Ahuja v Police - [2019] NZHC 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-151

[2019] NZHC 2010

BETWEEN
PIYUSH AHUJA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 August 2019

Appearances:

A Haskett for the Appellant

T Mijatov for the Respondent

Judgment:

16 August 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 16 August 2019 at 11 am.

Registrar/ Deputy Registrar

Solicitors: Crown Solicitor, Manukau
A Haskett, Auckland

AHUJA v NEW ZEALAND POLICE [2019] NZHC 2010 [16 August 2019]

Introduction

[1] This is an appeal against conviction on one charge of driving with excess breath alcohol contrary to s 56(1) of the Land Transport Act 1998 (LTA).

[2] The appellant, Piyush Ahuja, submits that there has been a miscarriage of justice in that the evidential breath test was improperly obtained in breach of his right to consult and instruct a lawyer under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and the evidence should be excluded under s 30 of the Evidence Act 2006. He also submits that the evidence of the evidential breath test should have been excluded under the common law doctrine of unfairness. At the heart of Mr Ahuja’s appeal is his claim that the police officer did not take steps to reasonably facilitate access to Mr Ahuja’s lawyer of choice.

Background

[3] Mr Ahuja was driving on Ormiston Road, South Auckland. At 1.42 pm, he was pulled over for speeding. A roadside breath screening test provided a reading of over 400 micrograms of alcohol per litre of breath. The officer, Constable Shorn, required Mr Ahuja to accompany him to the Ormiston Police Station for an evidential breath or blood test. At 1.46 pm, Mr Ahuja agreed to accompany Constable Shorn. Before transporting Mr Ahuja, Constable Shorn advised him of his rights in full, including his right to consult and instruct a lawyer.

[4] There is no record of the arrival time at the police station. There, the officer obtained a standard breath alcohol procedure sheet which sets out the process to be followed in conducting breath and/or blood alcohol testing. It contains sequentially lettered boxes for each stage of the testing procedure. Mr Ahuja takes no issue with the procedure until the box H stage. What occurred at that and later stages was at issue in the trial.

[5] The District Court Judge generally preferred the evidence of Mr Ahuja rather than 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 agrees

that those findings can properly be accepted for the purposes of the appeal. I therefore continue this summary of the background incorporating those factual findings.

[6] There was no dispute in relation to the advice Constable Shorn gave Mr Ahuja regarding his right to consult and instruct a lawyer at the box H stage, prior to the evidential breath test. Mr Ahuja…

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] NZHC 2010
Case: [2019] NZHC 2010
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Gordon J considered an appeal by Piyush Ahuja against his conviction for driving with excess breath alcohol. The appellant argued that the evidential breath test should have been excluded under the New Zealand Bill of Rights Act 1990 (NZBORA) and the Evidence Act 2006 due to a breach of his right to consult and instruct a lawyer. Ahuja claimed that the police officer did not reasonably facilitate his access to his lawyer of choice. The court examined whether there was a breach of Ahuja’s right to consult a lawyer at two stages: prior to the evidential breath test (box H stage) and after the evidential breath test (box K and L stages). The court found that at the box H stage, the officer reasonably facilitated Ahuja’s right by allowing him to attempt to contact his lawyer, and when that failed, providing a viable alternative by connecting him with a duty lawyer. Regarding the box K and L stages, the court held that there was no obligation to offer further facilitation once the right had been sufficiently facilitated earlier. The court concluded that the evidence was not improperly obtained and, even if it were, the factors under the Evidence Act weighed against excluding the evidence. Consequently, the appeal was dismissed.

Orders