Ahuja v Police
[2019] NZHC 2010
•16 August 2019
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 then indicated to Constable Shorn that he wanted to speak with his own lawyer, Zoe Reid. Mr Ahuja did not have Ms Reid’s phone number. Constable Shorn permitted Mr Ahuja to call his brother on his own mobile phone to try and get a contact number for Ms Reid. Mr Ahuja called his brother (he says) three or four times. Constable Shorn says it was four or five times. The Judge did not make a finding on the number of times calls were made.
[7] Mr Ahuja received no response to any of his calls. He asked Constable Shorn if he could try again. Constable Shorn replied that there was not enough time and that Mr Ahuja would have to choose a lawyer from the duty list. Constable Shorn then provided Mr Ahuja with the Police Detention Legal Assistance (PDLA) roster. The officer rang Mr Ahuja’s first choice from the list with no success. He then called Mr Ahuja’s second choice from the list, Adam Holland. Constable Shorn then left the room to allow Mr Ahuja to speak with Mr Holland over the phone in private. The time at which contact was made with Mr Holland is recorded on the breath alcohol procedure sheet as 2.18 pm.
[8] Following the conversation, at 2.21 pm, and at the conclusion of the box H stage, Constable Shorn advised Mr Ahuja that he was required to undergo an evidential breath test without delay. The constable asked Mr Ahuja again if he wanted to speak to a lawyer. Mr Ahuja said that he did not. Consistent with that position, the word “No” is circled after the question “Would you like to speak to a lawyer?” on the breath alcohol procedure sheet. In the space for “Comment” after the word “No” the words “I have ready done that” are written.
[9] Mr Ahuja then underwent an evidential breath test. It produced a result of 506 micrograms of alcohol per litre of breath.
[10] The box I stage relates to the taking of the evidential breath test. There is no issue in relation to that step.
[11] Box J is headed “Advice of positive evidential breath test given without delay”. That box records in J5 that “The test indicates that the proportion of alcohol in your breath exceeds 400 micrograms of alcohol per litre of breath”. It also records, beside the J5 box, the following:
If you do not, within 10 minutes, request a blood test, the evidential breath test you have just undergone could, of itself, be conclusive evidence in a prosecution against you under the Land Transport Act 1998.
[12]And:
If you in fact undergo a blood test, the result of the evidential breath test cannot be used in court proceedings to support a charge of driving or attempting to drive with excess breath alcohol concentration. But the result of the blood test may be used to support a charge based on analysis of your blood alcohol concentration.
[13]Finally, in relation to box J, J6 records:
You are advised that if you elect to have a blood test you may be liable to pay the blood test fee and associated medical costs whether or not the result of that blood test establishes that an offence under the Land Transport Act has been committed.
[14] The form records that Mr Ahuja was advised of the positive result of his evidential breath test and the matters in J5 and J6. His signature appears at the end of box J. The time was then 2.34 pm.
[15] It was put to Constable Shorn in cross-examination that Mr Ahuja was happy to sign box J. The officer confirmed that was the case. In his evidence, Mr Ahuja said he was happy to sign box J. He said he did not have any problem in signing it.
[16] The box K and L stages relate to the time prior to the 10-minute period to consider the option of a blood test and the 10-minute period itself, respectively. There was no dispute at trial that Constable Shorn advised Mr Ahuja again of his right to consult and instruct a lawyer. But there was a dispute at trial as to what then occurred at these two stages. Mr Ahuja did not sign box K. He noted on the sheet “Already
spoken to a lawyer. Don’t want to speak again.” The District Court Judge found that Mr Ahuja was voicing his dissatisfaction with the advice given by the duty lawyer; that he had reverted to asking for his own lawyer1 and wished to write as such in box
K.2 He did not complete the entry because Constable Shorn removed the pen from him.
[17] At 2.50 pm, the officer started the block L stage, the 10-minute period to consider the option of a blood test. Mr Ahuja did not elect to have a blood test. Accordingly, once the period was concluded, the officer circled “No” in response to the question, “Does the driver elect to undergo blood test?”
