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Part I Interception warrants

INTRODUCTION

1 PROVISION IN NEW ZEALAND law for a warrant to issue to a member of the police to intercept (a term that includes “hear, listen to, record, monitor or acquire”) a private communication was first made by the Misuse of Drugs Amendment Act 1978. One purpose of that statute as expressed by its long title was “to facilitate the detection of certain drug dealing offences” and the power to issue an interception warrant was confined to cases where such an offence was suspected. Because such a warrant constitutes a substantial invasion of privacy, the new power was carefully hedged around with safeguards. One safeguard was a provision in section 26 that no evidence of an intercepted communication relating to other than such a drug dealing offence was admissible in evidence.

2 Civil libertarians who oppose increased police powers on thin-end-of-the-wedge or slippery-slope grounds can point to the history of interception warrants as demonstrating that their fears are not groundless. The Crimes Amendment Act (No 2) 1987 inserted Part XIA into the Crimes Act 1961. This Part was modelled on the corresponding provisions in the Misuse of Drugs Amendment Act 1978. The power conferred by Part XIA was to issue an interception warrant where plotting by members of an “organised criminal enterprise” was suspected. An organised criminal enterprise is “a continuing association of three or more persons having as its object or as one of its objects the acquisition of substantial income or assets by means of a continuing course of criminal conduct”. There was a provision (section 312M) in terms not identical to, but having the same general purpose as, the Misuse of Drugs Amendment Act 1978 section 26.

3 The Misuse of Drugs Amendment Act 1978 was extended to dealing in cannabis on a substantial scale by the Misuse of Drugs Amendment Act (No 2) 1997. Part XIA of the Crimes Act 1961 was extended by the Crimes Amendment Act (No 2) 1997 to suspected serious violent offences and, in respect of such offences, was widened to include as a ground for the issue of a warrant the belief that such an offence might be prevented.

4 Included on its introduction in Part XIA of the Crimes Act was section 312N subsection (2) which (as amended following the 1997 insertion of the reference to a prescribed cannabis offence in the Misuse of Drugs legislation referred to above) provides an exception to the general prohibition of the use of information about other offences fortuitously obtained in the course of excising interception warrant powers. The subsection reads as follows:

(2) If, in any proceedings for a drug dealing offence [or a prescribed cannabis offence (as those terms are defined in section 10 of the Misuse of Drugs Amendment Act 1978)],—

(a) Evidence is sought to be adduced of a private communication intercepted in pursuance of an interception warrant or an emergency permit issued under this Part of this Act; and

(b) The Judge is satisfied, on the evidence then before the Judge,—

(i) That a warrant or permit could have been issued under Part 2 of the Misuse of Drugs Amendment Act 1978; and

(ii) That the evidence sought to be adduced would have been admissible if the warrant or permit had been issued under that Part of that Act,—

the evidence may be admitted notwithstanding subsection (1) of this section.

At the same time as the enactment of Part XIA, a provision corresponding to section 312N(2) was inserted into section 26 of the Misuse of Drugs Amendment Act 1978, subsection (2) of which (as amended following the 1997 insertion of the reference to serious violent offences in Part XIA) reads as follows:

(2) If, in any proceedings for [a specified offence or a serious violent offence (as those terms are defined in section 312A of the Crimes Act 1961)] or a conspiracy to commit such an offence,—

(a) Evidence is sought to be adduced of a private communication intercepted in pursuance of an interception warrant or an emergency permit issued under this Part of this Act; and

(b) The Judge is satisfied, on the evidence then before the Judge,—

(i) That a warrant or permit could have been issued under Part 11A of the Crimes Act 1961; and

(ii) That the evidence sought to be adduced would have been admissible if the warrant or permit had been issued under that Part of that Act,—

the evidence may be admitted notwithstanding subsection (1) of this section.

