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Court of Appeal of New Zealand |
Last Updated: 30 December 2018
ORDER PROHIBITING PUBLICATION OF NAMES OR PARTICULARS IDENTIFYING APPELLANTS UNTIL CONCLUSION OF TRIAL
IN THE COURT OF APPEAL OF NEW ZEALAND
CA184/04 CA190/04 CA194/04 CA195/04
THE QUEEN
v
[D J C]
[A C R]
[T M A]
[N C B]
Hearing: 30 June, 1 and 2 July Coram: Anderson P
McGrath J William Young J
Appearances: R B Squire QC and S Antunovic for Appellants C and A
S N Hewson for Appellant R
R J Stevens for Appellant B
C L Mander for Crown
Judgment: 30 July 2004
Reasons: 5 August 2004
REASONS (DELIVERED BY WILLIAM YOUNG J) FOR JUDGMENT OF THE COURT
[1] This case arises out of what the police have termed “Operation Monster” which has focused largely on suspected methamphetamine dealing activities. A
R V C And Ors CA CA184/04 [30 July 2004]
number of trials are planned. The various defendants have challenged the admissibility of much of the evidence against them. This resulted in applications under s 344A of the Crimes Act 1961 which were resolved by Miller J substantially in favour of the Crown in a ruling which he delivered on 11 May 2004.
[2] On 29 July 2004 we granted the appellants leave to appeal against that ruling but dismissed the appeals saying that we would give our reasons later. We now provide our reasons.
Overview
[3] The primary issue raised by the case relates to the lawfulness of the mechanisms by which the police obtained access to text message communications involving the defendants. With effect from 1 October 2003, there is now a statutory scheme which addresses specifically the interception of text communications; see Parts 9A and 11A of the Crimes Act 1961 and the provisions in the Misuse of Drugs Amendment Act 1978 which correspond to Part 11A of the Crimes Act. In effect, the interception of text communications is put on the same footing as the interception of other telephone communications. The present appeals, however, fall to be determined under the former law, that is the law as it was prior to 1 October 2003.
[4] Because of the timing of the events which are in issue in this case, it is not necessary for us to address in detail the new statutory scheme. We note in passing, however, that the new legislation may not be entirely happily worded in relation to its application to text communications. This is because it is by no means clear to us that the processes which are involved when the police obtain access to text communications necessarily involves their “interception” for the purposes of the statutory scheme. We will explain this comment later in these reasons when we come to discuss the processes in a little more detail.
[5] The other questions which we must address in these reasons are as to the validity of interception warrants and the admissibility of the results of searches of property associated with the appellants [N B] and [D C] conducted pursuant to search warrants issued under the Summary Proceedings Act 1957. We
note that admissibility challenges associated with the application of the co-conspirators’ rule were, in the end, not pursued.
The text communications
[6] The case concerns text communications which were transmitted on the Vodafone network.
[7] Vodafone maintains electronic records of text communications for up to 32 hours. To be more specific, at midnight on any given day, electronic records of text messages transmitted prior to 4.00pm that day and after 4.00pm the previous day are routinely deleted. This deletion process can be aborted by what is known as “pre-loading”. Where electronic text messages involving a particular telephone are to be retained, the number is “pre-loaded”. This results in electronic information as to all texts to and from that number being automatically transferred each day into a separate database where it can be stored indefinitely.
[8] The technical evidence in the High Court was at a reasonably general level. It did not make it clear how and why the electronic information as to the content of text communications is produced. It is perhaps likely, although not certain, that the generation of this information is part and parcel of the transmission process, as for instance in queuing data from a sender for retransmission to a receiver. The evidence also did not make clear why the information is retained for up to 32 hours. There are a number of possible reasons for this retention and there is no point in us speculating about it.
[9] To explain the comment made in para [4] as to the new scheme, we note that “pre-loading” does not seem to us necessarily to involve interception either in the ordinary sense of that word or within the extended definition in the relevant Crimes Act and Misuse of Drugs Amendment Act provisions to which we have referred. Nor is it obviously the case that the set up of the Vodafone system so as to
generate and preserve electronic information as to text communications amounts to the interception of those communications.
[10] For the purposes of this case, the new legislative scheme is irrelevant and we need say no more about it. It is sufficient for present purposes simply to note that the system operated by Vodafone provides an opportunity for the preservation of information which records the detail of text communications - information that the police understandably will sometimes want to access.
