Police v L HC Wellington CRI-2006-485-58

[2006] NZHC 1215

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-58

IN THE MATTER OF     an appeal from a determination of the

District Court at Wellington

BETWEEN  NEW ZEALAND POLICE Appellant

ANDL

Respondent

Hearing:         3 October 2006

Appearances: D La Hood for Appellant

D A Ewen for Respondent

Judgment:      12 October 2006

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 10.30am on the 12th day of October 2006.

RESERVED JUDGMENT OF GENDALL J

[1]      This is an appeal by way of case stated pursuant to s107 of the Summary Proceedings Act 1957 arising out of the dismissal of an information against the respondent in the District Court at Wellington on 4 May 2006.

[2]      The information alleged that the respondent between 26 September 2004 and

26 August 2005 committed an offence against s249(1)(a) of the Crimes Act 1961 in that he:

“dishonestly, and without claim of right, accessed a computer system for the purpose  of  obtaining  a  benefit,  namely  access  to  the  electronic  mail messages  and  password  for  Sarah  Anderson’s  e-mail  account  stored  on Telstra Clear’s computer system.”

NEW ZEALAND POLICE V L HC WN CRI-2006-485-58  12 October 2006

[3]      Whilst the case stated refers to the Judge hearing “the evidence adduced” it is apparent that the hearing proceeded on the basis of an agreed summary of facts.  The case stated sets out facts as follows:

“IT was admitted upon the hearing by way of an agreed Summary of Facts as follows:

In 2004 the defendant LE ROY was employed by Telstra Clear and was currently holding the position of E Services Coordinator.  This position gave the defendant access to the company’s computer system enabling him to look and access client’s e-mail accounts.

Between the dates of 27.09.2004 and 26.08.2005 the defendant accessed the e-mail account of Sarah Anderson, the victim in this matter.

The name of the account is  [email protected]z.  He accessed the account 36 times when he was able to obtain her user password.

The defendant has opened up the e-mails in the victim’s e-mail address and has read them.  At the time the defendant had a Protection Order in place against him with the victim.  When spoken to by the Police the defendant stated the facts as outlined and said in explanation that he had no work purpose to access the victim’s account and that he should not have obtained the password or the account from the Telstra Clear computer system.”

[4]      The case stated by the District Court Judge then proceeds:

“I determined as recorded in a reserved decision dated 20 April 2006 that the issue in the case was what is meant by the word ‘benefit’ as used in section

249(1)(a) of the Crimes Act 1961 in the context of an allegation that the accused has accessed electronic mail and a password.   I referred to that

section which reads as follows:

‘(1)      Everyone is liable … … 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.’

I held that the word ‘benefit’ in the section means one that could result in advancement of a person’s material situation and was confined to a ‘benefit’ of a financial nature.  Accordingly it could not apply to the present case.  I did not dismiss the Information on 20 April 2006 but sought further submissions from the parties as to whether or not the charge as set out in paragraph  1  hereof  disclosed  an  offence  in  terms  of  s.249(1)(a)  of  the Crimes Act 1961 and whether or not the informant sought an amendment.”

[5]      It seems that on 4 May 2006 the Judge heard counsel when an application was made to amend the information to allege an offence under s249(2)(a).   The

Judge declined to do so but noted that a form of case stated on appeal had already been submitted on behalf of the Crown.  The information was dismissed, however, by the Judge “on the basis that it fails to disclose an offence in any event”.

[6]      The questions posed in the case stated for the opinion of this Court is whether the Judge’s decision was erroneous in point of law and in particular –

“(i)      whether the word “benefit” in section 249(1)(a) of the Crimes Act

1961 is confined to a benefit of a financial or pecuniary nature;  and

(ii)whether in all the circumstances of the case the Information as worded and set out above in paragraph 1 of this Case Stated discloses an offence pursuant to section 249(1)(a) of the Crimes Act 1961.”

Discussion

[7]      “Benefit”  is  used  as  a  noun  in  the  section.    Its  natural  meaning  is  “an advantage”.  That is to be contrasted, for example, with a “disadvantage”.  I do not see  how  it  should  be  limited  by  any  adjective  description  such  as  “pecuniary benefit”, “property benefit” or “material benefit” as Mr Ewen argues.  By using the word “material” he referred of course to something tangible in the sense of being “pecuniary” or “property” or some form of valuable consideration.  But if that were the case the words “pecuniary advantage” contained in s249(1) and (2) would have been unnecessary.  Or, alternatively, the word “benefit” would be unnecessary.