5 In R v Saunders-Francis [1991] 1 NZLR 513 Richardson J for the Court of Appeal identified the intention of the legislature in enacting the provisions referred to in the previous paragraph in these terms:

The legislation recognises that, although there are separate and parallel provisions for the issue of interception warrants and the use of material obtained under warrants, they are serving the same broad ends; they are subject to essentially the same stringent procedures and control; and they cannot sensibly be considered in isolation one from the other where evidence becomes available under one warrant which is relevant to offending to which the other statute is directed.
In this regard it is significant that at the same time that Part XIA was introduced into the Crimes Act, a provision corresponding to s 312N(2) was enacted as s 26(2) of the Misuse of Drugs Amendment Act 1978. The legislature has demonstrated in the clearest terms that its intention is to allow evidence obtained under interception warrants disclosing serious crime of the kind outlined in s 312B(1) of the Crimes Act on the one hand, and drug-dealing offences under s 10 of the Misuse of Drugs Amendment Act on the other, to be admissible in proceedings when the interception warrant was obtained under the other Act. That crossover is carefully controlled and limited. The test that is applied to the use of such evidence in drug-dealing proceedings is whether a drug warrant could have been issued, and if so, whether that evidence would have been admissible under the misuse of Drugs Amendment Act.

This statement was adopted by the Court of Appeal in R v Aranui (1999) 16 CRNZ 304, 308.

6 R v Aranui demonstrates the limits to the statutory mechanism. The accused was arrested and charged with serious violent offences and eventually released on bail. While on bail, the accused was overheard making statements in relation to those offences, his conversation being intercepted pursuant to a Misuse of Drugs Act warrant authorising interception of conversations at a named address. The accused was not named either in the warrant or in the papers placed before the judge issuing the warrant. At the time of obtaining the warrant the police had no information as to the accused’s connection with the address. The Court said:

The crossover philosophy is to allow evidence obtained under one Act to be viewed as if it had been obtained under the second Act, but only if it could have been obtained under the latter. (Page 310.)

The Court held that a Crimes Act warrant could not have been obtained for two reasons.

7 One difficulty related to the words “successful conclusion” in section 312CB(1)(c) that lists the matters of which the issuing Judge must be satisfied as including the following:

(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, as the case may be, to provide assistance in preventing the commission of a serious violent offence; or

(ii) Other investigative procedures and techniques are unlikely to facilitate the successful conclusion of the Police investigation of the case or, as the case may be, prevent the commission of a serious violent offence, 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.

Here, the accused had been arrested and charged, and the Court said:

In the context of the legislation, which is directed to enabling the police to obtain information, not otherwise available, by intercepting private communications, the phrase “successful conclusion of the police investigation” must be given a purposive meaning. The obvious intention is to allow such evidence to be obtained on a strictly controlled basis where ordinary methods have been unsuccessful in yielding sufficient evidence to warrant prosecution. It seems to us to be implicit in this provision that the police must be in a position where further evidence is required in order to establish a suspect’s complicity in criminal activity. It is not directed to obtaining further evidence after the subject has been arrested and charged.
If the police are not in possession of information which is likely to result in a successful conclusion of an investigation, a charge cannot be warranted. Conversely, if a charge is warranted, then the need for further evidence by this exceptional means to enable a conviction to be sought should have disappeared. If this desirable weapon in the armoury of the police is to be used as a means of gathering additional information once a suspect has on proper grounds been arrested and charged, then clear words are required. The indications are all to the contrary.
In the present case there could have been no question of the police obtaining a warrant prior to the applicant’s arrest. He was nominated by a co-offender as a participant, and within a short time interviewed and arrested. Once he had been arrested and charged, we are unable to see how a Judge could certify being satisfied that the admissible evidence then available to the police had not helped, or was unlikely to help, bring the investigation to a successful conclusion. The use of the word “facilitate” is significant. It does not equate, for example, “ensure”. The New Shorter Oxford gives a meaning of “make easy or easier, promote, help forward”. The dual contentions of the police that a successful conclusion had not [been] or was unlikely to be reached, and that there was sufficient evidence available to place the suspect on trial, are inconsistent. This special legislation is not designed to allow an existing prosecution to be strengthened. (Page 309.)

8 The second difficulty in the way of admissibility was that section 312D(1)(b)(ii) would, in the circumstances, have required the suspect to have been named and his address given in the warrant, or the premises specified. The police had, at the relevant time, no information justifying obtaining a Crimes Act warrant complying with these requirements because, before the chance interception of accused’s statements, the police lacked the information to connect him to the premises or what was there occurring.

