The Queen v Taui - [2007] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND
CA437/06
[2007] NZCA 233
THE 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…

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 The Queen v Taui

Details

AGLC: The Queen v Taui [2007] NZCA 233
Case: [2007] NZCA 233
Decision Date: 11 June 2007

CaseChat Overview and Summary

In the case of The Queen v Robert Jason Taui, the Court of Appeal of New Zealand considered an application for leave to appeal a pre-trial ruling concerning the admissibility of text messages obtained by the police. The central legal issues were whether the text messages constituted an "intercept" under the Misuse of Drugs Amendment Act 1978 and whether the decision in R v Cox remained applicable post-statutory amendment. The Court found that the obtaining of text messages by the police was not an interception under the relevant statutes, as it occurred after the communication was complete and the messages were already stored in digital form by the telecommunications company. This conclusion was based on the evidence provided, which detailed the process by which text messages are transmitted and stored. The Court dismissed the appeal, holding that the admissibility of the text messages did not require an interception warrant. The Court of Appeal granted leave to appeal but dismissed the appeal, affirming the High Court's decision.

Orders