[8]      In the Commentary in Adams on Criminal Law it is said at para CA249.01:

“In the context of this offence ‘privilege’ or ‘benefit’ might also include such things as passwords or access codes which permit a person to access computer files or data or to effect operations on a computer which could not be done without those codes or passwords.”

[9]      Under s228 relating to dishonestly taking or using a document the required intent is:

“…to obtain any property, service, pecuniary advantage, or valuable consideration….”

and the use of the document for any other “benefit” does not apply.

[10]     In the context of that section, the term “advantage” is qualified by the word “pecuniary”  and  encompasses  such  cases  where  an  offender  receives  money  to which he/she is not legally entitled;  R v Firth [1998] 1 NZLR 513.

[11]     A non-monetary advantage may nevertheless comprise a benefit.   Such an advantage might, for example, be the acquiring of knowledge or information to which one was not otherwise entitled.   The advantage might be the invasion of another’s privacy.   It might be knowledge or information that could be used to exploit another person.    For example, wrongful accessing of the e-mail communications of another for the advantage of disclosure.   Or use for political purposes or purposes of embarrassment.   Information obtained might also be used for the benefit or advantage of the wrongdoer in acting in a way so as to harass another in breach of the Harassment Act 1997, or to be used to assist in the breach of a protection order under the Domestic Violence Act 1995.

[12]     The words used in s249(1)(a) in some respects parallel those used in s237, which relates to blackmail.  In s237 the intent of the person making or threatening the accusation is “to obtain any benefit or cause any loss to any other person” and s237(3) provides:

“’benefit’ means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.”

[13]     The words, apart from the order, are identical.  The Commentary contained in

Adams on Criminal Law para CA237.07 in my view is correct, namely:

“The word ‘benefit’ is defined in wide terms in the subsection.  Of the words in that extended definition, only ‘property’ is further defined in the Act….While ‘property’, ‘pecuniary advantage’ and ‘valuable consideration’ all have the connotation of things of financial value, the same is not necessarily  true  of  ‘benefit’  itself,  nor  of  ‘privilege’  or  ‘service’.    It  is unlikely  the  words  in  the  extended  definition  form  a  genus,  so  that  a privilege, service or benefit not defined in monetary terms may come within the definition, as with a reduction in sentence for an offence….or refugee status….or a work permit….”.

[14]     Whilst Mr Ewen endeavoured to persuade the Court that the Judge’s finding that what was required was a “material benefit” that is not correct.  The Judge found, as  the  case  states,  that  the  word  “benefit”  was  confined  to  an  advantage  of  a “financial nature”.

[15]     Whether something is a “benefit” or not will be a question of fact to be determined on all the evidence.  What might be a “benefit” to one person may be of no benefit and inconsequential to another and it is the context of the behaviour of a defendant viewed against the information or material obtained through the access to the computer system, or advantage derived from such accessing, that will determine whether objectively viewed what has resulted is the obtaining of an advantage sought by the offender.  It will be a matter of evidence as to whether the benefit comprises such an advantage as to come within the section and no doubt how a person might use information or material obtained through dishonestly accessing a computer system may itself provide ample illustration of the fact that it was a “benefit”, an “advantage”, and used or sought to be used as such.   In this case the facts, or evidence, were agreed.  The only issue was whether access in those circumstances obtained a benefit.

[16]     Although the Judge resorted to the use of the noscitur a sociis rule (that a particular word whose meaning is under consideration is read in the context of other words in the section in which it appears), and the rule requiring a penal statute to be strictly interpreted in favour of an accused, those rules are only guides to statutory interpretation.  If the purpose of the provision is clear the Court should interpret it in accordance with that purpose.

