The Queen v Taui
[2007] NZCA 233
•11 June 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA437/06
[2007] NZCA 233THE QUEEN
v
ROBERT JASON TAUI
Hearing:3 May 2007
Court:William Young P, Robertson and Wilson JJ
Counsel:S N Hewson for Appellant
M D Downs for Crown
Judgment:11 June 2007 at 3 pm
JUDGMENT OF THE COURT
LEAVE TO APPEAL IS GRANTED, BUT THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
[1] This application for leave to appeal a pre-trial ruling is concerned with the definition of “intercept” in the Misuse of Drugs Amendment Act 1978 and the associated issue whether the decision of this Court in R v Cox (2004) 21 CRNZ 1 remains applicable notwithstanding an intervening statutory amendment. A mirror definition of “intercept” is in s 216A(1) of the Crimes Act 1961.
[2] This case was heard contemporaneously with the second hearing of R v Javid [2007] NZCA 232 which involved the consideration of largely similar issues. The reasoning in this judgment is applicable to the Javid decision.
Background
[3] Mr Taui has been charged with five counts under the Misuse of Drugs Act 1975 alleging offers to deal in class A, B and C drugs, plus two counts of being in possession of offensive weapons and a firearms charge which arose from a search conducted when Mr Taui was arrested.
[4] As part of the investigation of Mr Taui and his activities, the police accessed text messages transmitted from his mobile phone. The pivotal question is whether these messages are admissible.
[5] The call associated data and the contents of the text messages were obtained by the police in a process engaging s 198 of the Summary Proceedings Act 1957 and was in conformity with the approach countenanced by this Court in Cox.
[6] The crux of the case is whether, in light of the evidence given in this case and amendments to the legislation since Cox was decided, such a process is lawful.
The legislative framework
[7] Section 216B of the Crimes Act 1961, inasmuch as it is relevant, provides:
216B Prohibition on use of interception devices
(1)Subject to subsections (2) to (5), every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device.
(2)Subsection (1) does not apply where the person intercepting the private communication –
(a) is a party to that private communication; or
(b) does so pursuant to, and in accordance with the terms of, any authority conferred on him or her by or under –
…
(iv) the Misuse of Drugs Amendment Act 1978;
…
(3)Subsection (1) of this section does not apply to the interception by any member of the police of a private communication … by means of an interception device where -
(a)An emergency has arisen in which there are reasonable grounds for believing that any person (in this section referred to as the suspect) is threatening the life of, or serious injury to, any other person in his presence or in the immediate vicinity; and
(b)The use of the interception device by that member of the police is authorised by a commissioned officer of the police who believes on reasonable grounds that the use of the interception device to intercept any private communication … to which the suspect is a party during the emergency will facilitate the protection of any person who is threatened by the suspect.
(4)Subsection (1) does not apply to monitoring prisoner call under section 113 of the Corrections Act 2004.
(5)Subsection (1) does not apply to the interception of private communications by any interception device operated by a person engaged in providing an internet or other communication service to the public if –
(a)the interception is carried out by an employee of the person providing that internet or other communication service to the public in the course of that person’s duties; and
(b)the interception is carried out for the purpose of maintaining that internet or other communication service; and
(c)the interception is necessary for the purpose of maintaining the internet or other communication service; and
(d)the interception is only used for the purpose of maintaining the internet or other communication service.
(6)Information obtained under subsection (5) must be destroyed immediately if it is no longer needed for the purpose of maintaining the internet or other communication service.
(7)Any information held by any person that was obtained while assisting with the execution of an interception warrant must, upon expiry of the warrant, be –
(a) destroyed immediately; or
(b) given to the agency executing the warrant.
[8] “Intercept” is defined in s 216A of the Crimes Act 1961 and s 10 of the Misuse of Drugs Amendment Act 1978 as:
“intercept”, in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the communication either –
(a) while it is taking place; or
(b) while it is in transit.
[9] The Crimes Amendment Act 2003 extended the definition of private communications to include text messaging as:
private communication –
(a)means a communication (whether in oral or written form or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b)does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.
[10] The Telecommunications (Interception Capability) Act 2004 contains a slightly different definition and provides:
Intercept, in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive telecommunications either:
(a) while it is taking place in a telecommunication network, or
(b) while it is in transit on a telecommunications network.
The High Court decision
[11] Gendall J heard extensive evidence as to what in fact occurred in this case which he assumed was the same with other telecommunications companies in such circumstances.
