R v Javid

[2007] NZCA 232

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/06
[2007] NZCA 232

THE QUEEN

v

MAJID SAFAEI JAVID

Hearing:28 February and 3 May 2007

Court:William Young  P, Robertson and Wilson JJ

Counsel:W M Ryan and B P Molloy for Appellant

M D Downs for Crown

Judgment:11 June 2007 at 3 pm

JUDGMENT OF THE COURT

A        The specific questions of law are answered:

(i)An interception warrant issued under s 15 of the Misuse of Drugs Amendment Act 1978 can confer authority on the police to intercept communications from cellular telephones, the numbers of which are not expressly stated in the application for the warrant and/or the warrant itself;

(ii)The method by which text messages obtained from Vodafone by the police in the present case did not amount to an interception within the meaning of the Misuse of Drugs Amendment Act 1978; and

BUnder s 382(2)(a) of the Crimes Act 1961, we confirm the convictions entered against the appellant.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       This appeal concerns two questions of law reserved pursuant to s 380 of the Crimes Act 1961 with regard to some aspects of practice and procedure relating to interception warrants issued under the Misuse of Drugs Act 1975.

[2]       The appellant, Mr Javid, was indicted for importing methamphetamine into New Zealand, being in possession of methamphetamine for the purposes of supply and supplying methamphetamine.

[3]       Part of the case which the Crown proposed to lead was evidence of communications with third persons which had been obtained following the issue of an interception warrant by Simon France J in the High Court at Auckland on 9 March 2004.

[4]       A challenge to the admissibility of the evidence was dealt with under s 344A of the Crimes Act.  Cooper J found that the evidence was admissible.  On that basis, when Mr Javid was arraigned and the jury had been empanelled, Simon France J explained to the jury that there had been a ruling about admissibility of evidence which meant the outcome was inevitable and that they should return guilty verdicts.  This duly occurred, convictions were entered and the process to come to this Court commenced.

[5]       The specific questions of law were eventually framed as:

(a)whether an interception warrant issued under s 15 of the Misuse of Drugs Amendment Act 1978 confers authority on the police to intercept communications from cellular telephones, the numbers of which are not expressly stated in the application for the warrant and/or the warrant itself; and

(b)whether the method by which the text messages were obtained from Vodafone by the police in the present case amounted to an authorised interception within the meaning of the Misuse of Drugs Amendment Act 1978.

[6]       We propose to discuss the case by reference to the following questions:

(a)The first question – does it matter that the particular cellphone number was not specified on the warrant?

(b)The second question – did the actions of the police in relation to the text messages involve an interception?

(c)The third question – should the text message evidence obtained from Vodafone have been excluded?

[7]       During the hearing on 28 February 2007, we were informed by the Crown that an appeal, R Taui [2007] NZCA 233, involving the consideration of largely similar issues, was to be heard by this Court. A second hearing of this matter was held to coincide with the Taui appeal and these cases were heard contemporaneously.  The Taui judgment should be read as being applicable to this case as well.

Does it matter that the particular cellphone number was not specified on the warrant?

[8]       The pivotal evidence in support of the application for an interception warrant under s 15 of the Misuse of Drugs Amendment Act 1978 (Amendment Act) was as follows:

It is proposed to intercept the private communications of Majid Safaei Javid of 98 Lynn Road, Glenfield, Auckland; with others as yet unidentified persons who may be involved with the aforesaid in drug dealing offences by:

(a)placing interception devices to monitor and record audio communications in the premises of Majid Safaei Javid of 98 Lynn Road, Glenfield, Auckland; where I believe that the aforementioned persons will discuss matters relating to the commission of drug dealing offences.

(b)Using interception devices to monitor and record communications, including voice and fax communications to and from any telephone, connected to the premises occupied by Majid Safaei Javid of 98 Lynn Road, Glenfield, Auckland; where I believe that the aforementioned persons will discuss matters relating to the commission of drug dealing offences.

(c)Using interception devices to monitor and record cellular communications, including voice and text messages to and from cellular telephone numbers [phone] and [phone] believed to be used by Majid Safaei Javid of 98 Lynn Road, Glenfield, Auckland; and any other cellphone numbers the aforementioned person may acquire and use during the period of this anticipated interception warrant; wherever they may be located and used.

For the purposes of monitoring the landline telephones and cellphones there is no requirement to enter premises for the purpose of placing interception devices.  Rather it is facilitated by the use of specialised electronic equipment and the network operator’s assistance.  (Emphasis in original)

[9]       The warrant issued was in a general form and was an authorisation “to use interception devices to intercept the private communications of Majid Safaei Javid of 98 Lynn Road, Glenfield, Auckland”.

