AHUJA v NEW ZEALAND POLICE [2019] NZHC 2010

AHUJA v NEW ZEALAND POLICE [2019] NZHC 2010 [16 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-151[2019] NZHC 2010BETWEEN PIYUSH AHUJAAppellantAND NEW ZEALAND POLICERespondentHearing: 5 August 2019Appearances: A Haskett for the AppellantT Mijatov for the RespondentJudgment: 16 August 2019JUDGMENT OF GORDON JThis judgment was delivered by me on 16 August 2019 at 11 am.Registrar/ Deputy RegistrarSolicitors: Crown Solicitor, ManukauA Haskett, AucklandIntroduction[1] This is an appeal against conviction on one charge of driving with excess breathalcohol contrary to s 56(1) of the Land Transport Act 1998 (LTA).[2] The appellant, Piyush Ahuja, submits that there has been a miscarriage ofjustice in that the evidential breath test was improperly obtained in breach of his rightto consult and instruct a lawyer under s 23(1)(b) of the New Zealand Bill of RightsAct 1990 (NZBORA) and the evidence should be excluded under s 30 of the EvidenceAct 2006. He also submits that the evidence of the evidential breath test should havebeen excluded under the common law doctrine of unfairness. At the heart of MrAhuja's appeal is his claim that the police officer did not take steps to reasonablyfacilitate access to Mr Ahuja's lawyer of choice.Background[3] Mr Ahuja was driving on Ormiston Road, South Auckland. At 1.42 pm, he waspulled over for speeding. A roadside breath screening test provided a reading of over400 micrograms of alcohol per litre of breath. The officer, Constable Shorn, requiredMr Ahuja to accompany him to the Ormiston Police Station for an evidential breathor blood test. At 1.46 pm, Mr Ahuja agreed to accompany Constable Shorn. Beforetransporting Mr Ahuja, Constable Shorn advised him of his rights in full, including hisright to consult and instruct a lawyer.[4] There is no record of the arrival time at the police station. There, the officerobtained a standard breath alcohol procedure sheet which sets out the process to befollowed in conducting breath and/or blood alcohol testing. It contains sequentiallylettered boxes for each stage of the testing procedure. Mr Ahuja takes no issue withthe procedure until the box H stage. What occurred at that and later stages was at issuein the trial.[5] The District Court Judge generally preferred the evidence of Mr Ahuja ratherthan the account given by the police officer. Mr Mijatov, appearing for the respondent,takes no issue with the factual findings made by the District Court Judge and agreesthat those findings can properly be accepted for the purposes of the appeal. I thereforecontinue this summary of the background incorporating those factual findings.[6] There was no dispute in relation to the advice Constable Shorn gave Mr Ahujaregarding his right to consult and instruct a lawyer at the box H stage, prior to theevidential breath test. Mr Ahuja then indicated to Constable Shorn that he wanted tospeak with his own lawyer, Zoe Reid. Mr Ahuja did not have Ms Reid's phonenumber. Constable Shorn permitted Mr Ahuja to call his brother on his own mobilephone to try and get a contact number for Ms Reid. Mr Ahuja called his brother (hesays) three or four times. Constable Shorn says it was four or five times. The Judgedid not make a finding on the number of times calls were made.[7] Mr Ahuja received no response to any of his calls. He asked Constable Shornif he could try again. Constable Shorn replied that there was not enough time and thatMr Ahuja would have to choose a lawyer from the duty list. Constable Shorn thenprovided Mr Ahuja with the Police Detention Legal Assistance (PDLA) roster. Theofficer rang Mr Ahuja's first choice from the list with no success. He then calledMr Ahuja's second choice from the list, Adam Holland. Constable Shorn then left theroom to allow Mr Ahuja to speak with Mr Holland over the phone in private. The timeat which contact was made with Mr Holland is recorded on the breath alcoholprocedure sheet as 2.18 pm.[8] Following the conversation, at 2.21 pm, and at the conclusion of the box Hstage, Constable Shorn advised Mr Ahuja that he was required to undergo an evidentialbreath test without delay. The constable asked Mr Ahuja again if he wanted to speakto a lawyer. Mr Ahuja said that he did not. Consistent with that position, the word"No" is circled after the question "Would you like to speak to a lawyer?" on the breathalcohol procedure sheet. In the space for "Comment" after the word "No" the words"I have ready done that" are written.[9] Mr Ahuja then underwent an evidential breath test. It produced a result of 506micrograms of alcohol per litre of breath.[10] The box I stage relates to the taking of the evidential breath test. There is noissue in relation to that step.[11] Box J is headed "Advice of positive evidential breath test given without delay".That box records in J5 that "The test indicates that the proportion of alcohol in yourbreath exceeds 400 micrograms of alcohol per litre of breath". It also records, besidethe J5 box, the following:If you do not, within 10 minutes, request a blood test, the evidential breath testyou have just undergone could, of itself, be conclusive evidence in aprosecution against you under the Land Transport Act 1998.