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Dixon v R

Dixon v R

Case [2014] NZCA 329 17 July 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA518/2013
[2014] NZCA 329

BETWEEN	JONATHAN DIXON Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2014 (further submissions received 13 March 2014)
Court:	Harrison, Wild and French JJ
Counsel:	D J More and A J More for Appellant S B Edwards for Respondent
Judgment:	17 July 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe 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.
BThe 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.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

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]
[1]R v Dixon DC Invercargill CRI-2011-059-1122, 2 August 2013.
Mr Dixon now appeals both his conviction and his sentence.
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

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.
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.
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…

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 [2014] NZCA 329
Case: [2014] NZCA 329
Decision Date: 17 July 2014 at 10.00 am

CaseChat Overview and Summary

In Dixon v R, the Court of Appeal of New Zealand considered whether digital footage stored on a computer constitutes "property" under the Crimes Act 1961. Jonathan Dixon, a former bouncer, had accessed a computer system at a Queenstown bar and transferred footage of an incident involving the English rugby team captain, Mr Tindall, onto a USB stick. Dixon attempted to sell the footage but ultimately posted it online, leading to significant publicity. Dixon was convicted of accessing a computer system for a dishonest purpose under s 249(1)(a) of the Crimes Act, specifically for obtaining property. The Court of Appeal considered whether digital footage could be considered property within the meaning of s 2 of the Crimes Act.

The Court of Appeal concluded that digital footage does not constitute property under the Crimes Act. The Court noted that the statutory definition of "property" in s 2 includes real and personal property, money, electricity, and any other right or interest, but does not specifically mention digital data or information. The Court found that the orthodox position in law is that information, including digital data, is not property. The Court reasoned that while digital footage may have value and be capable of being sold, it is essentially a stored sequence of bytes and therefore indistinguishable from pure information. The Court rejected the argument that Parliament intended to include digital data within the definition of property when it amended the Crimes Act, noting the absence of any specific reference to digital files in the statutory definition.

Given that digital footage is not property, the Court considered whether Dixon's conviction should be quashed and replaced with a conviction for obtaining a benefit. The Court held that this was an appropriate case for the Court to exercise its powers under s 386(2) of the Crimes Act to substitute the conviction. The Court concluded that Dixon had obtained a benefit by having the opportunity to sell the footage, and therefore replaced the conviction under s 249(1)(a) with a conviction for obtaining a benefit. The Court also dismissed Dixon's appeal against sentence, finding that the sentence imposed was within range and appropriate given the breach of trust and the impact of Dixon's actions on his employer and the bar.

Orders