What actually happened
[11] On 23 August 2002, Sergeant Warwick McKee (then a detective attached to the Wellington regional organised crime unit) approached Vodafone indicating that the police would be seeking call data and text messages in relation to a number of Vodafone numbers. He spoke to Ms Karen Brummel. He was told that Vodafone would supply past call data and text messages in response to a search warrant and that future call data and text messages would be provided pursuant to a call data warrant. Further, in the case of a specific police operation (as Operation Monster was), Vodafone was prepared to pre-load numbers against police advice that a search warrant under s 198 of the Summary Proceedings Act would be obtained.
[12] The evidence indicates that Ms Brummel’s advice to Sergeant McKee was in accordance with a policy which Vodafone had adopted. Ms Brummel gave evidence in the High Court but her role in relation to the policy was simply one of implementation and she does not appear to have been privy to the reasons which led to its adoption.
[13] In accordance with what he was told by Ms Brummel, Sergeant McKee faxed through to her a request that Vodafone pre-load five numbers (one of which was used by the appellant [N B]). This request was complied with on the understanding that a search warrant would be applied for. From that point on, Vodafone periodically emailed Excel files containing the relevant information to the police. The first supply of information to the police occurred on 29 August. This
was before the police had obtained a warrant. The Judge held that it had not been established that there had been a pre-arrangement between Sergeant McKee and Ms Brummel that this information be supplied before the warrant was obtained.
[14] The next batch of records was supplied on 2 September, by which point Sergeant McKee had obtained a search warrant which he had made available to Vodafone.
[15] This warrant authorised a search of Vodafone’s head office for “subscriber, inward and outward call and text message details” and covered the period 23 August to 2 September 2002. There are particular complaints about the affidavit in support and the terms of the warrant which we will discuss shortly.
[16] On 3 September Sergeant McKee applied for and obtained a call data warrant covering the same telephone numbers. This warrant applied for the period 2 September 2002 to 1 October 2002. Pursuant to this warrant and replacement warrants Vodafone, supplied the police with call associated data as to text messages associated with the relevant numbers up until 19 December 2002. Vodafone also supplied the content of these text messages to the police.
[17] During this time the appellant [T A] became a target of Operation Monster. The police made a pre-loading request of Vodafone in relation to his telephone on 20 September 2002. This was followed up by a search warrant on 1 October and a call-data warrant on 2 October. When a new telephone number came to be associated with him, there were further search and call data warrants obtained on 22 and 29 October in relation to that number.
[18] A similar process was followed with respect to the appellant [D C] when he became a target of Operation Monster. A pre-loading request was made in respect of him on 7 December 2002 and search warrants and call data warrants were obtained on 13 December.
Does the Telecommunications Act 2001 preclude the disclosure of information as to text communications?
[19] The primary argument for the appellants was that the dissemination of information relating to text communications was prohibited by ss 114 and 115 of the Telecommunications Act 2001. They maintain that these provisions provided an absolute bar on Vodafone giving the relevant information to the police and indeed would even prohibit Vodafone employees providing that information in the course of evidence in the High Court under subpoena.
[20] At the relevant time, ss 114 and 115 of the Telecommunications Act 2001 provided:
114 Interception of telecommunications for authorised purposes
Any employee of a network operator or of any person who is eligible under section 103 to be declared to be a network operator may, when acting in the course of, and for the purposes of, his or her duty, intercept any telecommunications by means of a listening device or any other device for the purposes of maintaining telecommunication services
115 Offence to use or disclose certain information for unauthorised purposes
(1) Every person commits an offence who uses or discloses information obtained under section 114 for a purpose that is not authorised by that section.
(2) Every person who commits an offence against subsection (1) is liable, on summary conviction,—
(a) in the case of an individual, to a fine not exceeding $2,000:
(b) in the case of a body corporate, to a fine not exceeding $5,000
[21] The appellants argument rests on the assumptions that:
[22] In the judgment under appeal Miller J accepted the first of these assumptions but rejected the second.
[23] We agree with Miller J on the second point. We think that s 114 was intended to provide an exception to the offence created by s 216B(1) of the Crimes Act 1961. Prior to the October 2003 amendments, that subsection provided:
216B Prohibition on use of listening devices
Subject to subsections (2) and (3) of this section, every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of a listening device.
[24] This prohibition was subject to an exception in relation to actions taken pursuant to and in accordance with Part 1 of the Telecommunications Act 1987 (which is where the predecessor to s 114 of the 2001 Act was to be found). Given the carefully crafted prohibition in s 216B of the Crimes Act, there is no reason to attribute to the legislature the clumsy intention of imposing a prohibition by implication in ss 114 and 115 of the Telecommunications Act.