[12] And:If you in fact undergo a blood test, the result of the evidential breath test cannotbe used in court proceedings to support a charge of driving or attempting todrive with excess breath alcohol concentration. But the result of the blood testmay be used to support a charge based on analysis of your blood alcoholconcentration.[13] Finally, in relation to box J, J6 records:You are advised that if you elect to have a blood test you may be liable to paythe blood test fee and associated medical costs whether or not the result of thatblood test establishes that an offence under the Land Transport Act has beencommitted.[14] The form records that Mr Ahuja was advised of the positive result of hisevidential breath test and the matters in J5 and J6. His signature appears at the end ofbox J. The time was then 2.34 pm.[15] It was put to Constable Shorn in cross-examination that Mr Ahuja was happyto sign box J. The officer confirmed that was the case. In his evidence, Mr Ahuja saidhe was happy to sign box J. He said he did not have any problem in signing it.[16] The box K and L stages relate to the time prior to the 10-minute period toconsider the option of a blood test and the 10-minute period itself, respectively. Therewas no dispute at trial that Constable Shorn advised Mr Ahuja again of his right toconsult and instruct a lawyer. But there was a dispute at trial as to what then occurredat these two stages. Mr Ahuja did not sign box K. He noted on the sheet "Alreadyspoken to a lawyer. Don't want to speak again." The District Court Judge found thatMr Ahuja was voicing his dissatisfaction with the advice given by the duty lawyer;that he had reverted to asking for his own lawyer1 and wished to write as such in boxK.2 He did not complete the entry because Constable Shorn removed the pen fromhim.[17] At 2.50 pm, the officer started the block L stage, the 10-minute period toconsider the option of a blood test. Mr Ahuja did not elect to have a blood test.Accordingly, once the period was concluded, the officer circled "No" in response tothe question, "Does the driver elect to undergo blood test?"[18] Mr Ahuja was then arrested on a drink driving charge and the officer again readhim his rights, including the right to consult and instruct a lawyer. There was no issuethat those rights were given.[19] At the hearing in the District Court, the prosecution relied on the results of theevidential breath test. The Judge found the charge of driving with excess breathalcohol proved. Mr Ahuja was convicted and fined $406 with court costs of $130 andhe was disqualified from holding or obtaining a driver's licence for six months.District Court[20] The Judge reserved her decision to allow the parties to file written submissions.In a carefully reasoned decision, the Judge observed first, in relation to the defendant'sright to consult a lawyer under s 23(1)(b) of the NZBORA that:3From the moment the defendant was required to accompany Constable Shornto the police station for the purposes of a breath or blood procedures (sic), hewas detained for the purposes of the New Zealand Bill of Rights.[21] Secondly, as to reasonable facilitation of that right, the Judge found that theofficer had given Mr Ahuja sufficient opportunity to contact his lawyer. When thoseattempts failed, Mr Ahuja was given the viable alternative of speaking with a dutylawyer. And when given the PDLA list, the defendant did not express any1 Police v Ahuja [2019] NZDC 6057 at [44].2 At [41].3 At [16].dissatisfaction with being placed into contact with a duty lawyer. Importantly, thedefendant received legal advice. He did not helplessly submit to the proceedings. Hewas not left unaided. The Judge concluded that the defendant was given sufficientopportunity to exercise his right in a real and practicable way at the box H stage.4[22] Thirdly, as to the box K and L stages, the Judge accepted Mr Ahuja's accountthat he wanted to speak to Ms Reid, not the duty lawyer, and that his comments in boxK reflect this (albeit incompletely). But the Judge held there is no legal requirementfor the police to offer a person multiple lawyers if a defendant is not satisfied with thelegal advice received. Mr Ahuja's right had been properly facilitated at the box Hstage. The ability to consult with the same duty lawyer again at the box K stage wassufficient facilitation.5[23] Fourthly, the Judge considered whether the evidence was obtained unfairlypursuant to ss 30(5) and (6) of the Evidence Act (even if not in breach of theNZBORA). She held that the pen was removed from the defendant before he was ableto complete what he wanted to write in box K of the procedure sheet. This constituteda breach of cl 5 of the Chief Justice's Practice Note. But, she continued, there was nocausative link between the breach of cl 5 and the evidence obtained. The onlyconsequence of breaching cl 5 was that there was no written record of the defendantreverting to asking to speak with his own lawyer. This did not demonstrate a breachof his right to legal advice. Therefore, the evidence was not obtained unfairly.Approach on appeal[24] Mr Ahuja appeals his conviction as of right.6 This Court must allow the appealif it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage of justice has occurred,or if a miscarriage of justice has occurred for any reason.7 A miscarriage of justice isdefined as an error, irregularity, or occurrence in or in relation to or affecting the trial4 At [34] and [35].5 At [48] and [49].6 