[10]     Some of the evidence which the Crown proposed to lead at trial was obtained from a cellphone 021 2300640.  That is a cellphone to which no reference was made in the application or in the warrant. 

[11]     It is the appellant’s contention that this warrant was “too widely drawn, general and lacking in specificity” and consequently unlawful.

[12]     The starting point for this argument was the comments of Tipping J delivering the judgment of this Court in Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 at [38]:

For centuries the law has set its face against general warrants and held them to be invalid.  Entry onto or into premises pursuant to an invalid warrant is unlawful and a trespass … A general warrant in this context is a warrant which does not describe the parameters of the warrant, either as to subject-matter or location, with enough specificity.

[13]     As Cooper J noted, Tranz Rail was concerned with search warrants, but Mr Ryan argued that it was nonetheless relevant and that the approach and sentiment reflected what Tipping J had said earlier in Re Application for an Interception Warrant (1993) 11 CRNZ 39 at 42-43 (HC):

It seems to me to be clearly implicit in the statutory form of warrant that, with regard to premises, authority can be given only in respect of premises or places specifically described in the warrant.  The form of warrant in respect of premises authorises the interception of private communications at the premises or place in question.  As the form indicates, the premises or place to be inserted in the warrant are the premises or place believed to be used for any purpose by a person involved in the drug dealing offence.  That must be a reference to belief at the time of the application.  Thus it is clear, in my judgment, that the premises or place must be specifically identified in the warrant.  The same can be said of part three of para 4 dealing with entry.  The warrant is required to state the vehicle, place, or premises that may be entered.  That requirement does not permit the warrant to be issued in respect of unspecified vehicles, places, or premises or in respect of premises, vehicles, or places which may later become the subject of a reasonable belief by the commissioned officer of police. (Emphasis in original)

[14] Tipping J was discussing there the original provisions of the Amendment Act. The statute has been further amended by s 35 and sch 2 of the Crimes Amendment Act 2003. Instead of “premises or place” the Amendment Act now provides “premises, place, thing, or type of facility”. Mr Ryan submitted that this strengthened his argument for similar focus, constraint and particularity in all interception warrants as in other areas of intrusion.

[15]     Cooper J held that when the reasoning of Tipping J was analysed, his concerns were directed to “premises” and “entry” and that, in respect of what he described as “person warrant alone”, no such particularity reference was made.

[16]     A reading of the plain words of the Amendment Act makes clear that specific telephone numbers need not be identified in an application for an interception warrant or in a warrant which is issued.

[17]     Section 14(2) of the Amendment Act is a virtual code.  It creates a list of the mandatory requirements.  The manner of the proposed interception is required to be given together with the name and address “of the target suspect if known”.  There is no specific requirement to identify telephone numbers.  Even where the interception is sought to attach to “premises, place, thing, or type of facility” there is no specified requirement with regard to a telephone number.

[18]     Section 15 of the Amendment Act lists the criteria about which the Judge must be satisfied.  This does not include specific telephone numbers.

[19]     In like manner, s 16 identifies the mandatory contents of an interception warrant.  It is silent on the issue of telephone numbers. 

[20]     This reading of the words is confirmed in the prescribed form which does not explicitly require the identification of any telephone numbers.  This open-textured approach is entirely consistent with the underlying policy which is responsive to the ease with which those involved in criminal activity can change telephone numbers simply by acquiring another cellphone or SIM card.  A narrower construction as advanced by the appellant would defeat the purposes of the legislation.

[21]     The operative regime is predicated on the basis that what may be intercepted under the authorisation are communications with and by the named individual.  The intrusion on the rights of that person do not alter depending on the particular mechanism which the person adopts for communicating with others.

[22]     We are satisfied that the plain statutory language places an obligation on the police application to clearly state, and a warrant to include, the “premises, place, thing or type of facility” where there is no known individual being targeted.

[23]     In the present case no authority was being sought to enter private premises.  It was only an authority to intercept communications by and with a named individual. 

[24]     The issues were considered by Priestley J in R v McFall HC HAM T20514 28 June 2005.  There has been some legislative amendment since the period with which he was dealing, but the thrust of what the Judge said remains correct.  When dealing with a warrant for the interception of calls to a named and identified individual, there is no need in either the evidence or the warrant to identify the particular landline or mobile telephone which can be intercepted.  The core inquiry is whether it is a conversation involving the identified person.

[25]     A slight twist in this case is that in the application there was reference to two particular cellphone numbers but there was no reference to phone number 021 2300640 – a number to which the police, in an application for a search warrant obtained six months earlier, had specifically referred in connection with the present applicant. 

[26]     On the day this current warrant was issued, a detective-sergeant wrote to Vodafone New Zealand advising that there was an interception warrant which related to the telephone number 021 2300640.

