Jonathan Dixon v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeArnold J
Judgment Date20 October 2015
Neutral Citation[2015] NZSC 147
Date20 October 2015
Docket NumberSC 82/2014

[2015] NZSC 147

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 82/2014

Between
Jonathan Dixon
Appellant
and
The Queen
Respondent
Counsel:

Appellant in person

D J Boldt and F G Biggs for Respondent

Appeal against a Court of Appeal decision which quashed the appellant's conviction for obtaining property contrary to s249(1)(a) Crimes Act 1961 (CA) (accessing computer system for dishonest purpose — obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration) and substituting a conviction for obtaining a benefit contrary to s249(1)(a) CA — the appellant had worked for a company which provided security services to a bar in Queenstown that members of the English rugby squad had visited during a break between matches during the 2011 Rugby World Cup — the appellant obtained CCTV footage of English vice-captain Mike Tindall (married to a member of British royal family) and attempted unsuccessfully to sell the footage before posting it on a video-sharing site — whether digital files were property under s249(1)(a) CA.

Held: The word “property” was included in s249(1)(a) to cover a broader situation than merely those where a defendant accessed a computer and used, for example, credit card details to unlawfully obtain goods. The definition of a “computer system” under s249 CA was wide, and included stored data and “access” included receiving data from a computer system. There was no doubt that Parliament had stored data in mind when this provision was drafted.

An obvious example of accessing a computer system for a dishonest purpose was a case such as the present, where a person accessed a computer system without authority in order to locate, copy and then deal with valuable digital files contrary to the interests of the files’ owner. Of the various concepts identified in s 249(1)(a) – “property, privilege, service, pecuniary advantage, benefit or valuable consideration” – “property” seemed most apt to capture what was obtained by D as a result of the unauthorised access. The fundamental characteristic of “property” was that it was something capable of being owned and transferred. The digital files downloaded to the USB stick and then deleted from the reception's computer were a compilation of sequenced images from the bar's CCTV system. That compilation of digital files had an economic value and was capable of being sold.

Moreover the compilation had a physical presence and altered the physical state of whatever medium it was stored on (eg, computer, disc or USB stick), as is illustrated by the fact that electronic storage space could become fully utilised. albeit one that could not be detected by means of the unaided senses. Whether they were classified as tangible or intangible, the digital files were nevertheless property for the purposes of s249(1)(a) CA.

The Court of Appeal considered that it was problematic to treat computer data as being analogous to information recorded in physical form, on paper, computer disk or magnetic tape, for example and cited the example of A Microsoft Word document which it said was “simply a stored sequence of bytes used by the Microsoft Word software to present the image that appears on the monitor”. However the definition of a document for the purposes of Part 10 CA was sufficiently broad to include Microsoft Word documents in electronic form. Given that definition, it would be odd if a Microsoft Word document in electronic form was not “property” for the purposes of s 249(1)(a). The key question was whether the digital files were “property” for the purposes of s249(1)(a) rather than whether they were tangible or intangible property, given that the definition of “property” in s2 included both tangible and intangible property.

D's conduct was clearly within the statutory purpose of s249 CA. However, a more natural interpretation of s249(1)(a) CA was say that D took “property” when he downloaded the compilation of digital files to his USB stick and deleted them from the desktop computer, rather than to say that he had acquired a “benefit”. A benefit was an “advantage”, “good” or “profit” and it was not at all clear at the point he acquired them whether D had obtained any advantage or profit from having the files: at best he acquired something that was potentially of advantage or profit to him.

The Court of Appeal had been wrong to quash D's conviction for obtaining “property” and substitute a conviction on the basis that he obtained a “benefit”.

JUDGMENT OF THE COURT
  • A The appeal is dismissed.

  • B The decision of the Court of Appeal quashing the appellant's conviction for obtaining property contrary to s 249(1)(a) of the Crimes Act 1961 and substituting a conviction for obtaining a benefit contrary to s 249(1)(a) is quashed. The appellant's original conviction is reinstated.

  • C The appellant is to contact the Probation Service in South Dunedin by 10.30 am on Wednesday 28 October 2015 to make arrangements to complete his sentence.