[17]     Support for my view can be found in the unreported decision of Bisson J in Dauncey v Police HC HAM M170/85 25 June 1985.  There, an accused was charged with using a document with intent to defraud, namely a trust account receipt, for the purpose of obtaining for himself a pecuniary advantage.  He had obtained the receipt fraudulently so as to tender it to a District Court Judge, so as to receive the benefit or advantage a lesser sentence upon later sentencing.  He was convicted and on appeal it was argued that the words in the then s229A(a):

“…to obtain any privilege, benefit, pecuniary advantage, or valuable consideration.”

were such that no pecuniary advantage or benefit had been obtained by the appellant. It was argued that the benefit of a sentence that was lighter than otherwise would have been the case did not qualify as a “benefit” under the section.   The Crown submitted that the tendering of the receipt to the Court was designed to obtain the benefit of a lighter sentence and that the High Court might amend the charge to intending to obtain a benefit, even if there had not been an intent to obtain the pecuniary advantage.  Bisson J said (at p6):

“[Counsel] contended that ‘benefit’ should be construed to mean a financial benefit but I am unable to accept that either of the words ‘privilege’ or

‘benefit’ are limited to a privilege or benefit of a pecuniary nature….The

words are specific whether it be privilege, benefit, pecuniary advantage or valuable consideration.  Each has a distinct meaning of its own and should be construed accordingly.

[18]     The Judge went on to say that whilst the person charged must use or attempt to use the document for his own ends there need not be any corresponding loss or injury to another:

“This is particularly so where the purpose is to gain a privilege or benefit of a non-pecuniary nature.”

[19]     The Judge then proceeded to amend the conviction by substituting the words “benefit” where the words “pecuniary advantage” appeared in the information and dismissed the appeal.

[20]     That case is an apt example of the situation where the advantage obtained is a

“benefit” of a non-pecuniary nature.

[21]     The  purpose  of  the  inclusion  of  the  crime  described  in  s249(1)(a)  is  to prohibit the dishonest access of any computer system where such access provides advantages to the person wrongly accessing the system which might benefit that person in a variety of ways, pecuniary and otherwise.  It may correspondingly cause disadvantage to some other person, although this is not a pre-requisite.   I do not consider there is any basis to read down the meaning of the word “benefit” in the section to restrict it to anything other than an “advantage”.   I do not accept the

argument that the word “benefit” in s249(1)(a) is to be limited to “financial”, “pecuniary” or “material benefit”.   As I have said, access to any computer system may be for an infinite variety of reasons or purposes not all of which are to obtain pecuniary advantages.  Access may afford the accessing party information to which the  wrongdoer  is  not  entitled.    Of  course,  there  must  be  a  dishonest  intent  in obtaining such access.  It follows that I answer the first question in the case stated as follows:

Question:       Whether the word “benefit” in s249(1)a) of the Crimes Act

1961  is  confined  to  a  benefit  of  a  financial  or  pecuniary nature?

Answer:         “No”.

[22]     Turning to the second question, I think the Judge got somewhat side-tracked when requesting the parties to make submissions as to whether the police wished to amend the charge.  He said in his original decision that if the police were to succeed then in a prosecution based upon the appellant’s admitted activity it had to be proved beyond reasonable doubt that he obtained a benefit that advanced his material situation and the Judge said he had not been charged with that.  Such had not been argued at the hearing before him as is apparent in his decision of 20 April 2006, where the Judge says:

“The facts are not in issue, and Mr Ewen has conceded that if accessing a computer in order to get another person’s password is getting a benefit then the charge is proved.”

[23]     The police prosecutor responded to the Judge’s memorandum by saying that “it appears that the more appropriate charge” for the facts is one under s249(2)(a). He invited the Court to amend the charge to one under that section.  Mr Ewen, on behalf of the respondent, argued that the Court could not interfere with the discretion of the District Court Judge not to amend as invited.  However, I do not think it was necessary for the prosecutor to even seek to amend to “another charge” as he did. The information could (if necessary) have been amended, but still allege the offence that it did under s249(1)(a).

[24]     The Judge therefore erred in saying that the information did not disclose an offence.  Of course, if it did not disclose an offence it was a nullity and there was nothing to amend.  But the position is that the information was not a nullity nor was it regarded as such by either the prosecution or the defence.  The matter proceeded on the basis that if the respondent was found to have obtained a “benefit” an offence had been established.

[25]     Of course, s249(1)(a) does not use the words “for the purpose of obtaining a benefit” which appear in the information.  It simply prohibits the dishonest accessing of a computer system by a person who thereby obtains any benefit.  The section is clearly aimed at those whose purpose is to achieve such aim and obtain such benefit.

[26]     But s17 of the Summary Proceedings Act 1957 provides that:

“Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.”