[27]     Since the appeal hearing, an affidavit has been filed which deposes the reasons why 021 2300640 was not specifically mentioned in the application for an interception warrant made on 9 March 2005 when the police were able to alert Vodafone to the fact that the appellant was using that number on the day the warrant was granted. 

[28]     The answer is that the officers involved thought that Mr Javid had stopped using that number, but on the very day that the interception warrant was granted they learnt that it was again being used by Mr Javid.  Vodafone were advised accordingly late on the day when that information came to hand as it was clearly encompassed within the warrant which was granted.

[29]     There is nothing of consequence in this in light of our interpretation of the statutory and regulatory requirements which impacts upon our decision.

[30]     The first question is answered that an interception warrant, issued under s 15 of the Misuse of Drugs Amendment Act 1978, can confer authority on the police to intercept communications from cellular telephones the numbers of which are not expressly stated in the application for the warrant and/or the warrant itself.

Did the actions of the police in relation to the text messages involve an interception?

[31]     This Court in R v Cox (2004) 21 CRNZ 1 had regard to a not dissimilar situation regarding an arrangement between the police and Vodafone.  In essence, after the police had applied for and obtained call data warrants, they advised Vodafone thereof on the basis that, as a result, there would be what was described as a “pre-loading” of the records relating to the relevant number. 

[32]     It is common ground that, when a text message is sent on a Vodafone telephone, a record of it is kept only for about 30 hours and then destroyed.  However, the process of pre-loading means that the record of the message is kept indefinitely and the police, where they are interested in its contents, can seek a search warrant under s 198 of the Summary Proceedings Act 1957 and thereby access the information.

[33]     This Court held in Cox that ‘intercept’ as defined in the Telecommunications Act 2001 is a process which occurs simultaneously with the communication and/or its transmission.  The storage of electronic traces from which the content of the communication can subsequently be reconstructed does not constitute interception.

[34]     From 1 October 2003 there was a statutory scheme which specifically addressed the interception of text communications in parts 9A and 11A of the Crimes Act and similarly in the provisions of the Amendment Act.  They did not relate to the factual position in Cox which was decided on the basis of the law as it was prior to 1 October 2003. 

[35]     Subsequently, the Telecommunications (Interception Capability) Act 2004 came into force.  That Act defines “intercept” as follows:

3Interpretation

…

intercept, in relation to a private telecommunication, includes hear, listen to, record, monitor, acquire, or receive the telecommunication either –

(a)       while it is taking place on a telecommunications network; or

(b)       while it is in transit on a telecommunications network.

[36]     Section 7 places a legal duty on network operators and service providers to ensure that their communication network has an interception capability and by inference a duty to assist surveillance agencies in the execution of a warrant.  

[37]     Notwithstanding the subsequent amendments, the underlying philosophy espoused by this Court in Cox remains valid and the amendments do not alter the base question as to whether what occurred amounted to an interception at all.  For the reasons discussed in Cox we are of the view that it does not.  Consequently there was no duty placed on Vodafone to prevent the deletion of the text messages.  However, as the Court noted in Cox, there was no impediment to Vodafone acting as a good citizen and providing assistance to law enforcement authorities which appears to be what occurred in the present case.

[38]     Mr Ryan contended that the police had acted in bad faith in obtaining an interception warrant and presenting it to Vodafone when they knew that text messaging was not covered by the warrant.

[39]     Standing back from this matter, the position appears to have been that the police sought an interception warrant because they were interested in communications by and to Mr Javid.  Having passed the high test necessary to achieve such an authorisation, the police then advised Vodafone of its existence in relation to a relevant telephone number.  In accordance with, what for the purposes of this case was acknowledged to be, an existing protocol for a period of 30 days Vodafone ensured that text messages by and to Mr Javid on that number were maintained in a form in which they were retrievable.

[40]     Notwithstanding the form of the second question before us, it is clear that there was in law no interception.  As there was no interception there could not be an ‘unauthorised’ interception.  The information which was complained about was not obtained by interception.

Should the text message evidence obtained from Vodafone be excluded?

[41]     Mr Ryan argued that, as the police obtained an interception warrant (not a warrant under s 198 of the Summary Proceedings Act 1957) and the information was not obtained by interception, the police had obtained the information by way of unlawful and/or unreasonable search and seizure. 