9 The precise matter on which we have been asked to advise has been identified by the Ministry of Justice in these terms:

Legislative amendments to correct the anomaly identified by the Court of Appeal in R v Aranui (1999) 16 CRNZ 304, relating to the use of evidence of offending obtained under an interception warrant.

10 There were, as already noted, two matters decided in Aranui. The first point, although in Aranui it arose in a cross-over case, is not confined to cross-over situations. The issue (which is purely one of policy) is whether it should be lawful to obtain evidence by way of an interception warrant in order to clinch the case against a person already arrested and charged with a relevant offence. R v Aranui was a serious violent offence case to which Crimes Act section 312CB(1)(c) applies, but Crimes Act 1961 section 312B(e) (organised criminal enterprises) and Misuse of Drugs Amendment Act 1978 section 15(c) are sufficiently alike in their terms for it to be clear that, if Aranui was correctly decided, an interception warrant may not be granted to enable the obtaining of evidence to strengthen the case against a person already charged. It is not in the least unusual, particularly in serious cases, for police investigations to continue for this purpose well after a defendant is arrested and charged.

11 On this policy point, there is exalted authority for viewing with disfavour those who “strain at a gnat, and swallow a camel” (Matthew 23:24). It is more than a little odd to regard certain circumstances as so grave that the invasive investigation method of interception should be available up to the stage of arresting and charging a suspect, but to withhold availability of the method for the purposes of trying to ensure that a sufficiently strong case is made against a party charged. It would still be necessary to satisfy the “last resort” jurisdictional requirements and no doubt, in practice, this will be particularly difficult when an offender has been identified and charged, but even so the legislation should leave the possibility open.

12 This is essentially the view that had been arrived at by the Court of Appeal in R v Aitken [1988] 1 NZLR 252, 255 where the Court observed that:

Section 15(c) refers to other investigatory procedures and techniques being unlikely to facilitate the successful conclusion of the Police investigation of the case. To give the statute a reasonable and workable interpretation, that must be held to extend to enabling the police to carry their investigation of a case as a whole, involving the activities of a drug ring, to a successful conclusion in the sense that the maximum available evidence in support of a Crown case against all involved in the ring has been obtained.

That approach was endorsed by the Court of Appeal in R v Honan [1991] 7 CRNZ 473, 478. Neither of these authorities were cited in Aranui. R v Aranui was overruled on this point by R v Bouwer [2002] 1 NZLR 105 where the Court of Appeal said:

It seems to us that there is no necessary inconsistency between the belief of the police that they have enough evidence to justify charging someone with a crime and their considering that they still have not successfully concluded their investigation. They may well feel that they can establish a prima facie case, but also think that it is not especially strong and that there are aspects which can be strengthened if certain lines of investigation are further pursued. Although the High Court should be particularly cautious about granting a warrant authorising interception of conversations of an accused after there has been a charge, we are of the opinion that such a course is not precluded merely by the existence of the charge. (Page 112.)

This ruling would seem to take care of the first point in Aranui. If it were thought necessary to amend the two statutes, one simple way of the doing so would be to amend the Misuse of Drugs Amendment Act 1978 section 15 and the Crimes Act 1961 section 312B and section 312CB by inserting a provision to the effect that, for the purposes of those sections, the police investigation of a case is not concluded by reason only of the fact that a suspect has been charged. But we very much doubt whether there is need for amendment at all.

13 The second point on which Aranui turned is one that arises only in the cross-over context. The issue is not one of principle. The problem is a drafting one and arises because of a shortcut taken by the draftsman in using as a criterion of admissibility the words (in the case of Crimes Act 1961 section 312N(2)(b)(i)):

That a warrant or permit could have been issued under Part II of the Misuse of Drugs Amendment Act 1978.

and in the Misuse of Drugs Amendment Act 1978 section 26(2)(b)(i):

That a warrant or permit could have been issued under Part XIA of the Crimes Act 1961.

