Jonathan Dixon v R

• Jurisdiction: New Zealand
• Judge: Arnold J
• Judgment Date: 20 October 2015
• Neutral Citation: [2015] NZSC 147
• Docket Number: SC 82/2014
• Court: Supreme Court
• Date: 20 October 2015

Between

Jonathan Dixon

Appellant

and

The Queen

Respondent

[2015] NZSC 147

Court:

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

SC 82/2014

IN THE SUPREME COURT OF NEW ZEALAND

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.

Counsel:

Appellant in person

D J Boldt and F G Biggs for Respondent

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 hearing, however, Mr Dixon filed an application seeking leave to file written submissions and to make oral submissions himself, in addition to those made by his counsel. The Court declined that application. Mr Dixon then dismissed his counsel and appeared for himself at the hearing. We have, nevertheless, considered the written submissions of counsel, in addition to those made by Mr Dixon.

The legislation

8 We begin with the legislation. As we have said, s 249(1) of the Crimes Act provides:

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

• (b) causes loss to any other person.

9 Section 248 contains two relevant definitions:

access, in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system

…

computer system—

• (a) means—

  • (i) a computer; or

  • (ii) 2 or more interconnected computers; or

  • (iii) any communication links between computers or to remote terminals or another device; or

  • (iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and

• (b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

10 The relevant feature of these definitions is that the term “computer system” includes stored data and “access” includes receiving data from a computer system. There is, accordingly, no doubt that Mr Dixon accessed a computer system within the meaning of s 249(1)(a).

11 Finally in relation to the Crimes Act, “property” is defined in s 2 as including:

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

As can be seen, the definition is:

We should also mention one aspect of the broader statutory context. The term “goods” in the Commerce Act 1986, the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and the Sale of Goods Act 1908 is defined, “to avoid doubt”, to include “computer software”. 9 The principal Acts were amended in 2003 10 following the High Court's decision in Electricity Supply Association of New Zealand Inc v Commerce Commission, in which it was held that electricity and associated line function services were neither goods nor services for the purposes of the Consumer Guarantees Act. 11 In its report back on the amending legislation, the Commerce Committee said: 12

Some submitters proposed that computer software should be removed from the definition of goods because the consumer receives only a licence to use the software. These submitters believe that it is more appropriate, and more technically correct, for computer software to be considered to be a service for the purposes of the principal Act, the Commerce Act 1986 and the Fair Trading Act 1986.

We do not accept this proposal. The interest in the software the consumer receives does not differ significantly from other goods involving the transfer of...