[42]     Applications for an interception warrant can only be made to a High Court Judge: Amendment Act, s 14.  Section 15 outlines the matters that a Judge must be satisfied of before granting an interception warrant:

15     Matters on which Judge must be satisfied in respect of applications

(1)       On an application made to him in accordance with section 14 of this Act, the Judge may grant an interception warrant if he is satisfied that it would be in the best interests of the administration of justice to do so, and that—

(a)There are reasonable grounds for believing that a person has committed, or is committing, or is about to commit a drug dealing offence; and

(b)There are reasonable grounds for believing that evidence relevant to the investigation of the offence will be obtained through the use of an interception device to intercept private communications; and

(c)       Whichever of the following is applicable:

(i)Other investigative procedures and techniques have been tried but have failed to facilitate the successful conclusion of the Police investigation of the case; or

(ii)Other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case, or are likely to be too dangerous to adopt in the particular case; or

(iii)The case is so urgent that it would be impractical to carry out the Police investigation using only investigative procedures and techniques other than the interception of private communications; and

(d)The private communications to be intercepted are not likely to be privileged in proceedings in a Court of law by virtue of any of the provisions of Part 3 of the Evidence Amendment Act (No 2) 1980 or of any rule of law that confers privilege on communications of a professional character between a barrister or solicitor and his client.

(2)       Without limiting subsection (1), in determining whether or not to issue an interception warrant under this section, the Judge must consider the extent to which the privacy of any person or persons would be likely to be interfered with by the interception, under the warrant, of private communications.

[43]     By contrast a search warrant may be granted under s 198 of the Summary Proceedings Act by a District Court Judge, Community Magistrate or Registrar.  In determining whether to grant such a warrant the decision maker need only be satisfied of the following:

198     Search warrants

(1)       Any District Court Judge or Justice or Community Magistrate, or any Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place—

(a)Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

(b)Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

(c)Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence—

may issue a search warrant in the prescribed form.

[44]     There is a much higher hurdle to obtain an interception warrant under s 15 of the Amendment Act than a warrant under s 198 of the Summary Proceedings Act.

[45]     Analysing what happened here under search and seizure principles, we conclude that:

(a)Following the approach taken by Fisher J in R v Saunders [1994] 3 NZLR 450 at 470-471 (CA) the obtaining of confidential information by the police is properly seen as a search and seizure.

(b)There is no confidence in iniquity: R v Harris [2000] 2 NZLR 524 at [101] (CA). As discussed by this Court in Cox at [33] to [35], there is no breach of confidentiality in relation to communications involving drug dealing activities.  So this particular appellant could not legitimately complain, against Vodafone, that his confidence in the texts had been breached.

(c)In a search and seizure context, the Courts are slow to allow a search to be justified by ex post facto reasoning: R v Williams [2007] NZCA 52 at [66] as to standing. But this reluctance would not necessarily apply where a person who “owns” information, but has prima facie confidentiality obligations, voluntarily makes it available to the police because he or she bona fide believes that those obligations are not applicable because of iniquity. It may be that Vodafone took the view that the interception warrant provided independent verification of the legitimacy of the police request for the texts: Cox at [69]. If this is so, it would be reasonable to conclude that Vodafone consented to the provision of the information to the police. On this basis the police actions either should not be categorised as a search and seizure, or alternatively were lawful and reasonable: Cox.

(d)The perhaps more plausible interpretation of the facts is that Vodafone assumed that the interception warrant required it to provide the relevant texting information to the police.  If this is the correct interpretation of the facts, the obtaining of that information by the police must be viewed as a search and seizure that is unlawful and unreasonable.

[46]     Accordingly, we approach the case on the basis that the search and seizure of the texting information involved a breach of s 21 of NZBORA.  So should the evidence be excluded?

[47]     The breach of s 21 is not serious.  We are of the opinion that the breach was of a technical nature for the following reasons:

(a)The police did obtain an interception warrant and accordingly passed a more exacting standard than that which would have applied if they had obtained a warrant under s 198;

(b)The legislative scheme relating to what constitutes an interception is complex and it is not surprising that the police relied on an interception warrant; and

(c)Had the police applied for a warrant under s 198 the warrant would have been granted.

[48]     There are a number of public interest factors that point to admitting the evidence:

(a)       The evidence is reliable and highly probative;

(b)The evidence is important to the prosecution case; and

(c)The offences Mr Javid faced were serious.

[49]     Under the R v Shaheed [2002] 2 NZLR 377 (CA) balancing exercise, the exclusion of the text message evidence would have been a disproportionate response to the breach. We are satisfied that the evidence was properly admitted.

Result

[50]     The specific questions of law are answered:

(a)an interception warranted issued under s 15 of the Misuse of Drugs Amendment Act 1978 can confer authority on the police to intercept communications from cellular telephones, the numbers of which are not expressly stated in the application for the warrant and/or the warrant itself; and

(b)the method by which text messages obtained from Vodafone by the police in the present case did not amount to an interception within the meaning of the Misuse of Drugs Amendment Act 1978.

[51]     Under s 382(2)(a) of the Crimes Act 1961, we confirm the convictions entered against the appellant.

Solicitors:
Haigh Lyon, Auckland, for Appellant
Crown Law Office, Wellington