KEY POINTS:
A man convicted by a jury of drug charges before any evidence was called so he could appeal the admissibility of some evidence has lost his appeal.
In a decision issued yesterday, the Court of Appeal confirmed the conviction against Majid Safaei Javid, 34, of Glenfield on the North Shore, who was found guilty in the High Court at Auckland in March of importing and supplying crystal methamphetamine worth more than $1 million.
Justice Simon France had, in agreement with Javid's lawyer Barry Hart, asked the jury to return the verdicts at the start of the trial. He said Mr Hart wanted to appeal a decision about the admissibility of some evidence.
Mr Hart had earlier argued some evidence should not be presented to the jury but the court's decision had gone against his client.
That evidence, which could then be heard by a jury, would ensure the Crown could prove its case against Javid.
Justice France invited the jury to trust his assessment of the situation and find Javid guilty. Mr Hart could then appeal against the conviction to the Court of Appeal on the grounds the evidence should not have been admissible.
Crown prosecutor Ross Burns congratulated the jury for making legal history, saying: "No accused person has ever asked a jury to convict him. You've been involved in something unique."
The appeal related to whether the interception warrant issued to police conferred authority on them to intercept communications from cellular phones, the numbers of which were not expressly stated, and whether the method by which text messages obtained from Vodafone by the police amounted to an authorised interception.
There was reference in the application for the interception warrant to two particular cellphone numbers but some of the evidence related to a third number, not specifically named.
The Court of Appeal said that the officers involved thought Javid had stopped using that number but, on the day the interception warrant was issued, they learnt it was again being used by him. They advised Vodafone that day.
Javid's counsel contended the police had acted in bad faith in obtaining an interception warrant and presenting it to Vodafone when they knew text messaging was not covered by the warrant.
But the Court of Appeal said the position appeared to be that the police had sought an interception warrant because they were interested in communications by and to Javid.
"Having passed the high test necessary to achieve such an authorisation, the police then advised Vodafone of its existence in relation to a relevant telephone number.
"In accordance with what for the purposes of this case was acknowledged to be an existing protocol for a period of 30 days, Vodafone ensured the text messages by and to Mr Javid on that number were maintained in a form in which they were retrievable."
It was clear there was in law no interception. As there was no interception, there could not be an "unauthorised" interception. The information that was complained about was not obtained by interception.
- NZPA