[18] Mr Ahuja was then arrested on a drink driving charge and the officer again read him his rights, including the right to consult and instruct a lawyer. There was no issue that those rights were given.
[19] At the hearing in the District Court, the prosecution relied on the results of the evidential breath test. The Judge found the charge of driving with excess breath alcohol proved. Mr Ahuja was convicted and fined $406 with court costs of $130 and he was disqualified from holding or obtaining a driver’s licence for six months.
District Court
[20] The Judge reserved her decision to allow the parties to file written submissions. In a carefully reasoned decision, the Judge observed first, in relation to the defendant’s right to consult a lawyer under s 23(1)(b) of the NZBORA that:3
From the moment the defendant was required to accompany Constable Shorn to the police station for the purposes of a breath or blood procedures (sic), he was detained for the purposes of the New Zealand Bill of Rights.
[21] Secondly, as to reasonable facilitation of that right, the Judge found that the officer had given Mr Ahuja sufficient opportunity to contact his lawyer. When those attempts failed, Mr Ahuja was given the viable alternative of speaking with a duty lawyer. And when given the PDLA list, the defendant did not express any
1 Police v Ahuja [2019] NZDC 6057 at [44].
2 At [41].
3 At [16].
dissatisfaction with being placed into contact with a duty lawyer. Importantly, the defendant received legal advice. He did not helplessly submit to the proceedings. He was not left unaided. The Judge concluded that the defendant was given sufficient opportunity to exercise his right in a real and practicable way at the box H stage.4
[22] Thirdly, as to the box K and L stages, the Judge accepted Mr Ahuja’s account that he wanted to speak to Ms Reid, not the duty lawyer, and that his comments in box K reflect this (albeit incompletely). But the Judge held there is no legal requirement for the police to offer a person multiple lawyers if a defendant is not satisfied with the legal advice received. Mr Ahuja’s right had been properly facilitated at the box H stage. The ability to consult with the same duty lawyer again at the box K stage was sufficient facilitation.5
[23] Fourthly, the Judge considered whether the evidence was obtained unfairly pursuant to ss 30(5) and (6) of the Evidence Act (even if not in breach of the NZBORA). She held that the pen was removed from the defendant before he was able to complete what he wanted to write in box K of the procedure sheet. This constituted a breach of cl 5 of the Chief Justice’s Practice Note. But, she continued, there was no causative link between the breach of cl 5 and the evidence obtained. The only consequence of breaching cl 5 was that there was no written record of the defendant reverting to asking to speak with his own lawyer. This did not demonstrate a breach of his right to legal advice. Therefore, the evidence was not obtained unfairly.
Approach on appeal
[24] Mr Ahuja appeals his conviction as of right.6 This Court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.7 A miscarriage of justice is defined as an error, irregularity, or occurrence in or in relation to or affecting the trial
4 At [34] and [35].
5 At [48] and [49].
6 Criminal Procedure Act 2011, s 229.
7 Section 232(2)(b)–(c).
that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.8
[25] An appeal against conviction proceeds by way of rehearing.9 If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.10 The appellant must show that an error has been made.11 The appellate court must remember the advantages a trial judge has, especially where the challenge is to credibility findings based on contested oral evidence.12 In that regard, I note the respondent’s acceptance of the Judge’s factual findings as referred to in [5] above.
Submissions
[26] Mr Haskett, for Mr Ahuja, submits that there was a miscarriage of justice in that the evidential breath test should have been, but was not, excluded from evidence under s 30 of the Evidence Act. The evidence was improperly obtained in consequence of a breach of Mr Ahuja’s right to consult a lawyer under s 23(1)(b) of the NZBORA.
[27] Mr Haskett accepts that the issue is not what the best course of action would have been but is whether the officer reasonably facilitated Mr Ahuja’s right to consult his named lawyer of choice. This right was breached:
(a)prior to the evidential breath test, at the box H stage of the procedure sheet; and
(b)after the evidential breath test when Mr Ahuja was informed about the right to elect a blood test, at the box K and L stages.
[28] Mr Haskett further says that the breach of s 23(1)(b) of the NZBORA triggered a breach of Mr Ahuja’s right to consider a blood election on a truly informed basis under ss 70A and 77(3) of the LTA.
8 Section 232(4).
9 Sena v Police [2019] NZSC 55 at [32].
10 At [38].
11 At [38].
12 At [38].
[29] Mr Mijatov, for the Police, submits that the officer reasonably facilitated the appellant’s right to consult a lawyer both prior to and following the evidential breath test. And in any event, he says that, on balance, the Court should not exclude the evidence (even if it was improperly obtained) under s 30 of the Evidence Act.
[30] It is convenient to deal with the alleged breaches of s 23(1)(b) at the two stages separately and in turn.
Alleged breach of NZBORA at box H stage
[31]The constitutional significance of a right to a lawyer was emphasised in
Ministry of Transport v Noort where the Court of Appeal observed:13
The right to consult a lawyer is part of our basic constitutional inheritance. … The right is pivotal in assuring so far as possible that both those detained and those detaining them act in accordance with the law. It recognises the reality that an individual who is arrested or detained is ordinarily at a significant disadvantage in relation to the informed and coercive powers available to the State. Access to counsel is a means of reducing that imbalance and of ensuring that anyone arrested or detained is treated fairly in the criminal process. In that regard the right to a lawyer facilitates access to knowledge and also allows for representation by an independent intermediary.
[32] But this right must be balanced against the operational requirements of the breath and blood-alcohol legislation. The Court of Appeal continued:14
The exercise of that right should be facilitated by making available a telephone
… But the due carrying out of the statutory testing process cannot be unduly hindered by hopeless or hapless quests for particular, unobtainable lawyers … In some cases it may not be possible for the motorist to contact a lawyer within a reasonable time …
[33] It is well recognised that the right to a lawyer under s 23(1)(b) of NZBORA is, in the first instance, the right to consult one’s own lawyer. In Ministry of Transport v Noort,15 Cooke P observed that a driver who cannot immediately contact his or her own lawyer should normally be allowed to try one or two others.
13 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 279.
14 At 284–285.
15 At 274. See also Barry v Police HC Auckland CRI-2007-488-29, 3 April 2008 at [38]; Bignell v Police [2014] NZHC 2710 at [55], citing Brown v Police HC Hamilton CRI-419-87-4, 22 October 2004; and MacMillan v Police HC Auckland CRI-2006-404-425, 14 May 2007 at [5].
[34] The question of facilitation in the context of the breath and blood-alcohol legislation was considered by a full Court of the Court of Appeal in Rae v Police, where the Court said:16
[57] It follows from the availability of the right to counsel during the entire process that the obligation of the enforcement officer to facilitate the exercise of the right, which this Court recognised in R v Mallinson [1993] l NZLR 528, also continues throughout. The obligation matches the circumstances. What is required at any particular point during the procedures will depend upon the circumstances at that time, including of course the requirements of the Act. It is not to be overlooked that it may only be when the evidential breath test result is ascertained that the motorist appreciates that an offence may have been committed. What has to be provided in that circumstance is a fair opportunity for the detained person to consider and decide whether or not to exercise the right (Mallinson at p 530). It is a question of whether the motorist has been afforded the facility “to exercise the right in a real and practicable way once there has been an indication that he or she wishes to do so”, as Neazor J put it in Steel v Police (1994) 11 CRNZ 383 at p 391.
[58] Prior to the taking of an evidential breath test a full advice of rights and active facilitation of contact with a lawyer, where the motorist evinces a wish to do so, is necessary. As a matter of now standard practice, this includes supplying a telephone in circumstances of reasonable privacy and making available and calling attention to a telephone book or a list of lawyers willing to give advice to detained motorists.
[35] In Brown v Police,17 a full Court of the High Court considered the issue of reasonable facilitation when the person concerned wished to speak to his own lawyer. The relevant telephone directory was not available at the police station. The police officer attempted to use the police system which he understood incorporated the information from the Telecom White and Yellow Pages. The police officer made several unsuccessful telephone calls endeavouring to obtain the lawyer’s number. However, he was inadvertently using a misspelling of the lawyer’s name as the appellant had not provided the officer with the correct spelling. The full Court held that, in the circumstances, the officer did adequately facilitate the request to contact the lawyer.
[36] Barry v Police,18 involved an appeal against conviction of driving with excess blood alcohol contrary to s 52 of the LTA. The appellant told the constable that he wished to speak to his lawyer in Auckland. It appeared that the constable assumed
16 Rae v Police [2000] 3 NZLR 452 (CA).
17 Brown v Police, above n 15.
18 Barry v Police, above n 15.
there was no Auckland telephone directory at the Paihia Police Station. The officer told the appellant that if he could provide the lawyer’s telephone number, he could call that lawyer, but he assumed that he would not be able to find the number. Thus, if the appellant could not provide it, he would have to talk to a local lawyer whose number the Police had. The District Court Judge found that the appellant was given the opportunity of making telephone communication with a local lawyer.
[37] It was argued on appeal that there was a breach of s 23 of NZBORA given that the appellant had expressed a desire to speak to his own lawyer in Auckland and the steps taken by the Police to facilitate such access were inadequate. In the High Court, Stephens J stated that it seemed that the breach of the appellant’s right to consult a lawyer in the circumstances of the case lay in the assumption that there was no Auckland telephone directory on hand and no other means available (such as use of the 018 service) to endeavour to track the number. The Court agreed with the District Court Judge, stating that, even if there were a breach, at worst there was “marginally an unintended breach”.19 The High Court concluded that if there were a breach, exclusion of the evidence of the blood test would be wholly disproportionate to the breach of the right that occurred.
[38] In Tawhai v Police,20 Mr Tawhai appealed his conviction in the District Court of driving a motor vehicle while the proportion of alcohol in his blood exceeded the legal limit. After being given his Bill of Rights advice, at 10 pm Mr Tawhai said he wanted to speak to a particular lawyer, Mr Lloyd. Between 10 pm and 10.26 pm the constable attempted to contact Mr Lloyd by telephone. She made some 10 calls in all without making contact. She asked Mr Tawhai if he would like to speak to another lawyer, giving him the phone book, which included the Yellow Pages, which she opened at the barristers and solicitors section for him. He maintained his refusal to speak to another lawyer. The officer then required Mr Tawhai to undergo an evidential breath test without delay. That test produced a positive result of 531 micrograms of alcohol per litre of breath.
19 At [48].
20 Tawhai v Police HC Auckland A109/02, 26 August 2002.
[39] Mr Tawhai was then told of his right to request a blood test and again advised of his right to consult and instruct a lawyer. He again said he wanted to speak to Mr Lloyd. For a second time, the constable made a series of unsuccessful attempts to telephone Mr Lloyd by trying the three numbers she had been given. Mr Tawhai again declined to utilise the telephone book to contact another lawyer, saying he only wanted Mr Lloyd. In those circumstances, Rodney Hansen J held that the officer could not reasonably have been expected to do anything more than she did to facilitate Mr Tawhai’s right to a lawyer.
[40] By contrast, in McMillan v Police,21 an appeal against conviction for excess breath alcohol, the appellant, who was new to Christchurch requested he be allowed to telephone his Auckland lawyer, a Mr Hart. The constable consulted his senior sergeant and, on his advice, declined the appellant’s request to telephone Mr Hart in Auckland, and suggested the appellant choose a lawyer from the local list. John Hansen J held that the fundamental right must be, in the first instance, the right to consult one’s own lawyer. The list has relevance where that lawyer is unavailable or in circumstances where the arrested person does not have a lawyer of their own.22 In the circumstances of that case, the Judge held there was a breach of the appellant’s rights under the NZBORA.
[41] In Macmillan v Police,23 the appellant had been charged with driving a motor vehicle with excess blood alcohol. In the District Court he gave evidence that he told the police he would like to speak to his own lawyer, and the sergeant asked him if he had the lawyer’s number with him. The appellant said he did not. Then the sergeant instructed the constable to get the duty lawyer list. Heath J agreed that the evidence was sufficient to conclude that a specific request to contact a specific lawyer was made. In that case the High Court allowed the appeal holding that the police officer had not fulfilled the obligation to facilitate contact with the named lawyer.
[42] There was a different outcome in Barrie v R.24 In that case, the appellant, having failed a breath screening test and being asked to undergo an evidential blood
21 McMillan v Police HC Christchurch A176/95, 17 August 1995.
22 At 4.
23 MacMillan v Police, above n 15.
24 Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55.
test, was told of a list of lawyers available to advise him. The appellant wanted to consult his lawyer in Sydney but could not remember his name. He was told repeatedly he could consult a local lawyer, but the appellant refused to undertake an evidential blood test because he could not contact his lawyer in Sydney. The Court of Appeal held that s 23(1)(b) of the NZBORA did not provide a detainee in the drink/drive context with an automatic right to consult a lawyer who practiced overseas.
[43] A review of the above cases confirms that there is a presumptive right to counsel of choice. This is based on the social value of freedom of choice and the view that the State should not intervene in the private and professional relationship between lawyer and client.25 This right is not absolute and is subject to reasonable and practical limitations.26 Ultimately it must always be a question of fact and common sense whether reasonable opportunity to consult counsel has been given.27 Where a motorist is informed of the right and makes a request to consult his own lawyer, the extent of the facilitation obligations on the police will turn on a range of factors including time, place and circumstances. Whether the police have adequately facilitated the exercise of the right to consult a named lawyer will be a question of fact and common sense and will depend on all the circumstances of the particular case.28
[44] Mr Haskett submits that the officer could reasonably have done more to facilitate contact with the lawyer, Ms Reid, before directing Mr Ahuja to the list of PDLA lawyers. Mr Haskett submits that there had not been a lengthy delay and the officer could easily have obtained a telephone book or carried out an Internet search for Ms Reid’s number. He submits that would have been reasonable facilitation.
[45] I do not accept that there was not reasonable facilitation. That obligation was discharged in this case. I say that for the following reasons.
[46] Mr Ahuja sought and was given permission to use his own cellphone to contact his brother. The officer did not prevent that contact being made. Mr Ahuja used his own phone, he says three or four times, the officer says four or five times in attempts
25 At [27], citing Clark v Registrar of the Manukau District Court [2012] NZCA 193.
26 At [27], citing Ministry of Transport v Noort, above n 13, and Barry v Police, above n 15.
27 At [14], citing Ministry of Transport v Noort, above n 13, at 274 and 285.
28 Barry v Police, above n 15, at [44].
to reach his brother. When he could not make contact with his brother, the officer then gave Mr Ahuja the opportunity of consulting a lawyer from the list of duty lawyers on the PDLA scheme. Mr Ahuja selected one of the lawyers. When that lawyer was unavailable, Mr Ahuja made a second selection, the officer telephoned the number and put the appellant in contact with the lawyer and left the room. The officer had thus moved to what was a viable alternative.
[47] Importantly, the District Court Judge found that at the box H stage there was nothing to suggest that Mr Ahuja was dissatisfied with being placed in contact with a duty lawyer. That finding is consistent with the entries on the breath alcohol sheet at the conclusion of the box H stage as referred to in [8] above.
