Ahuja v Police

• Jurisdiction: New Zealand
• Judge: Gilbert J
• Judgment Date: 13 December 2019
• Neutral Citation: [2019] NZCA 643
• Court: Court of Appeal
• Docket Number: CA472/2019
• Date: 13 December 2019

Between

Piyush Ahuja

Appellant

and

New Zealand Police

Respondent

[2019] NZCA 643

Court:

Gilbert, Dobson and Whata JJ

CA472/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Bill of Rights, Criminal — appeal against conviction — right to consult a lawyer — appellant did not know contact details for lawyer of choice-whether police obligated to obtain contact details — New Zealand Bill of Rights Act 1990

Counsel:

A J Haskett for Appellant

A J Ewing for Respondent

• A The application for leave to bring a second appeal is granted.

• B The appeal is allowed.

• C The conviction is set aside. We direct that a judgment of acquittal be entered.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Gilbert J)

1 Mr Ahuja seeks leave to bring a second appeal against his conviction for driving with excess breath alcohol. He contends his right to consult a lawyer under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 was breached and the result of the evidential breath test should have been excluded in consequence. The application for leave and the appeal were heard together.

2 In the District Court, Judge Lovell-Smith found that Mr Ahuja's rights had not been breached. 1 On appeal to the High Court, Gordon J found: Mr Ahuja's rights had not been breached; the evidence had not been unfairly obtained; and, even if it had been, the evidence should not be excluded under s 30 of the Evidence Act 2006. 2

The facts

3 Having been stopped by police for speeding on Ormiston Road, Flat Bush, Auckland at 1.42 pm on Monday 28 May 2018, Mr Ahuja admitted he had been drinking. After failing a roadside breath screening test, Mr Ahuja was required to accompany the constable to the Ormiston police station for the purposes of an evidential breath test, blood test or both. Mr Ahuja was advised at the roadside that he had a right to consult a lawyer, he would be allowed a reasonable time to do this and a telephone would be made available to him for that purpose. 3

4 Following arrival at the police station, Mr Ahuja was again advised of his rights. Judge Lovell-Smith accepted that Mr Ahuja informed the constable that he wished to speak to his own lawyer, who he named, and said he did not have her telephone number. 4 Mr Ahuja attempted to call his brother to obtain the lawyer's number. After three or four calls to his brother went unanswered, Mr Ahuja asked the constable if he could keep trying. 5 The constable advised Mr Ahuja there was not enough time for this, but he could choose a lawyer from the duty lawyer list, which he provided to him. 6 The constable called the first lawyer Mr Ahuja selected from the list, but there was no answer. 7 The constable called the second lawyer Mr Ahuja selected and then left the room to enable Mr Ahuja to speak with the lawyer in private. 8

5 After Mr Ahuja finished speaking to the lawyer, the constable required Mr Ahuja to undergo an evidential breath test. At 2.21 pm, before administering this test, the constable again asked Mr Ahuja whether he would like to speak to a lawyer. Mr Ahuja responded “no” and added “I have already done that”. 9 Mr Ahuja gave no indication at that stage he was unhappy with the advice he had received from the lawyer he had selected from the duty lawyer list. 10

6 The evidential breath test produced a result of 506 micrograms of alcohol per litre of breath, twice the legal limit of 250 micrograms. At 2.34 pm, Mr Ahuja was advised of the result of the test and of his right to elect to have a blood test. He was told that if he did not request such a test within 10 minutes the evidential breath test could of itself be conclusive evidence in a prosecution under the Land Transport Act 1998. Prior to the commencement of the 10-minute period, Mr Ahuja was again advised of his rights, including his right to consult a lawyer and that a telephone would be made available to him for that purpose.

