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Ahuja v Police

Ahuja v Police

Case [2019] NZCA 643 13 December 2019

Right to Consult a Lawyer

Admissibility of Evidence

Reasonable Facilitation

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA472/2019
[2019] NZCA 643

BETWEEN	PIYUSH AHUJA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing: Further submissions:	21 November 2019 6 December 2019
Court:	Gilbert, Dobson and Whata JJ
Counsel:	A J Haskett for Appellant A J Ewing for Respondent
Judgment:	13 December 2019 at 2 pm

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is granted.
BThe appeal is allowed.
CThe conviction is set aside. We direct that a judgment of acquittal be entered.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

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.
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

[1]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].

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]
[3]District Court judgment, above n 1, at [6].
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahuja v Police

Details

AGLC: Ahuja v Police [2019] NZCA 643
Case: [2019] NZCA 643
Decision Date: 13 December 2019 at 2 pm

CaseChat Overview and Summary

Piyush Ahuja, the appellant, sought leave to bring a second appeal against his conviction for driving with excess breath alcohol. He argued that his right to consult a lawyer under section 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. The District Court had found that Mr Ahuja’s rights had not been breached, a finding which was upheld by the High Court. The Court of Appeal found that Mr Ahuja's right to consult a lawyer was breached when the police failed to obtain his lawyer's telephone number or provide him with access to a suitable directory. The appeal raised questions of general or public importance, having likely application beyond the particular circumstances of Mr Ahuja’s case. The breach at the second stage was of a much more serious character, as Mr Ahuja was effectively prevented from consulting his own lawyer. The evidence of the evidential breath test should have been excluded. The application for leave to bring a second appeal was granted, the appeal was allowed, and the conviction was set aside with direction that a judgment of acquittal be entered.

Orders