Ahuja v Police
[2019] NZCA 643
•13 December 2019 at 2 pm
| 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 with the lawyer in private.[8]
[4]At [6], [13] and [15].
[5]At [13].
[6]At [14].
[7]At [21].
[8]At [21].
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]
[9]At [10].
[10]At [30].
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.
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
[11]At [36].
[12]At [41] and [44].
[13]At [44].
[14]At [41] and [44].
[15]At [49].
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]
[16]At [21].
[17]At [30].
[18]At [30].
[19]At [34].
[20]At [35].
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]
[21]At [44].
[22]At [44].
[23]At [48].
[24]At [48].
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
[25]At [50], citing Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297 at cl 5.
[26]District Court judgment, above n 1, at [56].
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]
[27]High Court judgment, above n 2, at [31]–[42], citing Ministry of Transport v Noort [1992] 3 NZLR 260 (CA); Rae v Police [2000] 3 NZLR 452 (CA); Bignell v Police [2014] NZHC 2710; Brown v Police 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 District Court [2012] NZCA 193, (2012) 9 HRNZ 498.
[28]High Court judgment, above n 2, at [43].
[29]At [48].
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]
[30]At [45]–[50].
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]
[31]At [60].
[32]At [60].
[33]At [61].
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
[34]At [74].
[35]At [75].
[36]At [76].
[37]At [78].
[38]At [79].
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]
[39]Criminal Procedure Act 2011, s 237(2).
[40]See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
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?
For the reasons set out below, we accept that the appeal raises questions of general or public importance, having likely application beyond the particular circumstances of Mr Ahuja’s case.[41] We accordingly grant leave for a second appeal.
Assessment
Reasonable facilitation of the right to consult a lawyer
[41]At [36].
It is well-settled that drivers must be afforded their fundamental right to consult a lawyer when detained for the purposes of carrying out the statutory breath and blood testing procedures under the Land Transport Act.[42] The opportunity may be limited but 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 maintaining the freedom and dignity of the individual against the power and authority of the State.[44] He pointed out that it was wrong to perceive the lawyer as impeding law enforcement or hindering the administration of justice. On the contrary, responsible lawyers are part of the process and facilitate it.[45]
[42]Ministry of Transport v Noort, above n 27.
[43]At 274 and 285.
[44]At 286.
[45]At 286.
Subject to reasonable and practical limitations consistent with the statutory scheme, drivers are entitled to consult a lawyer of their choice. This is based on the social value of freedom of choice and the importance of there being no interference by the State in the private and professional relationship that exists between a lawyer and client.[46]
[46]Barrie v R, above n 27, at [27].
Reasonable steps must be taken to facilitate the exercise of the right in a real and practicable way. In Rae v Police, decided in 2000, this Court held that where a motorist communicates a wish to consult a lawyer, this should be facilitated by supplying a telephone, providing a telephone book or list of lawyers willing to give advice to detained motorists and providing reasonable privacy.[47] The practical equivalent today might be access to online sources such as the Register of Lawyers maintained by the New Zealand Law Society.
[47]Rae v Police, above n 27, at [58].
The test procedures in this case were undertaken during normal working hours at a police station. The Judge accepted Mr Ahuja’s evidence that he told the constable he wished to speak to his own lawyer, provided her name and said he did not have her contact details. Mr Ahuja was entitled to consult counsel of his choice, assuming she was available. Reasonable steps were required to facilitate this right. While what is reasonable in any given case is not to be judged with the benefit of hindsight or by reference to the standard of perfection, we consider that in circumstances such as the present the constable was at least required to offer to take the simple and obvious step of obtaining the named lawyer’s telephone number from the internet or the Register of Lawyers on the New Zealand Law Society website. This could have been done easily and without any material delay.
The failure at the second stage of the process, prior to the commencement of the 10-minute election period, was far more serious. It was simply wrong for the constable to remove Mr Ahuja’s cell phone from him and insist that he could only exercise his right to consult a lawyer by speaking with the same duty lawyer he had already spoken to. It was for Mr Ahuja to decide who he wished to consult. His choice at the second stage was not fettered by the choice he made at the first. In the factual circumstances that developed in this case, it was not a reasonable limitation of the 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 there was 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 his own lawyer was a delaying tactic and not genuine.
The Courts below relied on the decisions in Police v Hendy and Patel v Police as justifying the course taken by the constable at the second stage in this case.[48] Those cases are distinguishable. In Hendy, Judge Kiernan stated that there was no legal requirement for a police officer to offer multiple lawyers if the person is not satisfied with the legal advice they have obtained when their rights have been properly facilitated.[49] That is not the situation here. Mr Ahuja wished to exercise his right to consult a lawyer at the second stage. That right was not facilitated and he was not able to exercise it. The right exercisable at the second stage cannot be conflated with the earlier right. As this Court pointed out in Rae, this is the stage of the process where a motorist can be expected to be in most need of legal advice because the result of the evidential breath test indicates that an offence may have been committed.[50]
[48]Police v Hendy [2012] DCR 263; and Patel v Police [2015] NZHC 2361.
[49]Police v Hendy, above n 48, at [52].
[50]Rae v Police, above n 27, at [44].
In Patel, Moore J agreed with Judge P Sinclair’s observation that a police officer is not required to ensure the motorist is happy with the legal advice received or whether 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 was not facilitated. On the contrary, his right to consult a lawyer of his choice was denied.
Was the evidence improperly obtained?
[51]Patel v Police, above n 48, at [43].