The degree of particularity will vary according to the nature of the offence.  But its essence must be revealed by the particulars, the obligation being to fairly inform a defendant of the offence with which he is charged.  It is the essence or pith of the charge which must be revealed by the particulars, not the details relied upon to establish it.

[27]     The position was canvassed by the Court of Appeal in Police v Wyatt [1966] NZLR 1118 (CA) where McCarthy J said at 1133:

“There is nothing very unusual about s. 17, especially when it is read along with s. 204.  Similar combinations are often found when criminal jurisdiction is conferred….Nor is it to be thought that such sections add greatly to the earlier common law practice:  Smith v Moody [1903] 1 K.B. 56, 60. What s. 17 sets out to do, I believe, is to make two things clear: 1. That it is not obligatory to state an offence in the ipsissima verba [the identical words] of the section creating the offence; and 2. That sufficient particulars must be given reasonably to inform the person charged of the act or omission alleged and to identify the transaction. A requirement stated in the general terms of s. 17 cannot be reduced to a mere list of particulars which is to be common in all charges. Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. It will, I think, be readily apparent that in some cases only a few particulars will be necessary to convey the substance.”

[28]     It  is  generally preferable to  include  reference  to  the  statutory provisions creating the alleged offence and this was done in the present case.  As Cooke J (as he then was) noted in R v Cahill [1956] NZLR 383, the Court may have regard to any reference in the information to the section or subsection of any enactment creating the offence in considering whether the substance of the offence has been adequately stated. That was done in the present case.

[29]     In this case the substance of the charge was conveyed to the respondent, the section being referred to as well as his alleged actions and the purpose for which it was stated that he acted.   It would have been more precise if the word “and” had been included in the information after the words “purpose of” and before “obtaining a benefit”.  But the respondent was not prejudiced by this, and nor was his counsel, given that the matter proceeded by consent on the basis of agreed facts with counsel accepting that the charge would be proven if the interpretation of “benefit” relied upon by the prosecution was correct.

[30]     As was said by the Court of Appeal in R v Terry CA460/03 6 April 2004 at

[15]:

“Unfortunately, mistakes of no real consequence are sometimes made in informations.   In the event that some irregularity or mistake does go unobserved in the course of the trial process, and is later seized upon by a defendant, s204 of the Summary Proceedings Act 1957 provides that

no information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any [District Court] or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

Of course, in the present case, it is not the defendant who seized upon the defect but the Judge.  Yet as was said in Hall v Ministry of Transport [1991] 2 NZLR 53, 58 (CA) per Cooke P, the correct approach to s204 is to give “full effect to the ordinary and natural meaning of the language of the section”.

[31]     The mischief that s249(1)(a) is aimed at is directed at those whose purpose is to access computer systems with the aim of obtaining a benefit.  Whilst the section does not refer to “purpose” it is implicit that that is the mischief to which it is aimed.

It is the purpose for which a person wrongfully and dishonestly accesses a computer system to which the legislation is directed, and the offence arises where a person accesses a computer system with that purpose and obtains the sought after benefit. Where a case proceeds on the basis of agreed facts, in this case that information had been obtained, and the only issue is whether such was a “benefit”, there can be no possible disadvantage or prejudice arising to the respondent through omission of the word “and”.   The information sufficiently described an offence and the Judge fell into error in determining that it was a nullity.   That had not been argued by the defence and there was sufficient material particulars contained in the information so as to require that it not be dismissed as a nullity.  If necessary any amendment could properly have been made by simply inserting the word “and” in the position in the particulars to which I have referred.   It was not necessary to substitute any other offence, as the offence alleged in the information was described with sufficient particularity to meet the requirements of s17.

[32]     It follows that the answer to the second question posed in the case stated is:

Question:       Whether in all the circumstances of the case the information as worded and set out above in paragraph 1 of this Case Stated discloses an offence pursuant to section 249(1)(a) of the Crimes Act 1961?

Answer:          “Yes”.

Outcome:

[33]     The information is remitted pursuant to s112(b) of the Summary Proceedings Act 1957 to the District Court with this Court’s opinion on the two questions answered in the case stated.  The matter should be reheard on the basis conducted at the original hearing on 3 April 2006.

[34]     If any questions of costs arises counsel are invited to submit memoranda.

………………………………….

J W Gendall J

Solicitors:
Crown Solicitor, Wellington for Appellant