[25] So, prior to October 2003, the only relevant prohibition on the interception of telecommunications was provided for by s 216B of the Crimes Act. That prohibition, however, did not apply to the collection of text messages (or recreating them from their electronic traces) as the expression “private communication” was then defined so as to apply only to oral communications. As well, and to revert to a point which we have already made in relation to the new provisions, the pre-loading and associated processes would not appear to amount to an interception for the purposes of that section.
[26] The only real difficulty with this aspect of the case is that the actions prohibited by s 216B of the Crimes Act are, in a sense, narrower than the actions which are exempted from that prohibition under s 114 of the Telecommunications Act. Nonetheless, we are satisfied that an interception of a telecommunication not rendered illegal under s 216B, is not implicitly prohibited under ss 114 and 115. We think that this approach is reinforced by the absence in the Telecommunications Act of an offence of intercepting a telecommunication otherwise than in accordance with
s 114. Further, if there is such an implied prohibition, as suggested by counsel for the appellants, it is surprisingly broad as it would cover interception and disclosure of a communication even if it was consented to by the parties to that communication.
[27] As is probably apparent from what we have already said in paras [9] and [25] above, we do not see the first set of assumptions referred to in para [21] as correct.
[28] In saying this we recognise that the word “intercept” is not defined by the Telecommunications Act 2001 (as it is in the Crimes Act and the Misuse of Drugs Amendment Act 1978) so that the point to which we are now referring is not precisely the same as that made in para [9].
[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. So, on that basis, we are of the opinion that the pre-loading process (which merely prevents deletion of already generated electronic data) is not an interception. As well, we do not see the design of the Vodafone system so as to generate electronic information as to text communications as being within s 114. This section addresses the actions of specific employees who use devices extraneous to the normal configuration of the network to intercept communications. We do not see this section as applicable to a network operator whose system leaves electronic traces from which the content of communications can later be reconstructed.
[30] For the reasons just given, we reject an alternative argument advanced by the appellants in the course of the hearing before us to the effect that the recording of the text messages represented an interception of the relevant communications which was within s 114 but that subsequent disclosure of these messages to the police was in breach of s 115.
[31] The appellants’ arguments were unattractive on policy grounds. In relation to s 216B of the Crimes Act, both as originally enacted and as amended in 2003, the introduction of prohibitions on interception have been accompanied by specific provisions permitting interception in appropriate cases and subject to appropriate safeguards. In the absence of specific empowering legislation permitted access by police to texting records, we are reluctant to find in the legislation an implied prohibition on police or court access to text records.
Are there any other legal restrictions on the rights of Vodafone and/or the police regarding the collection and release to the police of electronic data as to text communications?
[32] This point was not developed in great detail in argument but it does seem to us to be of relevance to the issues which we must discuss. We have considered, albeit at a general level whether the actions of the police and Vodafone involve breaches of:-
[33] At least at a general level, we are prepared to accept that those who use texting transmission facilities provided by a network operator would expect that network operator to maintain confidentiality in relation to those communications. But, it is trite that there is no confidence in iniquity and it is difficult to see how the present appellants could claim that any implied obligations of confidentiality have been breached in relation to communications which appear to have occurred in the context of drug dealing activities. In this regard we refer to R v Harris CA208/99, 6 October 1999. That case concerned broadly similar issues in relation to a bank and this Court observed:
[10] There is no dispute that banks owe a general obligation of confidentiality to their customers. There is also no dispute that that obligation is subject to limits, according to one long established authority
(a) where disclosure is under compulsion of law, (b) where there is a duty to the public to disclose, (c) where the interests of the bank require disclosure and (d) where the disclosure is with the customer's consent (Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, 473 CA, Bankes LJ; see also Scrutton LJ at 481 and Atkin LJ at 486 recognising that disclosure may occur to protect the public against fraud or crime); see similarly W M Wilson QC Banking, para 27, Laws of New Zealand. In some general formulations, the claims based on obligations of confidence are seen as limited by the public interest or as being subject to a defence of just cause or excuse. There is also the principle stated nearly 150 years ago, that there is no confidence preventing the disclosure of iniquity (Gartside v Outram (1856) 26 LJ Ch 113, 114). It is significant that in the present case the bank accounts themselves were the vehicles for the offending – namely money laundering. Even in the absence of legislation there would be a power and perhaps even a duty to consider and respond to police questions about that. Such a public interest for the protection of the public against crime overriding or limiting obligations of confidence or of privacy is also to be found in the Privacy Act 1993 s6 (principle 11(e)); note that the principle does not confer a legal right enforceable in a court of law; s 11(2). A further relevant point is that any obligation of confidence owed by the institution to its customers is not in general owed by third parties. The police, for instance, remain free to seek relevant information from banks at least in the absence of reason to believe that the disclosure would be unlawful. Indeed, as the facts of this case (reviewed in the next part of the judgment) show, in the absence of such inquiries and of informative responses to them, they may be prevented from establishing a sufficient basis to obtain a search warrant.
