The extension of warrants to intercept private communications, from oral to any form of communication, pursuant to s 35 and Schedule 2 of the Crimes Amendment Act 2003[NZ], has not drawn all private communications within the same warrant procedure. This is because, as the Court noted in R v C 5/8/04, CA184/04, the new legislation only covers, because of its definition of "intercept", interceptions that occur while the communication is taking place or is in transit. Therefore, records of text messages retained by a service provider can be seized under a search warrant but not under an interception warrant. Of course, a search warrant cannot be issued for material that does not exist at the time the warrant is sought.
What, one might wonder, is the position in relation to email messages that have not been received by their intended recipient? Until received, the records of them held by the service provider are not records of completed communications, so their "in transit" quality appears to make the interception warrant procedure applicable. They may, however, be received between the application for the interception warrant and its being used, in which case a search warrant would be needed. Plainly, the police will have to seek both types of warrant in such cases.
Does this mean the police need to have reasonable grounds to believe that a communication has both been received and not been received?
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