Criminal Procedure Act 2011, s 229.7 Section 232(2)(b)–(c).that has created a real risk that the outcome of the trial was affected or has resulted inan unfair trial.8[25] An appeal against conviction proceeds by way of rehearing.9 If an appellatecourt comes to a different view on the evidence, the trial judge necessarily will haveerred and the appeal must be allowed.10 The appellant must show that an error hasbeen made.11 The appellate court must remember the advantages a trial judge has,especially where the challenge is to credibility findings based on contested oralevidence.12 In that regard, I note the respondent's acceptance of the Judge's factualfindings as referred to in [5] above.Submissions[26] Mr Haskett, for Mr Ahuja, submits that there was a miscarriage of justice inthat the evidential breath test should have been, but was not, excluded from evidenceunder s 30 of the Evidence Act. The evidence was improperly obtained in consequenceof a breach of Mr Ahuja's right to consult a lawyer under s 23(1)(b) of the NZBORA.[27] Mr Haskett accepts that the issue is not what the best course of action wouldhave been but is whether the officer reasonably facilitated Mr Ahuja's right to consulthis named lawyer of choice. This right was breached:(a) prior to the evidential breath test, at the box H stage of the proceduresheet; and(b) after the evidential breath test when Mr Ahuja was informed about theright to elect a blood test, at the box K and L stages.[28] Mr Haskett further says that the breach of s 23(1)(b) of the NZBORA triggereda breach of Mr Ahuja's right to consider a blood election on a truly informed basisunder ss 70A and 77(3) of the LTA.8 Section 232(4).9 Sena v Police [2019] NZSC 55 at [32].10 At [38].11 At [38].12 At [38].[29] Mr Mijatov, for the Police, submits that the officer reasonably facilitated theappellant's right to consult a lawyer both prior to and following the evidential breathtest. And in any event, he says that, on balance, the Court should not exclude theevidence (even if it was improperly obtained) under s 30 of the Evidence Act.[30] It is convenient to deal with the alleged breaches of s 23(1)(b) at the two stagesseparately and in turn.Alleged breach of NZBORA at box H stage[31] The constitutional significance of a right to a lawyer was emphasised inMinistry of Transport v Noort where the Court of Appeal observed:13The right to consult a lawyer is part of our basic constitutional inheritance. The right is pivotal in assuring so far as possible that both those detained andthose detaining them act in accordance with the law. It recognises the realitythat an individual who is arrested or detained is ordinarily at a significantdisadvantage in relation to the informed and coercive powers available to theState. Access to counsel is a means of reducing that imbalance and of ensuringthat anyone arrested or detained is treated fairly in the criminal process. Inthat regard the right to a lawyer facilitates access to knowledge and also allowsfor representation by an independent intermediary.[32] But this right must be balanced against the operational requirements of thebreath and blood-alcohol legislation. The Court of Appeal continued:14The exercise of that right should be facilitated by making available a telephone But the due carrying out of the statutory testing process cannot be undulyhindered by hopeless or hapless quests for particular, unobtainable lawyers In some cases it may not be possible for the motorist to contact a lawyer withina reasonable time [33] It is well recognised that the right to a lawyer under s 23(1)(b) of NZBORA is,in the first instance, the right to consult one's own lawyer. In Ministry of Transport vNoort,15 Cooke P observed that a driver who cannot immediately contact his or herown lawyer should normally be allowed to try one or two others.13 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 279.14 At 284–285.15 At 274. See also Barry v Police HC Auckland CRI-2007-488-29, 3 April 2008 at [38]; Bignell vPolice [2014] NZHC 2710 at [55], citing Brown v Police HC Hamilton CRI-419-87-4, 22 October2004; and MacMillan v Police HC Auckland CRI-2006-404-425, 14 May 2007 at [5].[34] The question of facilitation in the context of the breath and blood-alcohollegislation was considered by a full Court of the Court of Appeal in Rae v Police,where the Court said:16[57] It follows from the availability of the right to counsel during the entireprocess that the obligation of the enforcement officer to facilitate the exerciseof the right, which this Court recognised in R v Mallinson [1993] l NZLR 528,also continues throughout. The obligation matches the circumstances. What isrequired at any particular point during the procedures will depend upon thecircumstances at that time, including of course the requirements of the Act. Itis not to be overlooked that it may only be when the evidential breath testresult is ascertained that the motorist appreciates that an offence may havebeen committed. What has to be provided in that circumstance is a fairopportunity for the detained person to consider and decide whether or not toexercise the right (Mallinson at p 530). It is a question of whether the motoristhas been afforded the facility "to exercise the right in a real and practicableway once there has been an indication that he or she wishes to do so", asNeazor J put it in Steel v Police (1994) 11 CRNZ 383 at p 391.