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Dixon v R

Dixon v R

Case [2015] NZSC 147 20 October 2015

Criminal Liability

Access to Computer System

Obtaining Property

Criminal Law

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IN THE SUPREME COURT OF NEW ZEALAND

SC 82/2014
[2015] NZSC 147

BETWEEN	JONATHAN DIXON Appellant
AND	THE QUEEN Respondent

Hearing:	24 March 2015
Court:	Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ
Counsel:	Appellant in person D J Boldt and F G Biggs for Respondent
Judgment:	20 October 2015

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe 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.
CThe 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

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.
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.
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]
[1]R v Dixon DC Invercargill CRI-2011-059-1122, 18 April 2013 [Dixon (Summing up)] at [29].
[2]R v Dixon DC Invercargill CRI-2011-059-1122, 2 August 2013 [Dixon (Sentencing)].
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dixon v R

Details

AGLC: Dixon v R [2015] NZSC 147
Case: [2015] NZSC 147
Decision Date: 20 October 2015

CaseChat Overview and Summary

Jonathan Dixon appealed against his conviction and sentence for obtaining property by accessing a computer system for a dishonest purpose contrary to s 249(1)(a) of the Crimes Act 1961. The Court of Appeal quashed his conviction but substituted a conviction for obtaining a benefit contrary to s 249(1)(a) and dismissed his appeal against his sentence. The Court granted leave to appeal on the question whether the Court of Appeal erred in dismissing his appeal. Dixon appeared in person and was represented by counsel. The Court of Appeal had held that the digital footage obtained by Dixon was not property for the purposes of s 249(1)(a). The Court rejected that conclusion and held that the digital footage was property. It follows that the Court of Appeal was wrong to quash Dixon's conviction for obtaining property and substitute a conviction on the basis that he obtained a benefit. The Court also rejected Dixon's argument that there was a miscarriage of justice as a result of errors made by the Judge when summing up to the jury. The appeal is dismissed. The decision of the Court of Appeal is quashed and Dixon's original conviction is reinstated. Dixon 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.

Orders