[12] The critical parts of his judgment are:
[15] The evidence in the depositions from police officers was generally to the effect that upon learning of cellphone numbers being used by the respective accused requests were made to fraud analysts employed by Vodafone, requesting that text content and data from such cellphone numbers not be destroyed by Vodafone. Later, search warrants were obtained pursuant to the Summary Proceedings Act 1957, authorising search of Vodafone’s business records to access the text and data content stored electronically by Vodafone. Upon receipt of the search warrants, the information requested regarding a particular phone number is obtained from the electronic computer storage system of Vodafone, prepared onto a spreadsheet and forwarded to the police.
…
[17] A sender of a text message types a message into a cellphone. Upon pressing the “send” button, intending the text to go to a recipient, the phone electronically takes a copy of the message, and keeps it. It transmits the copy through the Vodafone network using various means. Initially it is over an air/radio signal and, the original text message remains in the sender’s handset. What is transmitted electronically is a copy of the original text which is received by a computer at Vodafone at what is known as the SMSC (Short Message Service Centre). That computer acknowledges receipt of the electronic message to the handset of the sender. That computer stores the message electronically, in binary form in its memory. It is digitally stored. This is essential for the network to be able to facilitate the next step.
[18] The computer then determines the source to which the electronic data is to be delivered. It then attempts to deliver the message to the recipient cellphone. For a period of time three identical copies of the binary (digital) information is in existence. An analogy might be with carbon copies of a letter. The computer retains one copy and passes a second on to the recipient cellphone [(text copy 2)], which receives it. The transmission has taken place. When that phone is “opened” or the message “seen” by someone, an electronic acknowledgement is sent from the receiver’s handset, to SMSC computer. This conveys that the message has been “Delivered”. The computer has to retain the original copy otherwise it would have lost the electronic information transmitted before the “Delivered” response is received. It is done so as to guarantee delivery. …
[19] The messages are still in digital or binary format, that is numerals indecipherable by anyone. The entire Vodafone network is digital and everything transmitted is in binary format. Once text copy 2 is received and opened at the recipient’s phone, and an acknowledgement conveyed back to the computer’s database, the stored electronic data is purged or deleted. That is done only during quiet periods generally between 12 midnight and 2.00am, because of the volume of traffic that occurs through the system.
[20] So, if a text message is received and opened on the first attempt, it remains in the computerised system at the SMSC in its copy form until the next purge cycle. However, if it is sent but not opened by the intended recipient (although received by that cellphone), then the computer will retry, over different periods, to re-send that message. After three days it marks the message as “undeliverable” and it is then also purged.
[21] As a matter of fact all Vodafone texts relevant to this case were designated as “Delivered”. For completeness I record that if a text message had been sent by Vodafone’s SMSC computer to a Telecom network cellphone “Delivered” status refers to Telecom network receiving the message.
[22] When the fraud analysts are requested to pre-load or divert the electronic binary copies of messages from the SMSC computer, they do so by converting the binary or digital copies into words, and adopt a process of capturing the stored data by transfer of it through another network (“Vodafone Corporate Network”) to a storage system. The system queries the database, retrieves the information and converts it into readable format and then stores it. …
[23] The evidence was that the purge category, and the accessing of the stored copy by the fraud analyst, only arises if the message has been “Delivered” or “Unsuccessfully Delivered” for three days. The evidence was the text message was not still in transit between sender and recipient’s phone at the purge category stage. Whether designated “Deliverable” or “Unsuccessfully Delivered” the process had already been completed and it was Mr Williams’ belief that the system would not pull out messages that had not been delivered. The witness gave as an analogy that the method of the “parking” of the data as:
I suppose it would be taking the carbon of the carbon copy, retrieving it from the rubbish bin before the bin’s been emptied, photocopying it and then letting the carbon itself get destroyed and then you’ve got a different photocopy of it [in] a different box.
[24] Ms Dean, a fraud analyst employed by Vodafone, described the computerised process which captures the copied binary data if requested by her. The point at which, if requested, capture of the stored data by her is undertaken, occurs once a day before the messages are purged. It is performed electronically, although the programme enables her to receive the message in words which were sent to the police if subject to a Summary Proceedings Act search warrant, by email.
[25] The evidence was that against each of the messages conveyed to the police the word “Delivered” was recorded. This was the evidence of Detective Lockyer. The information contained a column which was headed “Status” with the word “Delivered” beside each message meant that the message had been sent by the SMSC computer at Vodafone to another number or receiver. That is, it had been delivered before the copy had been extracted by Ms Dean. As I have said, if the text message is delivered to a Telecom network the status column reference to “Delivered” signified that Telecom had acknowledged receipt of the text.
[13] On the basis of this evidence, Gendall J concluded at [27]:
… On the evidence that I have heard, I am satisfied that there was no such interception. The obtaining of the text messages by the police pursuant to the search warrant occurred well after there was any transmission of the communication, and at that time there was no communication in transit or taking place.
