Dixon v R

Supreme Court of New Zealand, Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ

[2015] NZSC 147

Criminal justice – offences – computers – accessing for dishonest purpose – whether digital files are “property” – ss 2, 249(1)(a) Crimes Act 1961

Facts:  

The appellant, Mr Dixon, had obtained a compilation of CCTV footage (showing a sporting celebrity in a bar) from a reception computer by transferring them to a personal USB stick.  He had then deleted the files from the desktop.  He tried unsuccessfully to sell the footage to international media organisations.  He then posted it to YouTube.  The bar complained to the police.  Mr Dixon was convicted after a jury trial. 

He appealed to the Court of Appeal, which determined that digital videos were not “property” for the purposes of s 249(1)(a) of the Crimes Act 1961 as they were simply “pure information”.  The Court of Appeal had used s 286(2) Crimes Act to substitute a conviction for accessing a computer system and thereby dishonestly and without claim of right obtaining a benefit. 

Mr Dixon appealed to the Supreme Court on the issues of whether the digital files were “property” for the purposes of s 249(1)(a), and whether the Court of Appeal had been right to substitute the conviction.  Prior to the appeal being heard, Mr Dixon dismissed his counsel.  The appeal proceeded with Mr Dixon being self-represented. 

This note only addresses the issue of whether digital files can be “property”.    

Held, dismissing the appeal:

(1)   In the context of dishonest acquisition of property from a computer system under s 249(1)(a), and in light of the definition of property in s 2,[1] the digital files at issue were property, whether classified as tangible or intangible [25].  The US cases were divided on whether software was tangible or intangible, but were in general agreement that it was “property”.  There was no reason to treat data files differently from software in this respect [50].

South Central Bell Telephone Co v Barthelemy 643 So 2d 1240 (Lou 1994); Erris Promotions Ltd v Commissioner of Inland Revenue [2004] 1 NZLR 811 (HC) discussed; Thyroff v Nationwide Mutual Insurance Co 8 NY 3d 283 (NY 2007); Your Response Ltd v Datateam Business Media Ltd [2015] QB 41 contrasted; Wal-Mart Stores Inc v City of Mobile 696 So 2d 290 (Ala 1996); Andrew Jergens Co v Wilkins 109 Ohio St 3d 396 (Ohio 2006); American Business Information Inc v Egr 264 Neb 574 (Neb 2002) referred to.

(2)   The word “property” was included in s 249(1)(a) for a broader purpose than simply covering the type of situation of a defendant accessing a computer and using credit card details to unlawfully obtain goods [34].  Referring to ss 248 (definition of computer system) and 250 (damaging or interfering with computer system) showed that Parliament had stored data in mind when drafting those provisions.  The Court also considered that there was no doubt that Parliament had in mind situations where stored data was copied [35].  Given this, it was necessary to consider which offence might apply where a person copied stored data from a computer without authority.  The Court doubted that s 250 could apply.  Section 252, which created an offence of intentionally accessing a computer system without authority, could apply, however it focused on unauthorised access simpliciter and did not address the issue of dishonest purpose.  Section 249 would apply where access was for a dishonest purpose, and carried with it significantly higher maximum penalties.  An obvious example of accessing a computer system for a dishonest purpose was the present case, and the capturing of such conduct was consistent with the features of the legislation.  The word “property” was most apt to capture what was obtained by Mr Dixon as a result of his unauthorised access [37].  His conduct was within the statutory purpose [51].

(3)   In this context, the fundamental characteristic of “property” was that it was something capable of being owned and transferred [38].  The compilation of CCTV footage had an economic value and was capable of being sold.  It had a material presence and altered the physical state of the medium it was stored on, illustrated by the fact that electronic storage could become fully utilised [39]. 

New Era Printers and Publishers Ltd v Commissioner of Stamp Duties [1927] NZLR 438 (SC) approved. 

(4)   The fact that Mr Dixon had deleted the compilation from the computer after he copied it was not critical to the conclusion that he had obtained property.  He would still have obtained property if he had simply downloaded a copy of the compilation [fn 70].

 

 

 

 

[1]               “property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest”

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