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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Javid

Details

AGLC: R v Javid [2007] NZCA 232
Case: [2007] NZCA 232
Decision Date: 11 June 2007

CaseChat Overview and Summary

The case of R v Javid was heard by the Court of Appeal of New Zealand, where the appellant, Mr Majid Safaei Javid, appealed against his convictions for importing, possessing, and supplying methamphetamine. The appeal centred on two key questions of law concerning the interpretation and application of interception warrants under the Misuse of Drugs Amendment Act 1978. Specifically, the questions were whether an interception warrant could authorise the interception of communications from cellular phones not explicitly mentioned in the warrant and whether the method employed by the police to obtain text messages from Vodafone constituted an interception under the Act.

The Court addressed the first question by examining the statutory language and the purpose behind the legislation. It concluded that the plain words of the statute did not require specific telephone numbers to be identified in the warrant, as the focus was on intercepting communications by and with the named individual. The Court emphasised that the ease with which criminals can change their phone numbers justified a broad interpretation of the warrant. The second question was answered by distinguishing between the storage and retrieval of electronic traces of communications and the actual process of interception. The Court held that the method used by the police to obtain the text messages from Vodafone did not amount to an interception as defined in the Act.

Ultimately, the Court confirmed the convictions against the appellant, finding that the evidence obtained, though technically obtained in breach of the New Zealand Bill of Rights Act 1990, was properly admitted under the balancing test set out in R v Shaheed. The Court found that the breach was technical, the evidence was highly probative and important to the prosecution case, and excluding it would have been a disproportionate response.

Orders