[14] In reaching that conclusion, he specifically rejected the submission that the interception occurred when the fraud analyst for Vodafone preloaded or obtained the binary copies of messages from the SMSC computer. He rejected this for a number of reasons. First, because the status of all the text messages in the particular cases was “Delivered”. This meant not just received by the recipient’s telephone but also accessed and opened so that it was no longer “in transit” or “taking place” when the copy was parked just prior to purging. Pre-loading cannot be an interception because it occurs prior to the communication and the accessing of the binary information is not an interception because it occurs after the communication.
[15] Secondly, whenever a text message is sent through the Vodafone network and computers, an electronic copy is recorded in the SMSC computer. This is necessary for the proper operation of the system. Once the recipient’s cellphone or telephone receives the binary data, nothing further is or can be required on the part of the sender or Vodafone. This again is consistent with the communication no longer being “in transit” nor “taking place”.
[16] Thirdly, the binary electronic data stored or retained is an essential part of the transmission process. It was not just an opportunity for the preservation of information as mentioned in Cox but an absolute operational requirement.
[17] The Judge rejected the argument that Cox suggested that the new legislation brought text messages into the category of requiring an interception warrant. He focused on what this Court said at [29]:
We think that the concept of interception in this context refers to processes that occur simultaneously with a communication and/or its transmission. For instance, reconstructing the contents of a handwritten letter from indentations left on the sheets of paper underneath is not an interception of that letter. Likewise, rescuing the indented sheets of paper from intended destruction by removing them from a rubbish tin is also not an interception of the letter. Recognising, as we do, that the technical evidence in the High Court was limited, we see that as an appropriate analogy.
Appellant’s contention
[18] In a nutshell, Mr Hewson’s argument was that an interception warrant has to be issued and directly related to the interception of text messages before evidence of such messages is admissible in a criminal trial. He argued that obtaining text messages through the use of a search warrant and voluntary co-operation procedures adopted by the police and the telecommunications company is unlawful and that Cox is not relevant in light of the statutory amendment.
[19] He also sought assistance from the terms of s 8(1)(e) of the Telecommunication (Interception Capability) Act 2004, and a further argument that under the Vodafone operation arrangement, all text messages are intercepted.
Crown response
[20] Mr Downs contended that the appellant’s thesis is unsustainable when a proper assessment is made of the definition of “intercept” in the various Acts.
[21] First, he noted that it applied to all types of private communications and therefore telephone conversations, email traffic, text messages and facsimiles are all included. He noted that the legislative net includes: hear, listen to, record, monitor, acquire or receive the communications.
[22] Secondly, there is a controlling temporal aspect. There is only interception if the private communication is captured “while it is taking place or while it is in transit”.
[23] Finally, and, counsel submitted, most significantly, the temporal criterion was tightened during the legislative process.
[24] It was initially proposed, in Supplementary Order Paper 2000 No 85, that the interception of communication extends to:
… any time during the period beginning with the time the communication is sent and ending at the time that the intended recipient is able to have access to it.
[25] Subsequently the Law and Order Committee recommended that the definition of “intercept” be clarified as it was concerned that “confusion may result from the way that the term ‘intercept’ has been defined”.
[26] There was a further refinement by Supplementary Order Paper 2001 No 193 and it is the combination of those two interventions which are reflected in the present law.
[27] Mr Downs submitted that it was clear that Parliament was concerned to reach a balance in respect of privacy expectations for communications which should attach to contemporaneous communications, but ex post facto discovery of emails, texts and documentary correspondence were not accorded that protection.
[28] The Crown also responded that the emphasis by Mr Hewson on the word “receive” was misplaced because on the evidence the operation of the network and the transmitting of text messages necessarily involved copying of messages as an essential part of the process. The section could not mean that the conversion from digital form to a readable text which only occurs when transmission is complete was an interception.
Discussion
The general position on text messages
[29] We are satisfied that the Crown’s position is correct. Some assumptions were made by the Court in Cox in the absence of evidence which were borne out when viewed in light of the evidence in this case. Gendall J had clear, precise and comprehensive evidence as to what actually occurs. His conclusion was on the basis of that testimony. We are satisfied that to treat what occurred as an interception would ignore the actual operation.
[30] A proper mechanism for retrieving the information is a search warrant under the Summary Proceedings Act. The obtaining of a search warrant addresses the privacy concerns which might otherwise be triggered if the police relied solely on the co-operation and consent of Vodafone as “owner” or custodian of the underlying electronic data. However, the admissible evidence is not obtained by an interception but by access to stored material which is then taken out of digital form so it can be read.