REASONS

(Given by Arnold J)

Table of Contents

Para No

Introduction

[1]

The hearing

[7]

The legislation

[8]

Some more background

[12]

Were the digital files “property” for the purposes of s 249(1)(a)?

[16]

District Court decision

[17]

Court of Appeal decision

[18]

Discussion

[23]

Conclusion

[51]

Did the appellant's trial miscarry?

[57]

Decision

[72]

Introduction
1

During the 2011 Rugby World Cup, the English rugby squad visited Queenstown during a break between matches. One evening some members of the squad, including the vice-captain Mike Tindall, visited a local bar. During their time at the bar, Mr Tindall, who is married to a member of the Queen's family, was seen socialising, and then leaving, with a female patron. This was recorded on the bar's closed circuit television (CCTV) system.

2

The appellant, Jonathan Dixon, worked for a company which provided security services to the bar. He obtained a compilation of the relevant CCTV footage and attempted, unsuccessfully, to sell it to overseas media interests. He eventually posted it on a video-sharing site, which resulted in something of a media uproar.

3

Mr Dixon was charged with accessing a computer system for a dishonest purpose contrary to s 249(1)(a) of the Crimes Act 1961. Section 249(1)(a) provides that a person commits an offence if he or she “directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right … obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The Crown case was that Mr Dixon had obtained “property”, namely the digital footage. Judge Phillips ruled that the digital footage was property and directed the jury accordingly, 1 whereupon Mr Dixon was found guilty. Judge Phillips sentenced him to four months' community detention and 300 hours of community work. 2

4

Mr Dixon then appealed to the Court of Appeal against both conviction and sentence. 3 The sole ground of the conviction appeal was that the Judge had erred in finding that the digital footage was “property” for the purposes of s 249(1)(a). The Court of Appeal accepted that the footage was not property but considered that Mr Dixon was guilty of accessing a computer to obtain a benefit, also an offence under s 249(1)(a). Accordingly, exercising its powers to substitute a verdict under s 386(2) of the Crimes Act, the Court of Appeal quashed his conviction and substituted a conviction for obtaining a benefit. 4 The Court dismissed Mr Dixon's sentence appeal. 5

5

The judgment of the Court indicates that after the hearing, Mr Dixon's then counsel advised the Court that Mr Dixon wished to listen to the audio recording of the Judge's summing up to the jury as he (Mr Dixon) was concerned that something had been omitted from the written transcript. The Court directed that Mr Dixon be given seven days to listen to the audio recording; if he wished to advance further argument as a consequence, he could do so only through counsel. Counsel subsequently filed a memorandum, to which he attached “without comment” an outline of submissions prepared by Mr Dixon. The Court noted that the new submissions raised allegations against trial counsel and alleged the summing up was flawed although not identifying any discrepancy between the taped and transcribed versions of the summing up. The Court said that this was outside the scope of the leave granted but that, in any event, it was satisfied that none of the matters raised, whether viewed individually or collectively, would justify quashing the conviction. 6

6

This Court granted Mr Dixon leave to appeal on the question whether the Court of Appeal erred in dismissing his appeal. 7 The Court said: 8

[1] The approved question encompasses whether the Court of Appeal was correct to hold that the CCTV files are not property, as well as the question of whether the Court of Appeal should have used s 386(2) of the Crimes Act 1961 to substitute a conviction for accessing a computer system and thereby dishonestly and without claim of right obtaining a benefit.

[2] Mr Dixon also sought leave to appeal against the Court of Appeal's conclusion that the submissions filed by Mr Dixon after the Court of Appeal hearing were “outside the scope of the leave granted” and that they did not individually or collectively justify quashing the conviction.

[3] The question for the appeal also encompasses any specific matters raised in those submissions filed after the Court of Appeal hearing which Mr Dixon argues should have led to his appeal being allowed.

The hearing
7

Mr Dixon was to be represented by Marie Dyhrberg QC and Barbara Hunt on the appeal in this Court and they filed written submissions on his behalf. Shortly before the...

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