejected that submission. 3 He held that the footage was property and directed the jury accordingly.

13 On appeal, Mr More submitted that this ruling and the consequent jury direction were wrong in law and that the conviction should be set aside. This was the sole ground of the appeal against conviction raised by Mr More.

Statutory definition

14 The offence created by s 249(1)(a) was inserted into the Crimes Act by the Crimes Amendment Act 2003. It was one of a number of provisions designed to modernise the Crimes Act by taking account of computer-related crime and by updating traditional property offences in light of technological advances and developments in case law. 4 In addition to creating new computer-related offences, the Amendment Act also modified the key terms underlying property offences, including the words “property” and “document”. 5

15 The term “property” is now defined in s 2 of the Crimes Act as follows:

property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest

16 The words “money, electricity” were added by the Amendment Act. It is unclear whether they were included out of caution or whether they were considered to be outside the previous definition.

17 Originally, the Amendment Bill had included a separate definition of “property” specifically for the new computer-related crimes. The definition was in cl 19 of the original Bill, and was as follows:

Property includes real and personal property, and all things, animate or inanimate, in which any person has any interest or over which any person has any claim; and also includes money, things in action, and electricity.

That definition was discarded by the Select Committee, which rejected the notion of having different definitions of property for different offences.

18 This case appears to be the first time the courts have been asked to consider the definition of property under s 2 in the context of electronically-stored footage or images. There is a High Court decision holding that internet usage (the consumption of megabytes in the transmission of electronic data) is “property”. 6 However the Judge in that case expressly distinguished internet usage from the information contained in the data, and was not required to consider the status of the latter. 7

District Court decision

19 In holding that the footage fell within the definition of “property”, Judge Phillips had this to say: 8

[13] … the definition of property in the Crimes Act is wide; in my view clearly is sufficiently wide to cover here the situation. I have regard to the overall position relating to what we are talking about here. I see that what a computer does is receives, digests and analyses data. I consider that data can include anything that is capable of being stored on a computer system, being a word document or a programme file or script, that enables the operator to do something quickly for example and can clearly include picture files and the like.

[14] What the receptionist did, under the instructions of the accused on the evidence, was retrieve data from a CCTV camera and store it on the desktop. At that point in time, of course, nothing at all had happened other than there had been the creation of a separate file, being a picture file containing this video. At that point in time the property remained in the possession of Base. The accused arrives, then physically himself moves that picture file from the desktop onto his USB stick and then deletes the picture file. I refer back to the definition of property. In my view we have in fact clear property, being the picture file, which is data from a computer taken

into the possession of the accused on the Crown's case. Quite clearly the management/owners/directors or whatever of Base would be able to say that they had that document (the picture file) under the company's control and thus could make a claim to possession of it. It was taken from the desktop, onto the USB stick and the company's document was then deleted.

20 It seems the Judge was influenced by the breadth of the statutory definition, its inclusion of intangible things and the fact that the footage appeared to have all the normal attributes of personal property. It had a value and was capable of being sold. Although the Judge did not expressly address the issue, he must presumably have considered that it did not matter that at all times Base retained its footage. It never lost the images. What it lost was the right to exclusive possession and control of them.

21...