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McLean v R [2024] NZHC 964 (30 April 2024)

Last Updated: 30 October 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 then successfully sought a deferral of conviction on the understanding that he had a right to appeal to this Court against the refusal to dismiss the charge under s 147 of the CPA. However, the resulting appeal was unsuccessful because the Court held that in the absence of a conviction it did not have jurisdiction to hear the appeal.⁶ Mr McLean then attempted unsuccessfully to vacate his pleas.⁷ At that point he was convicted and filed the present appeal.

Appellate approach

• [6] Mr McLean advances his appeal under s 229(1) of the CPA. This requires the Court to allow the appeal if it is satisfied a miscarriage of justice has occurred that has created a real risk that the trial outcome was affected.⁸ A guilty plea is included within the meaning of “trial”.⁹

• [7] It is well established that the Court will only entertain an appeal against conviction where a guilty plea has been entered in exceptional circumstances.¹⁰ However, the Supreme Court has recently confirmed that the categories of cases in which a miscarriage of justice may occur following the entry of a guilty plea are not closed.¹¹ Although the categories identified in cases such as R v Le Page provide guidance, they are no more than illustrations of situations where this has been established.¹² The categories traditionally identified in those cases are:

(a) where the defendant did not appreciate the nature of the charge and did not intend to admit guilt;

(b) where, on the admitted facts, the defendant could not have been guilty of the offence charged;

⁶ McLean v R [2022] NZHC 330 at [10]- [11].

⁷ R v McLean [2023] NZDC 25614.

⁸ Criminal Procedure Act 2011, s 232.

⁹ Section 232(5).

¹⁰ R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [17]- [19].

¹¹ Re Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151, [2023] 1 NZLR 457 at [44].

¹² R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA).

(c) where the guilty plea is induced by a ruling which embodied a wrong decision on a question of law; and

(d) where the defendant pleaded guilty based on incorrect advice as to the availability of defences or outcomes.

• [8] Mr McLean contends the present case falls within the second and third categories set out above. He says he pleaded guilty to the charges on the understanding that he was entitled to appeal against conviction. He says a miscarriage of justice has occurred because, on the admitted facts, he could not have been guilty of the offences with which he was charged.

The issues

• [9] Section 228(1)(b) of the Crimes Act 1961 provides as follows:

Dishonestly taking or using document

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—

...

(b) dishonestly and without claim of right, uses or attempts to use any document.

(Emphasis added)

• [10] Section 2 of the Crimes Act defines “property” as follows:

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

• [11] Mr McLean’s submission on appeal, as it has been from the outset, is that the birth records he obtained from the DIA do not constitute “property” for the purposes of ss 2 and 228(1) of the Crimes Act. He advances two arguments in support of this submission. First, he says the material he received from the DIA constitutes pure information and this has never been regarded by the law as constituting property. In the alternative, he contends that the birth records do not constitute “property” in terms

of s 228(1) of the Crimes Act because that section only applies where a person intends to acquire property having an economic value. He says the records he obtained have no economic value.

Was the material that Mr McLean obtained from the DIA pure information?

• [12] The argument for Mr McLean on this issue is based on the fact that the information that he obtained came from the register kept by the DIA in accordance with the Births, Deaths, Marriages, and Relationships Registration Act 1995 (BDMRRA).¹³ He contends that, although copies of records of the type provided to him may be collated and provided to persons who request it, the information remains pure information. It does not assume a separate identifiable entity.

• [13] I consider the most helpful authority in this context to be the judgment of the Supreme Court in Dixon v R.¹⁴ The appellant in that case acquired and attempted to sell CCTV footage of patrons socialising in a bar. One of these was a well-known sportsperson with ties to the British Royal Family. The appellant arranged for CCTV footage to be downloaded from a camera in the bar. He then acquired the footage in a digital file. After unsuccessfully attempting to sell the footage to overseas media outlets, the appellant posted it on YouTube. He was convicted of accessing a computer system for a dishonest purpose and thereby obtaining property contrary to s 249(1)(a) of the Crimes Act.