[58] Prior to the taking of an evidential breath test a full advice of rightsand active facilitation of contact with a lawyer, where the motorist evinces awish to do so, is necessary. As a matter of now standard practice, this includessupplying a telephone in circumstances of reasonable privacy and makingavailable and calling attention to a telephone book or a list of lawyers willingto give advice to detained motorists.[35] In Brown v Police,17 a full Court of the High Court considered the issue ofreasonable facilitation when the person concerned wished to speak to his own lawyer.The relevant telephone directory was not available at the police station. The policeofficer attempted to use the police system which he understood incorporated theinformation from the Telecom White and Yellow Pages. The police officer madeseveral unsuccessful telephone calls endeavouring to obtain the lawyer's number.However, he was inadvertently using a misspelling of the lawyer's name as theappellant had not provided the officer with the correct spelling. The full Court heldthat, in the circumstances, the officer did adequately facilitate the request to contactthe lawyer.[36] Barry v Police,18 involved an appeal against conviction of driving with excessblood alcohol contrary to s 52 of the LTA. The appellant told the constable that hewished to speak to his lawyer in Auckland. It appeared that the constable assumed16 Rae v Police [2000] 3 NZLR 452 (CA).17 Brown v Police, above n 15.18 Barry v Police, above n 15.there was no Auckland telephone directory at the Paihia Police Station. The officertold the appellant that if he could provide the lawyer's telephone number, he could callthat lawyer, but he assumed that he would not be able to find the number. Thus, if theappellant could not provide it, he would have to talk to a local lawyer whose numberthe Police had. The District Court Judge found that the appellant was given theopportunity of making telephone communication with a local lawyer.[37] It was argued on appeal that there was a breach of s 23 of NZBORA given thatthe appellant had expressed a desire to speak to his own lawyer in Auckland and thesteps taken by the Police to facilitate such access were inadequate. In the High Court,Stephens J stated that it seemed that the breach of the appellant's right to consult alawyer in the circumstances of the case lay in the assumption that there was noAuckland telephone directory on hand and no other means available (such as use ofthe 018 service) to endeavour to track the number. The Court agreed with the DistrictCourt Judge, stating that, even if there were a breach, at worst there was "marginallyan unintended breach".19 The High Court concluded that if there were a breach,exclusion of the evidence of the blood test would be wholly disproportionate to thebreach of the right that occurred.[38] In Tawhai v Police,20 Mr Tawhai appealed his conviction in the District Courtof driving a motor vehicle while the proportion of alcohol in his blood exceeded thelegal limit. After being given his Bill of Rights advice, at 10 pm Mr Tawhai said hewanted to speak to a particular lawyer, Mr Lloyd. Between 10 pm and 10.26 pm theconstable attempted to contact Mr Lloyd by telephone. She made some 10 calls in allwithout making contact. She asked Mr Tawhai if he would like to speak to anotherlawyer, giving him the phone book, which included the Yellow Pages, which sheopened at the barristers and solicitors section for him. He maintained his refusal tospeak to another lawyer. The officer then required Mr Tawhai to undergo an evidentialbreath test without delay. That test produced a positive result of 531 micrograms ofalcohol per litre of breath.19 At [48].20 Tawhai v Police HC Auckland A109/02, 26 August 2002.[39] Mr Tawhai was then told of his right to request a blood test and again advisedof his right to consult and instruct a lawyer. He again said he wanted to speak toMr Lloyd. For a second time, the constable made a series of unsuccessful attempts totelephone Mr Lloyd by trying the three numbers she had been given. Mr Tawhai againdeclined to utilise the telephone book to contact another lawyer, saying he only wantedMr Lloyd. In those circumstances, Rodney Hansen J held that the officer could notreasonably have been expected to do anything more than she did to facilitateMr Tawhai's right to a lawyer.[40] By contrast, in McMillan v Police,21 an appeal against conviction for excessbreath alcohol, the appellant, who was new to Christchurch requested he be allowedto telephone his Auckland lawyer, a Mr Hart. The constable consulted his seniorsergeant and, on his advice, declined the appellant's request to telephone Mr Hart inAuckland, and suggested the appellant choose a lawyer from the local list.John Hansen J held that the fundamental right must be, in the first instance, the rightto consult one's own lawyer. The list has relevance where that lawyer is unavailableor in circumstances where the arrested person does not have a lawyer of their own.22In the circumstances of that case, the Judge held there was a breach of the appellant'srights under the NZBORA.