14 Both statutes define the offences that the judge must have reasonable grounds for believing to have been committed or to be contemplated (Misuse of Drugs Amendment Act 1978 sections 15, 15A and 15B; Crimes Act 1961 sections 312C and 312CB). In addition, both statutes prescribe the contents of warrants (Misuse of Drugs Amendment Act 1978 section 16, Crimes Act 1961 section 312D). We will call the requirement as to the contents of warrants the formal requirements. The trouble with the use of the shortcut described in the previous paragraph is exemplified by the decision in Aranui. In that case it was held that a warrant could not have been issued because the formal requirements could not have been satisfied. The provisions of the statutes as they stand are properly concerned to achieve a nice balance between the competing demands of privacy on the one hand and criminal investigation on the other. But the warrant is no more than a document, the purpose of which is to record for the benefit of all affected (including the constable) the metes and bounds of the constable’s authority. The purpose of the requirement of a written warrant is to assist the policing of the requirement that the power be used only within the boundaries that the issuing judge thought appropriate and this purpose is achieved by stipulating, for the purpose of avoiding any ambiguity, certain matters that the warrant must record. None of this has relevance when, on a cross-over application to the same or a different judge after the powers recorded by the warrant have been exercised, the question of the admission of evidence of other offences obtained fortuitously by means of the interception, is under consideration.

15 The inclusion in the requirements on which the judge must be satisfied on a cross-over application of the formal requirement is, we suggest, no more than a piece of drafting clumsiness which can be remedied without doing violence to the principles of the legislation by substituting words confining the requirement to one that the offence evidence, of which is fortuitously discovered in the course of a lawful interception, must be within the offence definition. So that the Crimes Act 1961 section 312N would read:

Where a private communication intercepted in pursuance of an interception warrant or an emergency permit discloses evidence relating to any offence other than –
(a) a specified offence, or a conspiracy to comment such an office; or
(b) a serious violent offence, or a conspiracy to commit such an offence; or
(c) a drug dealing offence or a prescribed cannabis offence (as those terms are defined in section 10 of the Misuse of Drugs Amendment Act 1978), –
no evidence of that communication or of its substance, meaning, or purport, may be given in any Court.

And the Misuse of Drugs Amendment Act 1978 section 26 would read:

Where a private communication intercepted in pursuance of a interception warrant or an emergency permit discloses evidence relating to any offence other than –
(a) a drug dealing offence; or
(b) a prescribed cannabis offence; or
(c) a specified offence as defined in the Crimes Act 1961 section 312A; or a conspiracy to commit such an offence; or
(d) a serious violent offence as defined in the Crimes Act 1961 section 312A, or a conspiracy to comment such an offence, –
no evidence of that communication or of its substance, meaning, or purport, may be given in any Court.

16 This change would also effect the alteration to the law attempted unsuccessfully by the enactment of a new section 312N(1) by section 19(1) of the Crimes Amendment Act (No 2) 1997 and of alternatives to section 26(1) and (2) by section 14 of the Misuse of Drugs Amendment Act (No 2) 1997. These measures began life as part of the Harassment and Criminal Associations Bill 1996. We set out the explanatory note to the relevant portion of clause 51 (the forerunner of the Crimes Amendment Act (No 2) 1997 provision) in full as follows:

The intention of the amendment is that the reference to “a specified offence” be interpreted to encompass only the actual offences in respect of which a warrant may be issued under section 312C, without encompassing the other elements required for the purposes of the issue of a warrant. This means that where evidence relating to one of those offences is lawfully obtained pursuant to an interception warrant or permit, the evidence is admissible in a prosecution for the offence even though the offender is not part of an organised criminal enterprise or the offence is not part of an ongoing pattern of criminal activity by members of such an enterprise.

We emphasise the words “without encompassing the other elements required for the purposes of the issue of a warrant”. The section was enacted as proposed. There seems to have been no contemporary misunderstanding of the intended effect of clause 51. The Ministry of Justice, assisting the select committee, told it “the effect of the amendment is that evidence of a kind that attracts interception powers obtained by a lawful interception is admissible in evidence whether or not the additional requirements for obtaining a warrant are satisfied”. The explanatory note to the relevant portion of clause 80 (the forerunner of the Misuse of Drugs Amendment Act 1997 provision) is to the same general effect. These amendments failed to achieve their intended purpose because, in each case, that purpose seemed negated by the preservation of the subsequent subsections of each section.

17 Although we have suggested a solution intended to result in as little disturbance to the existing statues as possible, it may well be that Parliamentary Counsel will prefer to recommend grasping the nettle of replacing the fascicle of sections in each of the two statutes with a single code. This would do away with a great deal of repetition, but runs the risk that attempts may be made to relitigate issues already settled.