• [14] On appeal to the Court of Appeal, the appellant contended that the CCTV footage did not constitute “property” for the purposes of s 249(1) of the Crimes Act. The Court of Appeal allowed the appeal on the basis that the CCTV footage was indistinguishable from pure information and therefore did not constitute “property” in terms of s 249(1)(a).¹⁵

• [15] The Supreme Court took a different view. It observed:¹⁶

13. As from 15 December 2021 the BDMRRA was replaced by the Births, Deaths, Marriages and Relationship Act 2021.

¹⁴ Dixon v R [2015] NZSC 147, [2016] 1 NZLR 678.

¹⁵ Dixon v R [2014] NZCA 329, [2014] 3 NZLR 504 at [31].

¹⁶ Dixon v R [2015] NZSC 147, [2016] 1 NZLR 678.

[25] The meaning of the word “property” varies with context. As Gummow and Hayne JJ put it in Kennon v Spry:¹⁷

[T]he term “property” is not a term of art with one specific and precise meaning. It is always necessary to pay close attention to any statutory context in which the term is used.

In the present case we are concerned with the dishonest acquisition of property from a computer system under s 249(1)(a). In that context and in light of the definition of property in s 2, we have no doubt that the digital files at issue are property and not simply information. In summary, we consider that the digital files can be identified, have a value and are capable of being transferred to others. They also have a physical presence, albeit one that cannot be detected by means of the unaided senses. Whether they are classified as tangible or intangible, the digital files are nevertheless property for the purposes of s 249(1)(a).

• [16] I consider the situation in the present case to be factually indistinguishable from that in Dixon. The material held by the DIA would undoubtedly be regarded as pure information. As Mr Radich pointed out for the respondent, if Mr McLean had obtained the details he sought during an oral discussion with a member of the DIA’s staff, that might also have constituted pure information. However, the position changed once the DIA provided the information to Mr McLean in hard copy and digital form. At that point the material assumed its own identity and ceased to be pure information.

• [17] Before considering whether s 228(1)(b) requires property to have economic value it is necessary for me to refer to a preliminary issue that I consider to be determinative of this aspect of the appeal.

Preliminary issue

• [18] I have concluded Mr McLean’s argument must fail for a reason that makes it unnecessary for me to consider whether an item must have economic value in order to constitute “property” under s 228(1)(b) of the Crimes Act. This flows from the fact that Mr McLean’s argument is based on the factual premise that the records he obtained had no economic value. However, there is no evidential basis for that premise. The summary of facts records the factual basis on which Mr McLean entered

¹⁷ Kennon v Spry [2008] HCA 56, (2008) 238 CLR 366 at [89] (footnotes omitted). See also the discussion in R T Fenton Garrow and Fenton’s Law of Personal Property in New Zealand (7^th ed, LexisNexis Ltd, Wellington 2010) ch 1.

his pleas. This does not state that the records had no economic value and the Crown has never conceded that this is the case. Nor is it possible for me to take judicial notice of that fact. For all I know there may be a market for records of the type Mr McLean obtained from the DIA using false information as to his identity.

• [19] If Mr McLean wished to advance this argument on appeal, he ought to have ensured the summary of facts stated that the records had no economic value. Alternatively, he should have defended the charge in the District Court and adduced evidence to support his argument or sought a disputed facts hearing after he entered his guilty pleas. He could then have sought to establish the lack of value through cross-examination of the Crown’s witnesses or by means of evidence adduced in his own defence. This would also have given the Crown the opportunity to adduce evidence supporting the proposition that it did have economic value. As matters currently stand, however, I cannot proceed on the basis that the records had no economic value.

• [20] The appeal cannot succeed for this reason. In case I am wrong on this point, however, I will go on to briefly consider Mr McLean’s argument based on the assertion that the records had no economic value.

