McLean v The King - [2024] NZHC 964

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-671

[2024] NZHC 964

BETWEEN
GRANT MCLEAN

Appellant

AND

THE KING

Respondent

Hearing: 23 April 2024

Appearances:

B A Mugisho and O Harold for Appellant L Radich for Respondent

Judgment:

30 April 2024

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by Justice Lang On 30 April 2024 at 10.00 am
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
P Hamlin, Auckland
Kayes Fletcher Walker, Crown Solicitor at Manukau

MCLEAN v R [2024] NZHC 964 [30 April 2024]

[1] On 4 October 2022 Mr McLean entered guilty pleas in the District Court to eight charges of dishonestly using a document with intent to obtain property.1 He has not yet been sentenced on those charges. Instead, he has appealed against conviction on the basis that he could not be guilty at law of the offences with which he is charged. He entered guilty pleas because his arguments on this issue have been rejected in the District Court. The only means by which he can challenge the approach taken in the District Court is to appeal against conviction.

Background

[2] The charges were laid after Mr McLean made eight separate requests during 2018 and 2019 seeking copies of birth records held by the Department of Internal Affairs (DIA). His requests to the DIA sought birth records for three District Court Judges, two police officers, the then Minister of Police, an employee of New Zealand Post and a deceased person. In each case he made the request in the name of another person and he supplied an email address that did not contain his name. One of the birth records was sent to him in hard copy whilst the remainder were sent to him in digital form.2

[3] After carrying out an investigation into Mr McLean’s activities, the police executed a search warrant at his home address on 11 March 2020. There they located one of the birth records Mr McLean had obtained from the DIA.

[4] The police laid the charges in January 2021. The prosecution then followed a tortuous procedural route as Mr McLean sought to establish the argument he now advances on appeal. He initially entered pleas of not guilty and applied unsuccessfully on two occasions for dismissal of the charge under s 147 of the Criminal Procedure Act 2011 (CPA).3 He failed to obtain leave to the Court of Appeal against the first of these,4 and then applied unsuccessfully for judicial review of that decision.5

1      Crimes Act 1961, s 228(1)(b).
2      The DIA did not forward him the request for the birth details of one of the District Court Judges.
3      R v McLean [2021] NZDC 12611; R v McLean [2022] NZDC 24648.
4      McLean v R [2021] NZCA 516.
5      McLean v Manukau District Court [2022] NZHC 2370.

[5] On the day Mr McLean was scheduled to stand trial he entered guilty pleas to the charges. He…

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 McLean v The King

Details

AGLC: McLean v The King [2024] NZHC 964
Case: [2024] NZHC 964
Decision Date: 30 April 2024

CaseChat Overview and Summary

The appeal in McLean v The King was brought before the High Court of New Zealand, Auckland Registry, by Grant McLean, who appealed against his conviction on eight counts of dishonestly using a document with intent to obtain property. McLean argued that the material he obtained from the Department of Internal Affairs did not constitute "property" as defined in the Crimes Act 1961, and thus he could not be guilty of the offences charged. The legal issues before the court involved the interpretation of the term "property" under the Crimes Act and whether the material obtained by McLean qualified as such, considering it lacked economic value.

The court rejected McLean's arguments, holding that once the Department of Internal Affairs provided the information to McLean in hard copy and digital form, it assumed its own identity and ceased to be pure information. The court referenced the Supreme Court's decision in Dixon v R, which held that digital files are property for the purposes of the Act if they are capable of being owned and transferred. The court further concluded that the term "property" in the Crimes Act does not necessarily require the item to have economic value, as the fundamental characteristic of "property" is its capability of being owned and transferred. The court dismissed McLean's appeal against conviction, finding that he could be liable under the Crimes Act for dishonestly using a document to acquire property regardless of whether the property has economic value.

The final orders of the court dismissed McLean's appeal against his conviction, upholding the District Court's decision.

Orders