7 Mr Ahuja answered “no”. The constable asked him to sign the procedure sheet to confirm that he did not wish to speak to a lawyer again. 11 Mr Ahuja took the constable's pen and started writing on the form. After he had written “Already spoken to lawyer. Don't want to speak again to”, the constable took the pen back off him. 12 The Judge accepted Mr Ahuja's evidence that he voiced his dissatisfaction with the advice he had received from the duty lawyer and told the constable he wished to consult his own lawyer. 13 However, the constable told Mr Ahuja that he would have to speak to the same duty lawyer given he did not have the number for his own lawyer. 14 The constable removed Mr Ahuja's cell phone from him prior to the commencement of the 10-minute election period although the phone Mr Ahuja had used to speak to the duty lawyer remained available to him. 15

District Court judgment

8 In a carefully reasoned judgment, Judge Lovell-Smith first examined whether Mr Ahuja's right to consult a lawyer was adequately facilitated at the first stage, before the evidential breath test. The Judge found that the constable facilitated Mr Ahuja's right in a real and practicable way at that stage by producing the duty lawyer list and calling two different lawyers, including one who was available. 16 The Judge noted that Mr Ahuja did not request a phone book or other database to access his lawyer's number. 17 There was nothing to suggest Mr Ahuja was dissatisfied with being placed in contact with a duty lawyer at that stage. 18 The Judge considered the assessment of the sufficiency of facilitation of the right in any given case should not be judged with hindsight against the standard of “what the best course of action would have been”. 19 The Judge concluded that Mr Ahuja was given a sufficient opportunity to exercise his right to consult a lawyer prior to the evidential breath test and he did in fact obtain legal advice. 20

9 Turning to the second stage, prior to the commencement of the 10-minute election period, the Judge accepted Mr Ahuja's evidence that he made it known he was not satisfied with the advice he had received from the duty lawyer and wanted to speak to his own lawyer. 21 He attempted to write this on the form when he was asked to sign the procedure sheet. However, the constable removed the pen from Mr Ahuja believing he was angry and upset. The constable had already taken Mr Ahuja's cell phone from him. 22 The Judge considered the opportunity to consult with the same duty lawyer at this stage sufficiently facilitated Mr Ahuja's right. 23 The Judge did not consider the constable was obliged to facilitate contact with an alternative lawyer simply because Mr Ahuja expressed dissatisfaction with the advice he had already received. 24

10 The Judge found that the constable's removal of the pen so that Mr Ahuja could not make any correction or add anything to the procedure sheet was a breach of cl 5 of the Chief Justice's Practice Note. 25 However, the Judge considered there was no causative link between this breach and the evidence obtained. 26

High Court judgment

11 Gordon J drew the following propositions from the relevant authorities. 27 There is a presumptive right to counsel of choice. However, the right is not absolute and is subject to reasonable and practical limitations. In each case, it is a question of fact and common sense whether a reasonable opportunity to consult counsel has been afforded in all the circumstances, including the time and place. 28 The assessment is not to be carried out with the benefit of hindsight applying the standard of the best course of action available. 29

12 Applying these principles, the Judge was satisfied the District Court was correct to find that reasonable steps were taken to facilitate the right to consult a lawyer at the first stage of the process, prior to the administration of the evidential breath test. 30

13 Turning to the second stage, prior to the commencement of the 10-minute election period, the Judge considered the constable was not required to take further steps to enable Mr Ahuja to contact his own lawyer. 31 He already had the benefit of legal advice. 32 The phone he had used earlier remained available and he was able to obtain further legal advice from the duty lawyer had he wished to do so. 33

14 Even if the evidence had been improperly obtained, the Judge considered it should not be excluded after weighing the relevant factors in s 30 of the Evidence Act. 34 While Mr Ahuja was not able to consult his lawyer of choice, he obtained legal advice from an experienced criminal lawyer. The intrusion on the right was therefore not serious. 35 The constable made genuine efforts to facilitate Mr Ahuja's exercise of his rights. There was no recklessness or bad faith, nor was the constable grossly careless as Mr Ahuja had submitted. 36 The procedure was time-sensitive. 37 The Judge was not persuaded that admission of the evidence would undermine the effectiveness or credibility of the justice system. 38

Leave to appeal

15 Leave for a second appeal must not be granted unless this Court is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred. 39 The threshold is high. 40

16 The issues Mr Ahuja seeks to raise on a second appeal were clarified at the hearing as follows:

• (a) Did the police breach the obligation to facilitate Mr Ahuja's right to legal advice by failing to obtain his lawyer's telephone number or provide him with access to a suitable directory?

• (b) Would any such breach at the second stage, after the evidential breath test was completed, render the result of that test liable to exclusion under s 30 of the Evidence Act on the basis it was improperly obtained?

• (c) If the right was breached and s 30 is engaged, should the evidence of the evidential breath test have been excluded?

17 For the reasons set out below, we accept that the appeal raises...