[31] Accordingly we are satisfied that Gendall J reached the only available decision on the evidence before him.
[32] For completeness, we note two associated issues.
The impact of s 8(1)(e) on the interpretation of intercept
[33] Mr Hewson argued that s 8(1)(e)(i) and (ii) of the Telecommunications (Interception Capability) Act allows a wider interpretation of “intercept” that includes acts of interception that occur soon after transmission is complete (despite the clear wording of the s 10 definition of intercept). We do not agree.
[34] Section 7 of the Telecommunications (Interception Capability) Act imposes a duty on network operators to ensure that the telecommunications network they provide has an interception capability. Section 8 outlines what it means to have interception capability. It provides:
8 When duty to have interception capability is complied with
(1) A public telecommunications network or a telecommunications service has an interception capability if every surveillance agency that is authorised under an interception warrant or any other lawful interception authority to intercept telecommunications or services on that network, or the network operator concerned, is able to—
(a)identify and intercept telecommunications without intercepting telecommunications that are not authorised to be intercepted under the warrant or authority; and
(b)obtain call associated data relating to telecommunications (other than telecommunications that are not authorised to be intercepted under the warrant or authority); and
(c)obtain call associated data and the content of telecommunications (other than telecommunications that are not authorised to be intercepted under the warrant or authority) in a format that is able to be used by the agency; and
(d)carry out the interception of telecommunications unobtrusively, without unduly interfering with any telecommunications, and in a manner that protects the privacy of telecommunications that are not authorised to be intercepted under the warrant or authority; and
(e)undertake the actions referred to in paragraphs (a) to (d) efficiently and effectively and,—
(i)if it is reasonably achievable, at the time of transmission of the telecommunication; or
(ii)if it is not reasonably achievable, as close as practicable to that time.
[35] The effect of s 8(1)(e)(ii) is that if the actions referred to in paragraphs (a) to (d) are able to be carried out as close as practicable to the time of transmission a network will be considered to have interception capability.
[36] The “actions” referred to s 8(1)(e) are those listed in paragraphs (a) to (d), namely:
(i) identify and intercept;
(ii) obtain call associated data; and
(iii) undertake interception unobtrusively
[37] These “actions” refer to either the manner in which interceptions are carried out or the scope of the information retrieved and not to the act of interception itself. For example s 8(1)(a). The directed action is to identify the correct private communication and to intercept only those communications.
[38] Section 8(1)(e) does not expand the concept of interception. Rather it provides mechanisms by which service providers can satisfy their interception capability obligations.
All texts are intercepted by Vodafone argument
[39] Mr Hewson submitted, in oral argument, that all text messages were intercepted by Vodafone as they were “recorded” when the three copies are made in the process of delivering the text message. He argued, therefore, that such evidence was inadmissible because of the operation of s 25 of the Misuse of Drugs Amendment Act. This does not stand analysis.
[40] Section 25(1) of the Misuse of Drugs Amendment Act 1978 provides:
25 Inadmissibility of evidence of private communications unlawfully intercepted
(1) Subject to subsections (2) to (4) of this section, where a private communication intercepted by means of an interception device otherwise than in pursuance of an interception warrant or emergency permit issued under this Act or of any authority conferred by or under any other enactment has come to the knowledge of a person as a direct or indirect result of that interception or its disclosure, no evidence [so acquired] of that communication, or of its substance, meaning, or purport, and no [other] evidence obtained as a direct or indirect result of the interception or disclosure of that communication, shall be given against any person, except in proceedings relating to the unlawful interception of a private communication by means of [an interception device] or the unlawful disclosure of a private communication unlawfully intercepted in that manner. (emphasis added)
[41] Even if the actions by Vodafone could constitute an interception (which in our view they cannot) they would be permitted by s 216B(5) of the Crimes Act 1961 which provides:
(5) Subsection (1) does not apply to the interception of private communications by any interception device operated by a person engaged in providing an Internet or other communication service to the public if—
(a)the interception is carried out by an employee of the person providing that Internet or other communication service to the public in the course of that person's duties; and
(b)the interception is carried out for the purpose of maintaining that Internet or other communication service; and
(c)the interception is necessary for the purpose of maintaining the Internet or other communication service; and
(d)the interception is only used for the purpose of maintaining the Internet or other communication service.
[42] This provision ensures that the interception of private communication by a device operated by a person engaged in providing the communication service (ie it is a necessary part of the texting process) is not unlawful. Accordingly the actions of Vodafone cannot be covered by s 25 of the Misuse of Drugs Amendment Act.
Result
[43] Leave to appeal is granted, but the appeal is dismissed.
Solicitors:
Hewson & Co, Wellington, for Appellant
Crown Law Office, Wellington