[34] Broadly similar considerations apply in relation to the Privacy Act. Principles 10 and 11 of the information privacy principles provided for under s 6 of the Privacy Act might be thought to be inconsistent with texting information being collected and provided to the police. However, they are subject to exceptions associated with the detection and investigation of offences and in any event do not confer legally enforceable rights.
[35] We recognise that what we have just said might involve, to some extent anyway, looking at the issue in an after-the-event fashion and justifying the actions of the police and Vodafone by their results. We say to “some extent” because in fact the police did have a reasonable basis for suspicion and belief in relation to the various appellants before they sought pre-loading, a point which we will discuss shortly. However, it is undeniable that there are privacy values which are involved generally in any situation in which the police obtain access to private communications. Further, a great many of the communications to which the police obtained access had no conceivable involvement with drug dealing. These
considerations supports the view that the whole situation should be seen as falling within the scope of s 21 of the New Zealand Bill of Rights Act 1990 which provides:
21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[36] In the High Court, Miller J acted on the basis that what happened involved a police search and seizure which, if unreasonable, was a breach of s 21. We are content to approach the case on the same basis.
[37] It is at least arguable - and for present purposes we are prepared to accept - that when Vodafone retained and later gave the relevant electronic information to the police, this involved a search and seizure of “correspondence”. The decision of this Court in R v Zutt (2001) 19 CRNZ 154 (which we will shortly discuss in more detail) certainly proceeds on the basis that obtaining the detail of text communications involves a search and seizure. This point is not, however, entirely free from doubt, as the decision in R v Wong-Tung (1995) 13 CRNZ 422 (CA) indicates.
[38] Assuming that what was involved was a search and seizure it is clear that there was sufficient police involvement and instigation to engage s 21 if the police actions were unreasonable, see R v Grayson and Taylor [1997] 1 NZLR 399 at 407.
[39] We will discuss shortly whether the police actions were unreasonable. But as a preliminary to that, it is appropriate to consider what, if any, statutory processes were available to the police to compel the production of the relevant information.
Was the interception warrant procedure available to the police
[40] The interception warrant procedure provided for under the Crimes Act and Misuse of Drugs Amendment Act could not be used to obtain texting information; this because, as those provisions permit only what would otherwise be prohibited under s 216B of the Crimes Act, they apply only to oral communications. As well, it is doubtful whether pre-loading and associated processes could be regarded as
amounting to an interception as that concept is defined for the purposes of this legislation.
Was the call-data warrant procedure available to the police
[41] This procedure is provided for by the Telecommunications (Residual Provisions) Act 1987. Sections 10A – 10C provide for the issue of warrants (known as call data warrants) which permit the police to obtain what is defined as “call associated data” associated with telecommunications. Call associated data includes dialling or signalling information that is generated as a result of the making of a telecommunication and identifies the origin, direction, destination or termination of the telecommunication. The phrase is, however, defined specifically so as to exclude the content of a telecommunication.
[42] It follows that a call data warrant permitted the collection of much information associated with text communications, but not their actual content.
Was the search warrant procedure available to the police?
[43] Section 198 of the Summary Proceedings Act provides:
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.
(2) Every search warrant shall be directed either to any constable by name or generally to every constable. Any search warrant may be executed by any constable.
(3) Every search warrant to search any building, aircraft, ship, carriage, vehicle, premises, or place shall authorise any constable at any time or times within one month from the date thereof to enter and search the building, aircraft, ship, carriage, vehicle, premises, or place with such assistants as may be necessary, and, if necessary, to use force for making entry, whether by breaking open doors or otherwise; and shall authorise any constable to break open any box or receptacle therein or thereon, by force if necessary.
(4) Every search warrant to search any box or receptacle shall authorise any constable to break open the box or receptacle, by force if necessary.
(5) Every search warrant shall authorise any constable to seize any thing referred to in subsection (1) of this section.