[41] In Macmillan v Police,23 the appellant had been charged with driving a motorvehicle with excess blood alcohol. In the District Court he gave evidence that he toldthe police he would like to speak to his own lawyer, and the sergeant asked him if hehad the lawyer's number with him. The appellant said he did not. Then the sergeantinstructed the constable to get the duty lawyer list. Heath J agreed that the evidencewas sufficient to conclude that a specific request to contact a specific lawyer wasmade. In that case the High Court allowed the appeal holding that the police officerhad not fulfilled the obligation to facilitate contact with the named lawyer.[42] There was a different outcome in Barrie v R.24 In that case, the appellant,having failed a breath screening test and being asked to undergo an evidential blood21 McMillan v Police HC Christchurch A176/95, 17 August 1995.22 At 4.23 MacMillan v Police, above n 15.24 Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55.test, was told of a list of lawyers available to advise him. The appellant wanted toconsult his lawyer in Sydney but could not remember his name. He was toldrepeatedly he could consult a local lawyer, but the appellant refused to undertake anevidential blood test because he could not contact his lawyer in Sydney. The Court ofAppeal held that s 23(1)(b) of the NZBORA did not provide a detainee in thedrink/drive context with an automatic right to consult a lawyer who practiced overseas.[43] A review of the above cases confirms that there is a presumptive right tocounsel of choice. This is based on the social value of freedom of choice and the viewthat the State should not intervene in the private and professional relationship betweenlawyer and client.25 This right is not absolute and is subject to reasonable and practicallimitations.26 Ultimately it must always be a question of fact and common sensewhether reasonable opportunity to consult counsel has been given.27 Where a motoristis informed of the right and makes a request to consult his own lawyer, the extent ofthe facilitation obligations on the police will turn on a range of factors including time,place and circumstances. Whether the police have adequately facilitated the exerciseof the right to consult a named lawyer will be a question of fact and common senseand will depend on all the circumstances of the particular case.28[44] Mr Haskett submits that the officer could reasonably have done more tofacilitate contact with the lawyer, Ms Reid, before directing Mr Ahuja to the list ofPDLA lawyers. Mr Haskett submits that there had not been a lengthy delay and theofficer could easily have obtained a telephone book or carried out an Internet searchfor Ms Reid's number. He submits that would have been reasonable facilitation.[45] I do not accept that there was not reasonable facilitation. That obligation wasdischarged in this case. I say that for the following reasons.[46] Mr Ahuja sought and was given permission to use his own cellphone to contacthis brother. The officer did not prevent that contact being made. Mr Ahuja used hisown phone, he says three or four times, the officer says four or five times in attempts25 At [27], citing Clark v Registrar of the Manukau District Court [2012] NZCA 193.26 At [27], citing Ministry of Transport v Noort, above n 13, and Barry v Police, above n 15.27 At [14], citing Ministry of Transport v Noort, above n 13, at 274 and 285.28 Barry v Police, above n 15, at [44].to reach his brother. When he could not make contact with his brother, the officer thengave Mr Ahuja the opportunity of consulting a lawyer from the list of duty lawyers onthe PDLA scheme. Mr Ahuja selected one of the lawyers. When that lawyer wasunavailable, Mr Ahuja made a second selection, the officer telephoned the number andput the appellant in contact with the lawyer and left the room. The officer had thusmoved to what was a viable alternative.[47] Importantly, the District Court Judge found that at the box H stage there wasnothing to suggest that Mr Ahuja was dissatisfied with being placed in contact with aduty lawyer. That finding is consistent with the entries on the breath alcohol sheet atthe conclusion of the box H stage as referred to in [8] above.[48] I accept that there were other and additional options available in terms ofputting Mr Ahuja in contact with his lawyer of choice, such as providing him with atelephone book. (There was no evidence regarding this option, nor was there anyevidence as to whether or not Mr Ahuja's phone or the officer's phone were Internetcapable). However, there may be more than one way of reasonably facilitating accessto a named lawyer. The Court is not required to assess, with the benefit of hindsight,what the best course of action would have been. With the benefit of hindsight, it willoften be possible to suggest other actions that might have been taken to better facilitatethe exercise of the s 23 right or to find fault with the actions that were taken.29 As theCourt noted in Brown:[61] It will often be possible, with the benefit of hindsight to suggest otheractions that might have been taken to better facilitate the exercise of s23 rights,or to find fault with those actions that were taken. However, the questionfor the Court is whether in the particular circumstances of the case reasonableaction has been taken to facilitate the exercise of the rights. The issue for theCourt is not whether the action taken was, with the benefit of hindsight, thebest possible course of action available.[49] Striving for perfection is not required. The test is whether, in the circumstancesof the case, reasonable action was taken to facilitate the right. In my view, there wasreasonable facilitation in the officer allowing Mr Ahuja to call his brother three or fourtimes (accepting Mr Ahuja's evidence as to the number of phone calls) to attempt toobtain Ms Reid's telephone number.29 Brown v Police, above n 15, at [61].[50] Therefore, the Judge did not err in finding that there was reasonable facilitationof the right to consult a (named) lawyer prior to the evidential breath test.Alleged breach of NZBORA at box K and L stages[51] As is apparent from the narrative above, at the box K stage, Mr Ahuja hadreverted to asking for Ms Reid. He complained about Mr Holland and did not want tospeak to him. The Judge held that s 23(1)(b) was not breached at this stage, saying:[48] Given that the defendant's s 23(1)(b) right was sufficiently facilitatedat the box H stage, in my view the ability to consult with the same duty lawyeragain at the box K stage, was sufficient facilitation of this right. There was noobligation on Constable Shorn, in my view, to facilitate contact with analternative lawyer simply because the defendant voiced dissatisfaction withthe advice he had already received.[52] Mr Haskett submits that even if there was no breach of s 23(1)(b) prior to theevidential breath test, that does not mean that Mr Ahuja was unable to try again toobtain Ms Reid's phone number after the evidential breath test. He says it is acontinuing right which is all the more important at the stage of deciding whether toelect a blood test.[53] Mr Haskett submits a reasonable time for Mr Ahuja to try to call his brother toobtain Ms Reid's telephone number should have been afforded. There was noevidence that Ms Reid was unavailable and that distinguishes the present case fromPasene v Police.30[54] Mr Haskett also distinguishes Patel v Police.31 Mr Patel was unhappy aboutthe duty lawyer at the block H stage but was subsequently offered and spoke to adifferent lawyer at the block K stage. In this case, Mr Haskett says Mr Ahuja was leftunaided in making a decision about the fundamental right whether to do a blood test.[55] He submits that even if the Court does not accept that Mr Ahuja should havebeen offered a further opportunity to contact Ms Reid, at a bare minimum he shouldhave been offered the opportunity to contact a different duty lawyer.30 Pasene v Police HC Auckland CRI-2009-404-211, 14 September 2009.31 Patel v Police [2015] NZHC 2361.[56] Mr Haskett is, of course, correct that a detainee's right to consult a lawyercontinues throughout the alcohol testing process.32 But the right is neverthelesssubject to legitimate limits. A particular limit on the right is where the detainee statesthey are not happy with the advice received from a duty lawyer. The officer is notunder an obligation to facilitate further access to additional lawyers who might beavailable. That is the effect of Police v Hendy.33 In Hendy, the Court rejected asubmission similar to that advanced by Mr Ahuja, in these terms:[47] Now in this case the submission is that because Mr Hendy had toldthe police officer he had not received helpful advice the first time from thelawyer he had telephoned in private, the officer should have offered him theopportunity to call another lawyer. That cannot be the legal right provided bythe New Zealand Bill of Rights Act. [52] It cannot be a legal requirement for a police officer to offer a personmultiple lawyers if the person is not satisfied for some reason with the legaladvice they have obtained when their rights have been properly facilitated.[57] Similarly, in Patel, the Court rejected a similar submission that not only wasthe officer required to facilitate Mr Patel's access to a lawyer, but once he becameaware Mr Patel was dissatisfied with the advice he had received, the constable shouldhave asked Mr Patel if he wanted to consult and instruct another lawyer. 34[58] The Court held it was not the constable's responsibility to ensure Mr Patel washappy or satisfied with the legal advice he received or to assess whether the advicewas appropriate.[59] I do not accept the way in which Mr Haskett distinguishes Patel when hesubmits that Mr Patel was offered and then spoke to a different lawyer at the block Kstage. The High Court did not rely on that fact as fixing a breach:[39] Mr Haskett's criticism is that not only was Constable Pukeiti requiredto facilitate Mr Patel's access to a lawyer but once he became aware Mr Patelwas dissatisfied with the advice he had received, the constable should haveasked Mr Patel if he wanted to consult and instruct another lawyer. Byadopting such an approach Mr Haskett submits Constable Pukeiti would have32 Rae v Police, above n 16, at [57].33 Police v Hendy [2012] DCR 263; and Patel v Police, above n 31.34 Patel v Police, above n 31 at [39]-[40].provided Mr Patel with a "real and practicable" opportunity to exercise hiss 21 rights.[40] I do not agree. [60] In this case, I have found the officer adequately facilitated Mr Ahuja's accessto a lawyer at the box H stage. There was no reason for the officer to revert to stepsto enable Mr Ahuja to contact Ms Reid when that earlier facilitation was adequate andMr Ahuja had had the benefit of legal advice. Even a continuing right is subject to areasonable limit. In my view, in the circumstances of this case, the right does notextend to further attempting to facilitate contact with Ms Reid. The only thing thathad changed was that Mr Ahuja was expressing dissatisfaction with the advice he hadreceived from Mr Holland.[61] Mr Ahuja was not deprived of the means of seeking legal advice. As noted byJudge Lovell-Smith, the phone that Mr Ahuja had used initially to speak to the dutylawyer was still in the room and available to him during the election period if hewished to speak with Mr Holland (an experienced criminal lawyer) again. I agree withthe Judge that this would have allowed Mr Ahuja to exercise his right to obtain legaladvice in a real and practicable manner, had he wished to do so.[62] I therefore find that there was no breach of the s 23(1)(b) right at the box Kand L stages. It follows that there was no breach of Mr Ahuja's right to consider ablood election under ss 70A and 77(3) of the LTA on an informed basis (Mr Haskett'ssubmission being that it was the breach of s 23(1)(b) that triggered breaches of thosesections under the LTA).[63] Given my findings that there was no breach of the s 23(1)(b) right at any stage,it is not necessary to address counsel's submissions on causation.Fairness[64] In the District Court, Mr Haskett advanced another basis for his submissionthat the evidence of the evidential breath test was improperly obtained. That wasbecause it was obtained unfairly under s 30(5)(c) and s 30(6) of the Evidence Act as itwas obtained as a result of a breach of cl 5 of the Chief Justice's Practice Note, giventhat Mr Ahuja did not have the opportunity to complete his written notation at box K.The District Court Judge did not accept that submission.[65] Mr Haskett did not pursue that argument in this Court. However, in his oralsubmissions, Mr Haskett argued that the evidence of the evidential breath test shouldbe excluded under the common law discretion on the grounds of unfairness.Mr Haskett says that Mr Ahuja was deprived of the right under s 70A and s 77(3) tobe provided 10 minutes without undue pressure to make an informed decision onwhether or not to elect a blood test.Analysis[66] Section 30(5)(c) provides that evidence is "improperly obtained" if it isobtained unfairly. In Fan v R,35 the Court of Appeal held that the common lawdiscretion to exclude evidence on the general ground of unfairness had survived theEvidence Act. When the argument of unfairness in a criminal proceeding focuses onthe way in which the evidence has been obtained, admissibility will be governed bys 30 of the Evidence Act. However, when the defence argues that some other factormakes it unfair to admit evidence against the defendant, the decision as to admissibilitywill be governed by the Court's continuing common law discretion. There is noformula to be applied in the exercise of the discretion.36 The Court said:[41] We see a distinction between a detainee being under amisapprehension as to the consequences of making a statement induced by athird party, and a statement being made by a detainee while under the influenceof drugs, or limited intellectual capacity, or a lack of understanding of theimplications of making the statement. While in the latter cases it has beenaccepted that the Police were not at fault, the disability of the detainees maynevertheless have been discernible to the interviewing officer. There can beexternal indicia of drug consumption, mental ill health or confusion. There aregood policy reasons to make Police officers aware that confessions may beexcluded because of the presence of such factors in respect of the accused.Such a possibility should make Police officers more vigilant to ensure that adetainee properly understands his or her rights and understands the interviewprocess. Even then it will be a matter of fact and degree as to whether theevidence should be excluded. However, no such policy considerations arise inrelation to the quality of the legal advice earlier received by a detainee. It isquite simply impossible for a Police officer to monitor the quality of adetainee's legal advice. ...35 Fan v R [2012] NZCA 114, [2012] 3 NZLR 29.36 At [36].(footnotes omitted)[67] The Court held in Fan that it was of particular importance in that case that thePolice did nothing unfair or in any direct way use the coercive power of the State toelicit the statements from Messrs Sun and Fan. The Court said that the balancingfactors set out in s 30(3) of the Evidence Act were relevant by way of analogy to theexercise of the common law discretion to exclude on the general ground of unfairness.[68] In this case, Mr Haskett does not point to any other basis such as referred to in[41] of Fan (set out in [66] above) apart from the alleged breach of s 23(1)(b) thatwould make it unfair for the evidence of the evidential breath test to be admitted. Theargument as to a breach of the right to elect blood on an informed basis under ss 70Aand 77 of the LTA is effectively part of Mr Haskett's s 23(1)(b) argument. Mr Ahujawas not labouring under any physical or mental disability that would have affected hisdecision whether or not to elect to provide a blood sample. He had already spoken toa lawyer at the box H stage and he had the opportunity and ability to speak to thatsame lawyer at the box K and L stage. He elected not to do so.[69] Referring to the s 30(3) factors that are relevant, first, as to the nature andquality of the evidence, the evidential breath test was crucial in securing Mr Ahuja'sconviction. Mr Haskett submits that the conclusive weight of the evidential breath testarises from the machinery of ss 64(4), 75A(2) and 77(1) of the LTA. He says it is alegal fiction. But that does not change the fact that, in law, the evidential breath testis conclusive evidence. This factor relates to the reliability and probative value of theevidence.37 This factor weighs against exclusion.[70] As to the seriousness of the offence, Mr Ahuja is charged with driving withexcess breath alcohol contrary to s 56(1) of the LTA. The maximum penalty isimprisonment for a term not exceeding three months or a fine not exceeding $4,500,and the court must order the person to be disqualified from holding or obtaining adriver licence for six months or more.38 The offence is not a serious offence in the37 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [201].38 Land Transport Act 1998, s 56(3).wider context.39 But this factor can "cut both ways".40 On the one hand, the courtsshould exercise caution and exclude improperly obtained evidence where the offencethe defendant is charged with is serious, because there is a lot on the line (seriousoffences carrying more serious penalties). On the other hand, there may be a greaterpublic interest in convicting serious crimes, which weighs in favour of not excludingthe improperly obtained evidence. Ultimately, this is a neutral factor.[71] As to alternative remedies, I accept Mr Haskett's submission that there is noalternative remedy to exclusion of the evidence. This factor weighs in favour ofexclusion.[72] In the end, Mr Ahuja made the decision not to seek further legal advice fromMr Holland. It was his decision not to seek further legal advice. But, that is not areason for the exclusion of the evidence on unfairness grounds.[73] For all the foregoing reasons, I do not uphold Mr Haskett's submission that itwould be unfair to admit the evidence.Should the evidence be excluded?[74] Although I have found that the evidential breath test was not improperlyobtained in consequence of a breach of s 23(1)(b) of the NZBORA, in case I am wrong,I go on to consider whether the exclusion of the evidence is proportionate to the weightof the impropriety and the need for an effective and credible system of justice.41 Therelevant factors are those in s 30(3) of the Evidence Act. I have already consideredsome of the factors in the context of my "unfairness" assessment above. I do not repeatthem here but take them into account.[75] First, there is the importance of the right breached and the seriousness of theintrusion. As discussed at [31] above, the right to consult a lawyer is a fundamentalright. But the intrusion on that right was minimal. This is not a case where Mr Ahujawas unable to consult a lawyer. At the box H stage, he consulted a duty lawyer.39 See Muggeridge v Police HC Tauranga CRI-2008-463-57, 2 December 2008 at [24].40 See Hamed v R, above n 37, at [65], [187] and [239].41 Evidence Act, s 30(2)(b).Therefore, whilst Mr Ahuja was not able to consult his named lawyer of choice, as theJudge noted, the appellant was not left unaided or helpless. Constable Shorn providedcontact with a lawyer and left the room to allow for private communication. Therefore,the intrusion was not serious. This factor weighs against exclusion.[76] Secondly, as to the nature of the impropriety, Constable Shorn made genuineefforts to facilitate Mr Ahuja's exercise of his rights. The officer permitted Mr Ahujato try to contact his brother a number of times. I do not consider that there was anyrecklessness or bad faith. Nor do I find that he was grossly careless, as submitted byMr Haskett. This factor weighs against exclusion.[77] At the box K and L stages, Mr Ahuja was not prevented from contactingMr Holland again. The means for him to do was available. At these stages, theintrusion on the right was minimal and there was no recklessness or bad faith on thepart of the officer.42[78] Thirdly, there was some urgency in obtaining the evidential breath test. Theprocedure is time-sensitive. There was necessarily a limited time in which each stageof the alcohol testing procedure was required to be undertaken.[79] On balance, and if the appeal were to be decided on this basis, I would findthat the s 30(3) factors weigh against exclusion of the evidence. I do not consider thatthis result would undermine the effectiveness or credibility of the justice system.Conclusion[80] The evidence was not improperly obtained under s 23(1)(b) of NZBORA norwas it unfair to admit the evidence of the evidential breath test. Even if the evidencewas improperly obtained, the s 30(3) factors would weigh against exclusion of theevidence.42 Mr Haskett made various alternative submissions on causation. He submitted that if Mr Ahujahad taken the blood test then the evidential breath test would not be admissible (s 77(3) of theLTA). However, in the end, any breach at the box K and L stages did not have a material effecton the obtaining of the evidential breath test. That is the test for "improperly obtained" unders 30(5) of the Evidence Act.[81] Accordingly, I dismiss the appeal.___________________________________Gordon J