Is it necessary for an item to have economic value in order to constitute “property” for the purposes of s 228(1) of the Crimes Act?

• [21] Mr McLean relies in this context on the reference in Dixon¹⁸ to the fact that the digital files in that case had a value. He says the birth records that he obtained did not have any economic value and they therefore did not constitute property in the same manner as the digital files in Dixon. The Crown takes a different view. It contends, also in reliance on Dixon, that it is not necessary for an item to have economic value in order to qualify as property for the purposes of s 228(1).

• [22] Although the Supreme Court evidently regarded the digital files in Dixon as having value, I do not consider the Court held that economic value is a prerequisite of “property” for the purposes of ss 2(1) and 249 of the Crimes Act. Rather, I consider it

¹⁸ In the passage set out above at [15].

held that the fundamental characteristic of “property” in this context is that it is capable of being owned and transferred. This is reflected in the following passage of the Court’s judgment:

• [38] In this context, we consider that the fundamental characteristic of “property” is that it is something capable of being owned and transferred. In New Era Printers and Publishers Ltd v Commissioner of Stamp Duties, Stringer J held that anything which is owned by one person and can be sold and transferred to another is property within both the popular and legal meanings of the term.¹⁹ The definition of “property” in s 4 of the Property Law Act 2007 is to similar effect:²⁰

property -

(a) means everything that is capable of being owned, whether it is real or personal property, and whether it is tangible or intangible property; and

(b) includes any estate or interest in property; ...

• [23] Once Mr McLean obtained copies of the birth records in hard copy and digital form, he became the owner of them and was free to deal with them as he saw fit. He could transfer the hard copy to a third party by physical delivery. He could transfer the digital records electronically. The records therefore possessed the essential features of ownership and transferability identified by the Supreme Court in Dixon.

• [24] Mr Mugisho emphasises, and I accept, that the Supreme Court noted that the courts are required to interpret the meaning to be given to “property” in accordance with the context in which it is being used. The wide general definition of that term in s 2(1) must be given a narrower meaning where the context requires that to be done.

• [25] This was the approach taken by Potter J in R v Cara.²¹ That case concerned the interpretation of the word “service” in s 228(1). Potter J began her analysis by observing:

It is indeed arguable, as the defence submitted, that the words “property”, “pecuniary advantage” and “valuable consideration” all involve an element of economic value and that the word “service” should be interpreted in the same way. However, the term “property”, which was inserted along with

¹⁹ While it is true to say that the current view is that information cannot be property, that was not always the case: see, for example, New Era Printers and Publishers Ltd v Commissioner of Stamp Duties [1927] NZGazLawRp 51; [1927] NZLR 438 (SC).

²⁰ Emphasis added.

²¹ R v Cara [2004] NZHC 2150; [2005] 1 NZLR 823 (HC).

“service” in the 2003 amendment, is broadly defined in s 2 as including real and personal property, money, electricity, any estate or interest in any real or personal property, any debt, any thing in action, and any other right or interest. “Property” is so broadly defined, in fact, that it need not involve an element of financial gain or economic value. In other words, the property that is intended to be obtained under s 228 could be something without any economic value. “Service” also could be interpreted in the same broad manner, particularly given that both of those terms were introduced by the 2003 amendment.

• [26] Potter J then analysed the legislative development of s 228. She noted that when the Crimes Act was amended in 2003, the original bill extended s 228 to apply to “any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The words “’benefit” and “privilege” were removed at the select committee stage. Potter J cited the following extract from the Select Committee’s report giving the reasons for this:²²

We examined the scope of the offence of dishonestly taking or using a document (clause 19, new section 305), particularly in the context of the words ‘benefit’ and ‘privilege’, and how the offence might apply in practice.

We consider that the terms ‘benefit and ‘privilege’ may unnecessarily broaden the offence. We recommend that new clause 19, proposed new section 228, be amended by removing the terms ‘benefit’ and ‘privilege’ to clarify that the offence relates to financial benefits.

