| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA472/2019 [2019] NZCA 643 |
| BETWEEN | PIYUSH AHUJA |
| AND | NEW ZEALAND POLICE |
| Hearing: Further submissions: | 21 November 2019 |
Court: | Gilbert, Dobson and Whata JJ |
Counsel: | A J Haskett for Appellant |
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…
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- AGLC
- Ahuja v Police [2019] NZCA 643
- Case
- [2019] NZCA 643
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Orders
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