[44] This is language of very broad reach and would permit the seizure of material storing or recording electronic information as to texting communications; this because the police with an appropriately drafted warrant could, for example, seize whatever computers, computer componentry or electronic data storage devices containing the information sought to be obtained.
[45] A search warrant, however, is not well-suited to the obtaining of electronic information. The actual execution of a search warrant against the commercial hardware on which electronic information is stored, such as Vodafone’s systems, could have horrendous business implications. In the case of text communications, the search and seizure process practically requires the co-operation of the network operator to retain and not delete the information. Further, it would, in all probability be impossible for the police to gain access to the relevant information without a high level of co-operation from that operator or alternatively, a high level of disruption to the business of that network operator.
[46] We heard argument from Messrs Hewson and Stevens to the effect that the search warrant procedure is simply not available for the purposes of obtaining the content of text messages. They contended that the relevant electronic data is not “a thing”, what was contemplated and what happened as to execution of the warrants was not a search but rather an intercept and, in any event, was not carried out by a constable but rather by Vodafone. We reject these submissions.
[47] Badly suited though the search warrant procedure is to the “seizure” of electronic data, it is nonetheless clear that this procedure can be utilised to obtain texting information. That is the effect of this Court’s decision in R v Zutt (2001) 19 CRNZ 154. In that case, Vodafone had told the police that it would collect texting information if assured that the police had search warrants and then later made that information available to the police when the search warrants were executed. The search warrants were held in the High Court to have been invalid essentially because s 198 is expressed in the present tense and the search warrants were obtained with a view to obtaining on a prospective basis, text communications which were expected to occur (and did occur) after the warrants were obtained. This Court, however, nonetheless accepted that it would have been open the police to obtain search warrants, if necessary on a daily basis, and exercise those warrants in relation to texting information collected prior to their issue. This would of course have required the co-operation of Vodafone in terms of ensuring that such text messages were not automatically deleted. This was not seen by this Court as a reason for concluding that the search warrant procedure was not available.
[48] We refer also to the decision of Harrison J in R v Pue HC AK T030161, 5 December 2003. In that case the police had adopted a procedure of obtaining text communications broadly similar to what was involved in the present case (albeit there were some differences). The judgment of Harrison J suggests that in the middle of October 2002 (or perhaps shortly before that) the police involved in that case had become concerned as to the legality of obtaining text messages using call data warrants. Interestingly, the same concerns do not appear to have occurred to the police involved in Operation Monster, a point to which we will refer later. What is important about the judgment for present purposes is that Harrison J also took the approach that the search warrant procedure was available for the obtaining of the content of text messages although he recognised that this process could only work if Vodafone was prepared to co-operate by retaining the relevant information.
[49] It is a common-place of modern police practice that information stored electronically is provided in response to search warrants and by processes which necessarily involve a high level of co-operation by those to whom the warrants are addressed. We see no basis for concluding that such co-operation as occurs (and
indeed may be practically necessary) is inconsistent with the validity of the grant or execution of a search warrant. On this point it is sufficient to refer to R v Sanders [1994] 3 NZLR 450 (CA). Nor do we see anything in the argument that the electronic data is not “a thing”. It has a physical existence even if ephemeral and that in any event the computer componentry on which it was stored was undoubtedly “a thing”.
[50] As is apparent from what we have said earlier, we do not see the pre-loading process as being an interception of text communications. So we reject the argument that the process here involved interception rather than a search. Further, the concepts of interception and search are not necessarily inconsistent. A letter which is seized under search warrant in the course of post is both seized and intercepted.
The appellants’ specific complaints about the obtaining and execution of the 2 September 2002 search warrant.
[51] Mr Stevens challenged the warrant which was obtained on 2 September 2002.
[52] There were wrong dates in Sergeant McKee’s affidavit in support of the application for the warrant which were apparently a function of him “cutting and pasting” from his draft affidavit in support of the call data warrant. This was a point which Mr Stevens made much of but which we regard as a mere technicality and capable of resolution under s 204 of the Summary Proceedings Act if necessary.
[53] Mr Stevens had complaints about the paucity of evidence referred to in the affidavit. His submission in this respect was necessarily advanced in relation to the expurgated version of the affidavit which had been disclosed to him but is answered in parts of the affidavit which were treated as confidential but of course examined by this Court.
[54] Mr Stevens also complained that the affidavit referred to [N B] as being a man with convictions without referring to the age of the convictions and described him as a “well-known criminal”. He was also critical of the affidavit for
disclosing neither that the information sought had, in part, already been obtained (ie on 29 August) nor the arrangement between the police and Vodafone.
