Its great to read the decision in R v Dixon a case I have followed closely and continuously since it first happened in Queenstown. I have a particular interest in the Supreme Court decision as the enactment of the computer crime sections in the Crimes Act was closely connected with the decision of R v Wilkinson which I took to the Court of Appeal in 1998 and which exposed "a yawning hole in the Crimes Act."
So it was with a great sense of expectation that I took to reading the decision. I can only say I was immediately disappointed with the decision supposedly emanating from the best legal minds in the Country.
To put it politely it was very much a once over with a view to convicting Mr Dixon as the Court of Appeal had already wrongly convicted him of a subsitituted offence which they had no jurisdiction to do. See my case in the Supreme Court R v Thompson.
I felt immediately uncomfortable with the reliance on the definition of access under Section 248 of the Crimes Act and in particular the part of that definition that includes receiving data as accessing. I spent an afternoon thinking about that, actually most of the day. Something didnt feel right. Being an infp personality I rely a lot on intutition and feeling. It was the data received on the t-stick that the Supreme Court looked to as the property obtained. That again just didnt sit right with me.
So I focussed more on the definition of access under section 248. The classic example under Section 249 is a person who accesses someones bank account without authority online and transfers funds from the persons account to their own account. Once I had that in my mind I looked to consider the two limbs of S249 one of which is to obtain property and one of which is to cause loss.Clearly the receiving data under the definition of access related to a person receiving data i.e information from a computer which caused loss to the victim.It was information only i.e.data not property.The loss caused is the loss of confidentiality in the information not a loss of property. Confidentiality is not property.This is where the Supreme Court has gone wrong.
I think that I should have had you representing Jeremy, as honestly over the last 4 years its been impossible to find someone of your caliber and an INFP doing battle alongside an ENTJ. I'm sure the outcome would have been a lot different.
ReplyDeleteKa Kite.
The Tindall Bouncer.
HUGE implications if this court does not reverse course or at least reconsider. Copies of "intellectual property" do not constitute theft. One has to consider the timing of this is not shortly before Judge Nevin Dawson is about to weigh in on a similar matter re Megaupload.
ReplyDeleteHope the affected parties lodge long lengthy and arduous appeals by the parties affected.
This whole information is property debate is a huge wake-up call.
The only road is to apply for a recall of the judgment on the basis that our highest court made this decision without any submissions on the issue from the appellant or seek a referral back through the GG
ReplyDeleteThe only road is to apply for a recall of the judgment on the basis that our highest court made this decision without any submissions on the issue from the appellant or seek a referral back through the GG
ReplyDelete