Mr Haskett, for Mr Ahuja, submits that a breach of the right to consult a lawyer before the evidential breath test provides a causal nexus resulting in the evidence being improperly obtained and therefore liable to exclusion under s 30 of the Evidence Act. Ms Ewing does not contest this.
Mr Haskett argues, relying on this Court’s judgment in Rae and the Supreme Court’s judgment in Birchlerv Police,[52] that causation is not required at the second stage, prior to the commencement of the 10‑minute election period, because the question is whether there has been reasonable compliance with s 77(3) of the Land Transport Act. However, this is the opposite of what the Supreme Court said in Birchler:
[19] What has occurred in the present case is that those framing the case stated have confused two things. The first is proof of compliance with a necessary step in the statutorily prescribed process for obtaining an evidential test, where s 64(2) may dispense with the need for strict compliance in favour of reasonable compliance, thus removing a defence which might otherwise exist. The second is a question of admissibility of evidence 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 but about the adequacy of a police officer’s explanation to a driver of the right to receive legal advice under s 23(1)(b) of the New Zealand Bill of Rights Act.
(Footnote omitted).
[52]Rae v Police, above n 27, at [15]; and Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169.
Given the clear guidance from the Supreme Court, a breach of the right to consult a lawyer is not a question of reasonable compliance with the statutory process under the Land Transport Act. Rather, it is a question of the admissibility of evidence and is to be dealt with under s 30 of the Evidence Act.
Ms Ewing, for the Crown, responsibly concedes that the question of whether a breach of the right at the second stage, after the evidential breath test had been completed, could result in the evidence of the evidential breath test being improperly obtained and accordingly liable to exclusion under s 30. Counsel have been unable to find any authority directly on point. On one view, given the evidence of the evidential breath test had been obtained prior to the breach, the necessary causal nexus for it to be improperly obtained evidence does not exist. On the other hand, the evidence of the evidential breath test is not admissible at all if a blood test is elected and undertaken.[53] The breach of the right to consult a lawyer might also fall within the exceptional category discussed by the Supreme Court in R v Chetty of non‑causative breaches which may nevertheless render the evidence liable to exclusion under s 30.[54]
[53]Land Transport Act 1998, s 77(3)(b).
[54]R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [47].
We consider it beyond argument that the result of an evidential breath test will be improperly obtained if the right to consult a lawyer was denied prior to that test being undertaken. Given our finding that Mr Ahuja’s right was breached at that stage, the balancing test in s 30 is required.
We prefer the view that the same analysis applies to a breach of the right to consult a lawyer at the second stage. The admissibility of the evidential breath test result depends upon the non-election of a blood test. There is therefore a causal connection between the admissibility of the result of the evidential breath test and the exercise (or non-exercise) of the election having been accorded the right to consult a lawyer.
It follows that we accept Mr Haskett’s submission that the evidence was improperly obtained for the purposes of s 30.
Should the evidence of the evidential breath test have been excluded?
Gordon J acknowledged that the right to consult a lawyer is a fundamental right. However, she considered the intrusion on that right was minimal, particularly given Mr Ahuja did consult a lawyer.[55] The Judge considered that the constable made genuine efforts to facilitate Mr Ahuja’s exercise of his rights. The constable was not grossly careless or reckless and had not acted in bad faith.[56] The testing procedure is time‑sensitive.[57] Admitting the evidence would not undermine the effectiveness or credibility of the justice system.[58]
[55]High Court judgment, above n 2, at [75].
[56]At [76]–[77].
[57]At [78].
[58]At [79].
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 contends there was no particular urgency in this case; there was adequate time to consult the duty lawyer and there would have been time for Mr Ahuja to consult his own lawyer had her contact details been provided and she been available. Mr Haskett argues that driving with excess breath alcohol falls at the lower end of the spectrum of offences generally. He challenges the Judge’s conclusion that the constable made appropriate and genuine efforts to facilitate exercise of the right. Mr Haskett says this cannot be reconciled with the District Court findings that the constable removed Mr Ahuja’s phone, removed the pen as Mr Ahuja was setting out his position on the procedure sheet having been advised of his right to consult a lawyer, and insisted that Mr Ahuja could only consult the duty lawyer he had spoken to at the earlier stage and was dissatisfied with. Mr Haskett points out that despite justifiable concerns about the consistent reliability and accuracy of evidential breath test devices, s 75A of the Land Transport Act prevents drivers from challenging a certificate of compliance. Such a certificate must be accepted for all purposes as conclusive evidence of the matters stated in it. Mr Haskett submits that this highlights the importance of drivers being able to exercise their right to consult a lawyer before deciding whether to elect a blood test.
Ms Ewing supports the Judge’s analysis under s 30. She contends that Mr Ahuja has not shown that the Judge’s discretionary balancing of the s 30 factors was plainly wrong.
If the only breach under consideration was at the first stage of the process, we would have agreed with the Judge’s assessment. Although Mr Ahuja’s right to consult a lawyer of his choice was not facilitated adequately, he nonetheless had the benefit of advice from a duty lawyer he selected from the duty list. There was no indication at that 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 more serious 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 own lawyer and he was effectively prevented from doing so. Not only did the constable remove Mr Ahuja’s phone, he made no attempt to facilitate Mr Ahuja’s stated desire to consult his own lawyer. The stance adopted by the constable could not be justified on the grounds of urgency. There is no effective remedy for the breach other than exclusion of the evidence. Given the fundamental importance of the right breached and the serious intrusion upon it, we consider that the evidence ought to have been excluded.
Result
The application for leave to bring a second appeal is granted.
The appeal is allowed.
The conviction is set-aside. We direct that a judgment of acquittal be entered.
Solicitors:
Crown Law Office, Wellington for Respondent
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