• [27] This led Potter J to accept that the legislative history suggested that the purpose of s 228 as amended was to impose liability for the dishonest use of a document with the intent to obtain a financial benefit or gain.²³ However, she then observed:²⁴

This purpose is indeed reflected in the removal from the section of the words “privilege” and “benefit”. However the same cannot be said of the two words that were inserted in their place namely “property” and “service”. Both words are capable of a wide interpretation and indeed “property” as defined in s 2 is so broadly defined that it need not have any economic or financial benefit.

• [28] Potter J ultimately held that the term “service” in s 228(1) should be interpreted narrowly.²⁵ She held that it should be limited to a service involving a financial or economic element.

²² At 833.

²³ At 833.

²⁴ At 834.

²⁵ R v Cara [2004] NZHC 2150; [2005] 1 NZLR 823 (HC)at [142(b)].

• [29] Mr Mugisho submits the Court should take the same narrow approach when interpreting the term “property” in s 228(1). He contends it would create an anomaly if that term is interpreted as applying to items that have no economic value for the purpose of s 228(1). Such an interpretation would leave “property” as the only item specified in s 228(1) that is not required to have an economic value.

• [30] I agree that this would be the outcome if the Crown’s submission is correct. However, I do not consider this to be problematic as a matter of either policy or practice. Most items will have economic value, even if it is minimal. Situations will arise, however, where a party uses a document or some other dishonest means to acquire an item that has no market or resale value. A photograph or memento that has sentimental value to the owner but no economic value to any person would fall within this category. I see no policy reason why a person who acquires such an item dishonestly should evade criminal liability for doing so. In cases where property does not have economic value this is likely to be reflected in the penalty imposed if the charge is established.

• [31] I also consider significant practical difficulties may arise if the term “property” as it is used in s 228(1) applies only to items having economic value. This would require the prosecution to prove this element beyond reasonable doubt. However, in some cases the economic value of an item may only be known to the defendant. It may not be apparent to an investigating authority.

• [32] The present case provides a good example of this. Mr McLean was prepared to pay the prescribed fees to acquire the birth records. Presumably he would only have been prepared to do so because they had value to him. However, unlike the appellant in Dixon who unsuccessfully tried to sell the CCTV footage, Mr McLean has never disclosed what he intended to do with the records he obtained from the DIA.

• [33] I have therefore concluded that as a matter of policy and practice a person may be criminally liable under s 228(1) if they dishonestly use a document to acquire property regardless of whether the property in question has economic value.

The decision to charge Mr McLean under s 228(1) of the Crimes Act rather than s 89(1)(g) and (h) of the Births, Deaths, Marriages and Relationships Registration Act 1995

• [34] Mr Mugisho points out that s 89(1)(g) of the BDMRRA makes it an offence to make a false statement for the purpose of obtaining a source document or a copy of a source document from the DIA. Section 89(1)(h) makes it an offence to knowingly provide false identification for a purpose contemplated by that Act. He submits that any charge in the present case should have been laid under those sections rather than under s 228(1) of the Crimes Act. He also points out that the time for laying a charge under those sections had expired by the time the police laid the present charges. Mr Mugisho therefore submits the present charges are an abuse of the Court’s process.

• [35] As Mr Radich points out, however, the discretion whether to lay a charge, and if so in what form, is a matter for enforcement agencies such as the police. The courts will not review decisions of this type unless they result in an abuse of the court’s process.²⁶

• [36] If Mr McLean wished to advance this argument, he ought to have applied for a stay of the charges in the District Court. The police would then have had an opportunity to explain why they laid the present charges rather than charges under the BDMRRA. I consider it is now too late to advance the argument for the first time on an appeal following the entry of guilty pleas. The police have no ability at this stage to explain why they laid charges under the Crimes Act rather than the BDMRRA. This ground of appeal fails as a result.

Result

• [37] The appeal against conviction is dismissed.

Lang J

²⁶ Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA).