AHUJA v POLICE [2019] NZCA 643

AHUJA v POLICE [2019] NZCA 643 [13 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA472/2019[2019] NZCA 643BETWEEN PIYUSH AHUJAAppellantAND NEW ZEALAND POLICERespondentHearing:Furthersubmissions:21 November 20196 December 2019Court: Gilbert, Dobson and Whata JJCounsel: A J Haskett for AppellantA J Ewing for RespondentJudgment: 13 December 2019 at 2 pmJUDGMENT OF THE COURTA 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.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Ahuja seeks leave to bring a second appeal against his conviction fordriving with excess breath alcohol. He contends his right to consult a lawyer unders 23(1)(b) of the New Zealand Bill of Rights Act 1990 was breached and the result ofthe evidential breath test should have been excluded in consequence. The applicationfor leave and the appeal were heard together.[2] In the District Court, Judge Lovell-Smith found that Mr Ahuja's rights had notbeen breached.1 On appeal to the High Court, Gordon J found: Mr Ahuja's rights hadnot been breached; the evidence had not been unfairly obtained; and, even if it hadbeen, the evidence should not be excluded under s 30 of the Evidence Act 2006.2The 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 beendrinking. After failing a roadside breath screening test, Mr Ahuja was required toaccompany the constable to the Ormiston police station for the purposes ofan evidential breath test, blood test or both. Mr Ahuja was advised at the roadside thathe had a right to consult a lawyer, he would be allowed a reasonable time to do thisand 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 hisrights. Judge Lovell-Smith accepted that Mr Ahuja informed the constable that hewished to speak to his own lawyer, who he named, and said he did not have hertelephone number.4 Mr Ahuja attempted to call his brother to obtain the lawyer'snumber. After three or four calls to his brother went unanswered, Mr Ahuja askedthe constable if he could keep trying.5 The constable advised Mr Ahuja there was notenough time for this, but he could choose a lawyer from the duty lawyer list, which heprovided to him.6 The constable called the first lawyer Mr Ahuja selected fromthe list, but there was no answer.7 The constable called the second lawyer Mr Ahujaselected and then left the room to enable Mr Ahuja to speak with the lawyer in private.81 Police v Ahuja [2019] NZDC 6057 [District Court judgment] at [48].2 Ahuja v Police [2019] NZHC 2010 [High Court judgment] at [50]. [63] and [80].3 District Court judgment, above n 1, at [6].4 At [6], [13] and [15].5 At [13].6 At [14].7 At [21].8 At [21].[5] After Mr Ahuja finished speaking to the lawyer, the constable requiredMr Ahuja to undergo an evidential breath test. At 2.21 pm, before administeringthis test, the constable again asked Mr Ahuja whether he would like to speak toa lawyer. Mr Ahuja responded "no" and added "I have already done that".9 Mr Ahujagave no indication at that stage he was unhappy with the advice he had received fromthe lawyer he had selected from the duty lawyer list.10[6] The evidential breath test produced a result of 506 micrograms of alcoholper litre of breath, twice the legal limit of 250 micrograms. At 2.34 pm, Mr Ahuja wasadvised of the result of the test and of his right to elect to have a blood test. He wastold that if he did not request such a test within 10 minutes the evidential breath testcould of itself be conclusive evidence in a prosecution under the Land Transport Act1998. Prior to the commencement of the 10-minute period, Mr Ahuja was againadvised of his rights, including his right to consult a lawyer and that a telephone wouldbe made available to him for that purpose.[7] Mr Ahuja answered "no". The constable asked him to sign the procedure sheetto confirm that he did not wish to speak to a lawyer again.11 Mr Ahuja tookthe 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 penback off him.12 The Judge accepted Mr Ahuja's evidence that he voiced hisdissatisfaction with the advice he had received from the duty lawyer and toldthe constable he wished to consult his own lawyer.13 However, the constable toldMr Ahuja that he would have to speak to the same duty lawyer given he did not havethe number for his own lawyer.14 The constable removed Mr Ahuja's cell phone fromhim prior to the commencement of the 10-minute election period although the phoneMr Ahuja had used to speak to the duty lawyer remained available to him.159 At [10].10 At [30].11 At [36].12 At [41] and [44].13 At [44].14 At [41] and [44].15 At [49].District Court judgment[8] In a carefully reasoned judgment, Judge Lovell-Smith first examined whetherMr Ahuja's right to consult a lawyer was adequately facilitated at the first stage, beforethe evidential breath test. The Judge found that the constable facilitated Mr Ahuja'sright in a real and practicable way at that stage by producing the duty lawyer list andcalling two different lawyers, including one who was available.16 The Judge notedthat Mr Ahuja did not request a phone book or other database to access his lawyer'snumber.17 There was nothing to suggest Mr Ahuja was dissatisfied with being placedin contact with a duty lawyer at that stage.18 The Judge considered the assessment ofthe sufficiency of facilitation of the right in any given case should not be judged withhindsight against the standard of "what the best course of action would have been".19The Judge concluded that Mr Ahuja was given a sufficient opportunity to exercise hisright to consult a lawyer prior to the evidential breath test and he did in fact obtainlegal advice.20[9] Turning to the second stage, prior to the commencement of the 10-minuteelection period, the Judge accepted Mr Ahuja's evidence that he made it known he wasnot satisfied with the advice he had received from the duty lawyer and wanted to speakto his own lawyer.21 He attempted to write this on the form when he was asked to signthe procedure sheet. However, the constable removed the pen from Mr Ahujabelieving he was angry and upset. The constable had already taken Mr Ahuja'scell phone from him.22 The Judge considered the opportunity to consult with the sameduty lawyer at this stage sufficiently facilitated Mr Ahuja's right.23 The Judge did notconsider the constable was obliged to facilitate contact with an alternative lawyersimply because Mr Ahuja expressed dissatisfaction with the advice he had alreadyreceived.2416 At [21].17 At [30].18 At [30].19 At [34].20 At [35].21 At [44].22 At [44].23 At [48].24 At [48].[10] The Judge found that the constable's removal of the pen so that Mr Ahuja couldnot make any correction or add anything to the procedure sheet was a breach of cl 5of the Chief Justice's Practice Note.25 However, the Judge considered there was nocausative link between this breach and the evidence obtained.26High Court judgment[11] Gordon J drew the following propositions from the relevant authorities.27There is a presumptive right to counsel of choice. However, the right is not absoluteand is subject to reasonable and practical limitations. In each case, it is a question offact and common sense whether a reasonable opportunity to consult counsel has beenafforded in all the circumstances, including the time and place.28 The assessment is notto be carried out with the benefit of hindsight applying the standard of the best courseof action available.29[12] Applying these principles, the Judge was satisfied the District Court wascorrect to find that reasonable steps were taken to facilitate the right to consult a lawyerat the first stage of the process, prior to the administration of the evidential breathtest.30[13] Turning to the second stage, prior to the commencement of the 10-minuteelection period, the Judge considered the constable was not required to take furthersteps to enable Mr Ahuja to contact his own lawyer.31 He already had the benefit oflegal advice.32 The phone he had used earlier remained available and he was able toobtain further legal advice from the duty lawyer had he wished to do so.3325 At [50], citing Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3NZLR 297 at cl 5.26 District Court judgment, above n 1, at [56].27 High Court judgment, above n 2, at [31]–[42], citing Ministry of Transport v Noort [1992] 3 NZLR260 (CA); Rae v Police [2000] 3 NZLR 452 (CA); Bignell v Police [2014] NZHC 2710; Brown vPolice HC Hamilton CRI-419-087-4, 22 October 2004; Barry v Police HC Whangarei CRI-2007-488-29, 3 April 2008; Tawhai v Police HC Auckland A109/06, 26 August 2002; McMillan v Police(1995) 2 HRNZ 445 (HC); MacMillan v Police HC Auckland CRI-2006-404-425, 14 May 2007;Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55; and Clark v Registrar of the Manukau DistrictCourt [2012] NZCA 193, (2012) 9 HRNZ 498.28 High Court judgment, above n 2, at [43].29 At [48].30 At [45]–[50].31 At [60].32 At [60].33 At [61].[14] Even if the evidence had been improperly obtained, the Judge considered itshould not be excluded after weighing the relevant factors in s 30 of the EvidenceAct.34 While Mr Ahuja was not able to consult his lawyer of choice, he obtained legaladvice from an experienced criminal lawyer. The intrusion on the right was thereforenot serious.35 The constable made genuine efforts to facilitate Mr Ahuja's exercise ofhis rights. There was no recklessness or bad faith, nor was the constable grosslycareless as Mr Ahuja had submitted.36 The procedure was time-sensitive.37 The Judgewas not persuaded that admission of the evidence would undermine the effectivenessor credibility of the justice system.38Leave to appeal[15] Leave for a second appeal must not be granted unless this Court is satisfiedthat the appeal involves a matter of general or public importance or a miscarriage ofjustice may have occurred.39 The threshold is high.40[16] The issues Mr Ahuja seeks to raise on a second appeal were clarified atthe hearing as follows:(a) Did the police breach the obligation to facilitate Mr Ahuja's right tolegal advice by failing to obtain his lawyer's telephone number orprovide him with access to a suitable directory?(b) Would any such breach at the second stage, after the evidential breathtest was completed, render the result of that test liable to exclusionunder 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 ofthe evidential breath test have been excluded?34 At [74].35 At [75].36 At [76].37 At [78].38 At [79].39 Criminal Procedure Act 2011, s 237(2).40 See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.[17] For the reasons set out below, we accept that the appeal raises questions ofgeneral or public importance, having likely application beyond the particularcircumstances of Mr Ahuja's case.41 We accordingly grant leave for a second appeal.AssessmentReasonable facilitation of the right to consult a lawyer[18] It is well-settled that drivers must be afforded their fundamental right to consulta lawyer when detained for the purposes of carrying out the statutory breath and bloodtesting procedures under the Land Transport Act.42 The opportunity may be limitedbut it must be reasonable in all the circumstances.43 In Ministry of Transport v Noort,Hardie Boys J emphasised the importance of the right to legal advice in maintainingthe freedom and dignity of the individual against the power and authority ofthe State.44 He pointed out that it was wrong to perceive the lawyer as impeding lawenforcement or hindering the administration of justice. On the contrary, responsiblelawyers are part of the process and facilitate it.45[19] Subject to reasonable and practical limitations consistent with the statutoryscheme, drivers are entitled to consult a lawyer of their choice. This is based onthe social value of freedom of choice and the importance of there being no interferenceby the State in the private and professional relationship that exists between a lawyerand client.46[20] Reasonable steps must be taken to facilitate the exercise of the right in a realand practicable way. In Rae v Police, decided in 2000, this Court held that wherea motorist communicates a wish to consult a lawyer, this should be facilitated bysupplying a telephone, providing a telephone book or list of lawyers willing to giveadvice to detained motorists and providing reasonable privacy.47 The practical41 At [36].42 Ministry of Transport v Noort, above n 27.43 At 274 and 285.44 At 286.45 At 286.46 Barrie v R, above n 27, at [27].47 Rae v Police, above n 27, at [58].equivalent today might be access to online sources such as the Register of Lawyersmaintained by the New Zealand Law Society.[21] The test procedures in this case were undertaken during normal working hoursat a police station. The Judge accepted Mr Ahuja's evidence that he told the constablehe wished to speak to his own lawyer, provided her name and said he did not have hercontact details. Mr Ahuja was entitled to consult counsel of his choice, assuming shewas available. Reasonable steps were required to facilitate this right. While what isreasonable in any given case is not to be judged with the benefit of hindsight or byreference to the standard of perfection, we consider that in circumstances such asthe present the constable was at least required to offer to take the simple and obviousstep of obtaining the named lawyer's telephone number from the internet orthe Register of Lawyers on the New Zealand Law Society website. This could havebeen done easily and without any material delay.[22] The failure at the second stage of the process, prior to the commencement ofthe 10-minute election period, was far more serious. It was simply wrong forthe constable to remove Mr Ahuja's cell phone from him and insist that he could onlyexercise his right to consult a lawyer by speaking with the same duty lawyer he hadalready spoken to. It was for Mr Ahuja to decide who he wished to consult. His choiceat the second stage was not fettered by the choice he made at the first. In the factualcircumstances that developed in this case, it was not a reasonable limitation ofthe right to require that any further advice must be obtained from the same lawyer.Although the right to consult a lawyer of choice is not an unfettered right, here therewas no indication that Mr Ahuja's lawyer would not have been available if her number,or the means of accessing it, had been provided to Mr Ahuja at the time.On the Judge's findings, it could not be said that Mr Ahuja's wish to speak with hisown lawyer was a delaying tactic and not genuine.[23] The Courts below relied on the decisions in Police v Hendy and Patel v Policeas justifying the course taken by the constable at the second stage in this case.48Those cases are distinguishable. In Hendy, Judge Kiernan stated that there was no48 Police v Hendy [2012] DCR 263; and Patel v Police [2015] NZHC 2361.legal requirement for a police officer to offer multiple lawyers if the person is notsatisfied with the legal advice they have obtained when their rights have been properlyfacilitated.49 That is not the situation here. Mr Ahuja wished to exercise his right toconsult a lawyer at the second stage. That right was not facilitated and he was not ableto exercise it. The right exercisable at the second stage cannot be conflated withthe earlier right. As this Court pointed out in Rae, this is the stage of the process wherea motorist can be expected to be in most need of legal advice because the result ofthe evidential breath test indicates that an offence may have been committed.50[24] In Patel, Moore J agreed with Judge P Sinclair's observation that a policeofficer is not required to ensure the motorist is happy with the legal advice received orwhether the advice was appropriate.51 We agree with this uncontroversial proposition.However, it is not relevant in this case where Mr Ahuja's right to consult a lawyer wasnot facilitated. On the contrary, his right to consult a lawyer of his choice was denied.Was the evidence improperly obtained?[25] Mr Haskett, for Mr Ahuja, submits that a breach of the right to consult a lawyerbefore the evidential breath test provides a causal nexus resulting in the evidencebeing improperly obtained and therefore liable to exclusion under s 30 of the EvidenceAct. Ms Ewing does not contest this.[26] Mr Haskett argues, relying on this Court's judgment in Rae and the SupremeCourt's judgment in Birchler v Police,52 that causation is not required at the secondstage, prior to the commencement of the 10-minute election period, becausethe question is whether there has been reasonable compliance with s 77(3) of the LandTransport Act. However, this is the opposite of what the Supreme Court said inBirchler:[19] What has occurred in the present case is that those framing the casestated have confused two things. The first is proof of compliance witha necessary step in the statutorily prescribed process for obtainingan evidential test, where s 64(2) may dispense with the need for strictcompliance in favour of reasonable compliance, thus removing a defence49 Police v Hendy, above n 48, at [52].50 Rae v Police, above n 27, at [44].51 Patel v Police, above n 48, at [43].52 Rae v Police, above n 27, at [15]; and Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169.which might otherwise exist. The second is a question of admissibility ofevidence to which s 30 may apply. This case involves only the former.Therefore s 30 could not apply, as it could do in a case like R v Gallichan,where the issue was not about compliance with the Land Transport Act butabout the adequacy of a police officer's explanation to a driver of the right toreceive legal advice under s 23(1)(b) of the New Zealand Bill of Rights Act.(Footnote omitted).[27] Given the clear guidance from the Supreme Court, a breach of the right toconsult a lawyer is not a question of reasonable compliance with the statutory processunder the Land Transport Act. Rather, it is a question of the admissibility of evidenceand is to be dealt with under s 30 of the Evidence Act.[28] Ms Ewing, for the Crown, responsibly concedes that the question of whethera breach of the right at the second stage, after the evidential breath test had beencompleted, could result in the evidence of the evidential breath test being improperlyobtained and accordingly liable to exclusion under s 30. Counsel have been unable tofind any authority directly on point. On one view, given the evidence of the evidentialbreath test had been obtained prior to the breach, the necessary causal nexus for it tobe improperly obtained evidence does not exist. On the other hand, the evidence ofthe evidential breath test is not admissible at all if a blood test is elected andundertaken.53 The breach of the right to consult a lawyer might also fall withinthe exceptional category discussed by the Supreme Court in R v Chetty ofnon-causative breaches which may nevertheless render the evidence liable toexclusion under s 30.54[29] We consider it beyond argument that the result of an evidential breath test willbe improperly obtained if the right to consult a lawyer was denied prior to that testbeing undertaken. Given our finding that Mr Ahuja's right was breached at that stage,the balancing test in s 30 is required.[30] We prefer the view that the same analysis applies to a breach of the right toconsult a lawyer at the second stage. The admissibility of the evidential breath testresult depends upon the non-election of a blood test. There is therefore a causal53 Land Transport Act 1998, s 77(3)(b).54 R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [47].connection between the admissibility of the result of the evidential breath test andthe exercise (or non-exercise) of the election having been accorded the right to consulta lawyer.[31] It follows that we accept Mr Haskett's submission that the evidence wasimproperly obtained for the purposes of s 30.Should the evidence of the evidential breath test have been excluded?[32] Gordon J acknowledged that the right to consult a lawyer is a fundamentalright. However, she considered the intrusion on that right was minimal, particularlygiven Mr Ahuja did consult a lawyer.55 The Judge considered that the constable madegenuine efforts to facilitate Mr Ahuja's exercise of his rights. The constable was notgrossly careless or reckless and had not acted in bad faith.56 The testing procedure istime-sensitive.57 Admitting the evidence would not undermine the effectiveness orcredibility of the justice system.58[33] Mr Haskett submits the evidence ought to have been excluded under s 30.He emphasises that the right to consult a lawyer is a fundamental right. He contendsthere was no particular urgency in this case; there was adequate time to consultthe duty lawyer and there would have been time for Mr Ahuja to consult his ownlawyer had her contact details been provided and she been available. Mr Haskettargues that driving with excess breath alcohol falls at the lower end of the spectrum ofoffences generally. He challenges the Judge's conclusion that the constable madeappropriate and genuine efforts to facilitate exercise of the right. Mr Haskett says thiscannot be reconciled with the District Court findings that the constable removedMr Ahuja's phone, removed the pen as Mr Ahuja was setting out his position on theprocedure sheet having been advised of his right to consult a lawyer, and insisted thatMr Ahuja could only consult the duty lawyer he had spoken to at the earlier stage andwas dissatisfied with. Mr Haskett points out that despite justifiable concerns aboutthe consistent reliability and accuracy of evidential breath test devices, s 75A of55 High Court judgment, above n 2, at [75].56 At [76]–[77].57 At [78].58 At [79].the Land Transport Act prevents drivers from challenging a certificate of compliance.Such a certificate must be accepted for all purposes as conclusive evidence ofthe matters stated in it. Mr Haskett submits that this highlights the importance ofdrivers being able to exercise their right to consult a lawyer before deciding whetherto elect a blood test.[34] Ms Ewing supports the Judge's analysis under s 30. She contends thatMr Ahuja has not shown that the Judge's discretionary balancing of the s 30 factorswas plainly wrong.[35] If the only breach under consideration was at the first stage of the process, wewould have agreed with the Judge's assessment. Although Mr Ahuja's right to consulta lawyer of his choice was not facilitated adequately, he nonetheless had the benefit ofadvice from a duty lawyer he selected from the duty list. There was no indication atthat stage Mr Ahuja was unhappy with the lawyer or the advice he received.However, as we have observed, the breach at the second stage was of a much moreserious character. Based on the unchallenged findings made in the District Court,Mr Ahuja was told at the second stage that he was not entitled to consult his ownlawyer and he was effectively prevented from doing so. Not only did the constableremove Mr Ahuja's phone, he made no attempt to facilitate Mr Ahuja's stated desireto consult his own lawyer. The stance adopted by the constable could not be justifiedon the grounds of urgency. There is no effective remedy for the breach other thanexclusion of the evidence. Given the fundamental importance of the right breachedand the serious intrusion upon it, we consider that the evidence ought to have beenexcluded.Result[36] The application for leave to bring a second appeal is granted.[37] The appeal is allowed.[38] The conviction is set-aside. We direct that a judgment of acquittal be entered.Solicitors:Crown Law Office, Wellington for Respondent