[55] Miller J saw nothing material in the complaints as to the age of the convictions or the reference to [N B]as a well known criminal and again we agree with him. He accepted that the affidavit should have referred to the material supplied on 29 August and to the arrangement with Vodafone but held that they were omitted simply because Sergeant McKee had not turned his mind to the appropriateness of making reference to them. On the basis of that finding, and given also the immateriality of the omissions (in that the information if supplied would not have detracted from the case for a warrant) we also see nothing in this aspect of the argument.
[56] Mr Hewson, in his submissions, complained that the search warrant was addressed to the head office of Vodafone when in fact the hardware on which the relevant electronic information was stored was elsewhere (albeit that the information could be accessed from Vodafone’s head office). We reject this argument. If a person to whom a warrant is addressed is aware that the relevant material is in his or her possession but located elsewhere provides that material voluntarily, that can hardly be seen as rendering the search warrant invalid or the obtaining of the material unreasonable.
Are the text messages obtained by the police admissible?
[57] We have already discussed and dismissed the primary arguments advanced by the defendants based on ss 114 and 115 of the Telecommunications Act 2001. We have also rejected the arguments advanced by Messrs Hewson and Stevens on behalf of their clients that the search warrant procedure was completely inapplicable to the obtaining of texting information and raising specific complaints about the 2 September 2002 search warrant.
[58] That seems to us to leave the admissibility of the test messages to be determined solely by reference to whether the actions of the police, in conjunction with Vodafone, constituted an unreasonable search and seizure.
[59] On the basis of what we have earlier held, the obtaining of the texting information was not in breach of any legal principle other than the arguable breach of s 21 New Zealand Bill of Rights Act. It is reasonably apparent from what we have said that although call data warrants and search warrants were of some application, neither was particularly well-suited to the obtaining of texting information. A call data warrant would not automatically give police access to the content of text messages and a search warrant would not, in terms, cover the actions of Vodafone, at the request of the police, preserving texting information for future seizure.
[60] Police searches which are not unlawful can, nonetheless be unreasonable as R v H [1994] 2 NZLR 143 (CA) indicates. There the police arranged for the employee of a fishing company to supply copies of company documents; this in relation to suspicions of corrupt behaviour. This activity occurred over 20 months. The actions of the employee of the company were not necessarily unlawful (as the obligations of confidence he owed to his employer were subject to the rule that there is no confidence in iniquity). It would, however, nonetheless have been open to the police to obtain search warrants. There was thus a failure to obtain a search warrant (or search warrants) and this was in circumstances where the procedure was open to the police and there were no practical reasons why it could not have been utilised. These considerations were the decisive factors in this Court holding that the materials supplied by the employee to the police were inadmissible as having been obtained pursuant to an unreasonable search and seizure.
[61] On the argument of the appellants, the following considerations point to the search and seizure being unreasonable:
[62] In the High Court Miller J approached the case in this way:
[63] On that basis he concluded that the search and seizure of the texting information was reasonable up until 2 September 2002. The same conclusion would apply presumably (although this is not spelt out in his ruling) to the other texting information obtained pursuant to search warrants.
[64] He regarded the use of the call data warrants to obtain texting information as a “serious breach of the Telecommunications (Residual Provisions) Act” but that the police acted reasonably given that they were in effect responding to the advice of
Vodafone, acted in good faith and could, if necessary, have obtained the information using search warrants. In reaching this conclusion he took into account the significance of the evidence to the Crown case.
[65] We agree with his conclusions.
[66] The starting point for our assessment of this question is that the ability of the police to obtain the relevant information by statutory processes was not entirely clear and also not without difficulty. We have not had the detail of the reasons which underpinned the approach Vodafone took to the supply of text communications to the police. If that advice proceeded on the basis that a call data warrant required the production of the content of text communications, then it was plainly wrong. It is, however, possible that the advice proceeded along another line of reasoning. The relevant information was in the possession of Vodafone. Vodafone, as a good corporate citizen, should co-operate with the police and assist the police with legitimate enquiries. In circumstances where the police obtain a call data warrant, Vodafone could fairly conclude that there was a legitimate basis for the police operation. This would therefore fairly alleviate confidentiality concerns which might otherwise have discouraged Vodafone from co-operating with the police.
[67] In those circumstances, the policy of Vodafone does not seem to us to have been necessarily quite as inappropriate as counsel suggested or as Miller J would appear to have concluded.
