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4 Jurisdiction

81 The English Court of Appeal has recently considered the issue of jurisdiction in a case involving international computer misuse. In R v Governor of Brixton Prison ex p Levin [1997] QB 65 the applicant accessed a US bank computer from Russia in order to transfer funds to his own account. The English Court of Appeal held that acts necessary to constitute the offences of forgery and theft had been committed in the US. In relation to forgery, the Court stated:

The applicant’s keyboard was connected electronically with the Citibank computer in...[the US]; as he pressed the keys his actions, as he intended, recorded or stored information for all practical purposes simultaneously on the magnetic disk in the [US] computer. That is where the instrument was created and where the act constituting the offence was done (80).

82 The Court went on to state:

In the case of a virtually instantaneous instruction intended to take effect where the computer is situated it seems to us artificial to regard the insertion of an instruction onto the disk as having been done only at the remote place where the keyboard is situated (82).

83 In New Zealand, courts will have jurisdiction in respect of offences under the Crimes Act 1961 if:

any act or omission forming part of any offence, or any event necessary to the completion of any offence occurs within New Zealand...whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event (s 7 Crimes Act 1961).

84 There is no New Zealand authority which considers the issue of jurisdiction in a case of international computer misuse. However, it is likely that New Zealand courts will assume jurisdiction where a person situated overseas commits an offence involving a computer in New Zealand. In Solicitor-General v Reid [1997] 3 NZLR 617 the respondent had sworn a false affidavit in New Zealand for use in proceedings in the Hong Kong Court of Appeal in return for NZ$1million. Justice Paterson stated that had he been required to determine the issue he would have held that New Zealand courts had jurisdiction to hear the case. Justice Paterson expressed approval of the decision in Libman v The Queen (1985) 21 CCC (3d) 206 where the Supreme Court of Canada held that the test was whether there was a “real and substantial link” between the offence and the country asserting jurisdiction to try the offence. He also held that there was nothing contrary to international comity in such an assumption of jurisdiction. Justice Paterson stated:

In this case, all the activities which constituted the attempt to pervert the course of justice took place in New Zealand. The affidavit was sworn here and the one million dollars was paid here. There was a real and substantial link between the offence under s 117(d) of the Crimes Act [obstructing the course of justice] and New Zealand. International comity in this case suggests that New Zealand should have jurisdiction as it is contrary to good international relations to stand by and allow events to occur in New Zealand which harm the judicial process in another country. There is certainly nothing in international comity which suggests that Mr Reid should not be prosecuted here. For these reasons, I would have held that the court did have jurisdiction to convict Mr Reid (632).

85 It is probable that New Zealand courts would follow the approach taken in R v Governor of Brixton Prison ex p Levin and in Solicitor-General v Reid. Assuming this is correct, New Zealand courts would generally assume jurisdiction where either the computer or the hacker were situated in New Zealand.

86 However, in our view the existing jurisdiction provisions in the Crimes Act 1961 are inadequate to deal with computer misuse activities. First, there are situations where the effects of computer misuse may be felt in New Zealand even though neither the hacker nor the computer were situated in this country.²⁰ In these situations, it may not always be possible to successfully argue, in terms of s 7 Crimes Act 1961, that “any act or omission forming part of [the] offence, or any event necessary to the completion of [the] offence” had occurred within New Zealand. Secondly, in many cases it will be impossible to determine where the hacker was at the time the computer misuse activities took place.

87 Computer misuse is international and can be committed across borders with ease. Given this fact, as well as the difficulties of relying on the current jurisdiction provisions of the Crimes Act 1961, we recommend that a provision be enacted giving New Zealand courts jurisdiction in computer misuse offences wherever they are committed.²¹