[68] Against that background, we do not see the case as being controlled by the decision in R v H. In the first place the information in question “belonged” to Vodafone which was co-operating with the search whereas, in R v H, the information prima facie belonged to the fishing company. Secondly, there were difficulties with the applicability of the search warrant procedure in this case – difficulties which were not present in R v H. Thirdly, the operation in the present case continued over a much shorter period of time.
[69] We are of the view that the process followed by the police was not unreasonable. Our specific reasons for these conclusions are as follows:
[70] As is apparent from what we have said, we have identified a number of factors which support the reasonableness of the police actions which are additional to those relied upon by Miller J. However, unlike Miller J we do not regard the significance of the evidence as relevant to the reasonableness of the police actions.
The interception warrants
[71] An interception warrant was obtained on 21 October 2002 and targeted the appellants [N B]and [T A] and another person. This warrant was later renewed. The Crown wishes to adduce evidence of intercepted communications, the admissibility of which has been challenged by the appellants.
[72] In obtaining the warrant the police certainly relied on the text messages which had been obtained from Vodafone. It was this factor which led to the
challenge by the appellants to the interception warrant; this on the basis that if the interception warrant had been obtained using tainted text messages, evidence of the communications which were intercepted ought to be excluded.
[73] The police did not rely heavily on the text messages obtained up to 2 September but rather on those which were subsequently obtained under the call data warrants. In the High Court, therefore, Miller J approached the question of the validity of the interception warrant on the basis that the text messages which were relied on (ie the post-2 September messages) “ought to be excluded”. He took the view that there was sufficient evidence advanced in support of the interception warrant application to justify the warrant which was issued, a conclusion he reached by reference to informant information to which the defendants’ counsel had not had access.
[74] Mr Squire, who argued this aspect of the case for the appellants, was at a disadvantage in that he did not have access to the full version of the affidavit which was relied on in support of the interception warrant application. He did, however, seek to amplify the argument by contending that if the text message information was deleted from the affidavit, there must necessarily have been insufficient information before the Judge who issued the warrant to be satisfied that the requirements of s 15(1)(c) of the Misuse of Drugs Amendment Act 1978 had been met.
[75] Given our conclusions as to the text messages, the premise which underpins the appellants’ arguments has not been made out. We consider that the text messages were lawfully obtained and that there was no unreasonable search and seizure.
Search of [N B’s] car on 11 December 2002
[76] Search warrants authorising the search of [N B’s] car was issued on
24 October 2002 and 21 November 2002. His car was searched on 11 December 2002 and, in the course of this search, the police found a large number of capsules of cannabis oil.
[77] Mr Stevens for [N B] challenged both the warrants and the subsequent search. His grounds for challenging the warrants largely involved the reiteration of the complaints about the obtaining of text messages and their subsequent use for the purposes of obtaining warrants. For reasons already given, we reject that line of argument.
[78] He also complained that the warrant was executed against the car because of conversations intercepted prior to the execution of the warrant. In his written submissions Mr Stevens claimed that:
The warrant was not, therefore, executed for the purposes for which it was issued, namely to provide evidence for the commission of the offences of manufacturing and possession of methamphetamine.
[79] This point was not taken in the High Court. It arises out of the fact that the search of the car resulted in cannabis oil rather than methamphetamine being located. On the material we have been shown, there is no reason to assume that the police expected to find cannabis oil as opposed to methamphetamine on the search of the car.
Challenges to the searches made on 29 April 2003 of the home and work premises of [D C]
[80] On 29 April 2003, the police searched the home and work premises of [D C]. They found material which assists the Crown case. These searches were pursuant to a search warrant which was obtained the preceding day. All of this occurred in the termination phase of Operation Monster.
[81] A number of search warrants were sought and a compendious affidavit was provided by Sergeant McKee. In this affidavit, he asserted a belief that the proposed searches would obtain evidence of offending against the Misuse of Drugs Act. He was not specific as to the particular evidence which he believed might be located at the premises identified in the affidavit.
[82] The warrants as granted had attached to them appendices which specified “things” which were believed to be on the premises in respect of which the warrant
was granted. These included the Class B controlled drug methamphetamine, the Class C controlled drug cannabis and cellular telephones. These appendices were in standard format and were the same for all the warrants which were issued. Associated with the application which was made were draft warrants and appendices.
[83] The admissibility of what was found pursuant to the execution of the search warrants on the home and business premises of [D C] was challenged both in the High Court and this Court on the same grounds:
[84] These submissions were rejected in the High Court. Miller J took the view that the Deputy Registrar who issued the warrant was entitled to have regard to the form of the draft warrant. On his approach, what the police expected to find was plain from the draft warrants and those items were consistent with the affidavit.
[85] We agree with Miller J.
[86] A broadly similar issue arose in R v Blackmore CA290/95, 25 October 1995. There a warrant had been obtained in relation to suspected offences of cultivation and possession of cannabis. The warrant did not nominate any “things” which were believed to be present on the premises and this led to a challenge to the validity of the warrant. This Court’s response was in these terms:
It will be seen that the form of the warrant failed to nominate any "things" which were believed to be present on the premises. It was submitted that because of that omission the warrant was a nullity. The short issue is whether the omission is a defect of such seriousness that it deprives the warrant of legal effect. The purpose of particularising the scope of the warrant is to ensure the executing officer operates within the authority of the warrant, and it is also to enable the owner or occupier of the premises to understand its purposes and limits and possibly to take legal advice as to his or her rights and obligations. This warrant makes it clear that the suspected
offences which were being investigated were cultivation of cannabis and possession of cannabis.
Although the omission in question is to be decried, it is necessary to consider whether there was a reasonable risk that the bounds of the warrant may not have been readily understood by the participants. It is clear that the warrant is directed and directed only to "things" relating to the cultivation or possession of cannabis. It is difficult to see how the addition of further particulars could have had any material effect on the knowledge or understanding of either the police officer or the appellant. It would have been possible to designate, for example, cannabis plants, cannabis seeds, cultivation equipment, fertiliser, storage containers and so on. The warrant could also properly have included some general description to cover all things associated with the cultivation of cannabis. These or similar particulars undoubtedly should have been spelled out but in the particular circumstances of this case there can be no cause for concern that there was a possibility that the intended bounds of the warrant were or may have been misunderstood. No such claim was made by the applicant and beyond question the items seized were within the obvious framework of the warrant despite its omissions. The defect is not so radical as to require the warrant to be treated as a nullity. As was said in Rural Timber Limited v Hughes [1988] NZCA 238; [1989] 3 NZLR 178 at p 184:
"Nullity is a question of degree, answerable only by trying to apply a commonsense judgment against the statutory background."
We stress that it is only the specific nature of these offences, clearly stated, which saves this particular warrant. Omissions of this nature may well in other circumstances have a vitiating consequence. In our view the Judge was justified in his finding that he was not satisfied that there was a miscarriage of justice resulting from the omission and that accordingly s 204 of the Summary Proceedings Act 1957 could be invoked to uphold the warrant and consequently the validity of the seizures under it. ...
[87] In the present case there was ample evidence to support the view that the appellant [D C] had been dealing in methamphetamine and had been using his work address for these purposes. He had also been using a Ford Falcon utility motor vehicle which was customarily at his place of residence. Implicated in the offending was his cell phone. The question for the issuing Deputy Registrar was whether there were reasonable grounds to believe that there were things present at or in the home and work addresses of [D C] which would be evidence of the commission of offences under the Misuse of Drugs Act. There was no need for Sergeant McKee to express an opinion as to what was in substance the ultimate issue for the issuing Deputy Registrar, see R v Sanders [1994] 3 NZLR 450 (CA) at 460. The items listed in the appendix to the search warrant are the sort of items one would expect to be associated with methamphetamine and cannabis dealing. Further, there was specific evidence related to the use of a cell phone. That cell phone and, in
particular, the address book or call information it contained along perhaps with saved texts could obviously be evidence of offending.
[88] There is one other minor issue which arises in relation to the searches of 29 April. Amongst the material found at the search of [D C]’s work premises were pre-cursor materials. Mr Squire argued to us, as he did to Miller J, that the evidence of the finding of the pre-cursor material ought to be excluded because of its prejudicial effect exceeded its probative value. The offences alleged against [D C] by the Crown did not included manufacturing methamphetamine. Miller J rejected this argument.
[89] We agree with Miller J. In a situation where it is alleged by the Crown that [D C] was involved in conspiracies to supply, and the supply of methamphetamine to others, seems to us to be logically probative of that charge to show that he was in possession of material which is recognised as being a pre-cursor to methamphetamine and we see no substantial scope for illegitimate prejudice.
Conclusion
[90] Those are the reasons why we dismissed the appeals.
Solicitors:
P S Coles, Palmerston North for Appellants C and A Hewson & Co, Wellington for Appellant R
Fanselows, Wellington for Appellant B
Crown Solicitor, Wellington
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