[48] I accept that there were other and additional options available in terms of putting Mr Ahuja in contact with his lawyer of choice, such as providing him with a telephone book. (There was no evidence regarding this option, nor was there any evidence as to whether or not Mr Ahuja’s phone or the officer’s phone were Internet capable). However, there may be more than one way of reasonably facilitating access to a named lawyer. The Court is not required to assess, with the benefit of hindsight, what the best course of action would have been. With the benefit of hindsight, it will often be possible to suggest other actions that might have been taken to better facilitate the exercise of the s 23 right or to find fault with the actions that were taken.29 As the Court noted in Brown:
[61] It will often be possible, with the benefit of hindsight to suggest other actions that might have been taken to better facilitate the exercise of s23 rights, or to find fault with those actions that were taken. However, … the question for the Court is whether in the particular circumstances of the case reasonable action has been taken to facilitate the exercise of the rights. The issue for the Court is not whether the action taken was, with the benefit of hindsight, the best possible course of action available.
[49] Striving for perfection is not required. The test is whether, in the circumstances of the case, reasonable action was taken to facilitate the right. In my view, there was reasonable facilitation in the officer allowing Mr Ahuja to call his brother three or four times (accepting Mr Ahuja’s evidence as to the number of phone calls) to attempt to obtain Ms Reid’s telephone number.
29 Brown v Police, above n 15, at [61].
[50] Therefore, the Judge did not err in finding that there was reasonable facilitation of the right to consult a (named) lawyer prior to the evidential breath test.
Alleged breach of NZBORA at box K and L stages
[51] As is apparent from the narrative above, at the box K stage, Mr Ahuja had reverted to asking for Ms Reid. He complained about Mr Holland and did not want to speak to him. The Judge held that s 23(1)(b) was not breached at this stage, saying:
[48] Given that the defendant’s s 23(1)(b) right was sufficiently facilitated at the box H stage, in my view the ability to consult with the same duty lawyer again at the box K stage, was sufficient facilitation of this right. There was no obligation on Constable Shorn, in my view, to facilitate contact with an alternative lawyer simply because the defendant voiced dissatisfaction with the advice he had already received.
[52] Mr Haskett submits that even if there was no breach of s 23(1)(b) prior to the evidential breath test, that does not mean that Mr Ahuja was unable to try again to obtain Ms Reid’s phone number after the evidential breath test. He says it is a continuing right which is all the more important at the stage of deciding whether to elect a blood test.
[53] Mr Haskett submits a reasonable time for Mr Ahuja to try to call his brother to obtain Ms Reid’s telephone number should have been afforded. There was no evidence that Ms Reid was unavailable and that distinguishes the present case from Pasene v Police.30
[54] Mr Haskett also distinguishes Patel v Police.31 Mr Patel was unhappy about the duty lawyer at the block H stage but was subsequently offered and spoke to a different lawyer at the block K stage. In this case, Mr Haskett says Mr Ahuja was left unaided in making a decision about the fundamental right whether to do a blood test.
[55] He submits that even if the Court does not accept that Mr Ahuja should have been offered a further opportunity to contact Ms Reid, at a bare minimum he should have been offered the opportunity to contact a different duty lawyer.
30 Pasene v Police HC Auckland CRI-2009-404-211, 14 September 2009.
31 Patel v Police [2015] NZHC 2361.
[56] Mr Haskett is, of course, correct that a detainee’s right to consult a lawyer continues throughout the alcohol testing process.32 But the right is nevertheless subject to legitimate limits. A particular limit on the right is where the detainee states they are not happy with the advice received from a duty lawyer. The officer is not under an obligation to facilitate further access to additional lawyers who might be available. That is the effect of Police v Hendy.33 In Hendy, the Court rejected a submission similar to that advanced by Mr Ahuja, in these terms:
[47] Now in this case the submission is that because Mr Hendy had told the police officer he had not received helpful advice the first time from the lawyer he had telephoned in private, the officer should have offered him the opportunity to call another lawyer. That cannot be the legal right provided by the New Zealand Bill of Rights Act. …
…
[52] … It cannot be a legal requirement for a police officer to offer a person multiple lawyers if the person is not satisfied for some reason with the legal advice they have obtained when their rights have been properly facilitated.
[57] Similarly, in Patel, the Court rejected a similar submission that not only was the officer required to facilitate Mr Patel’s access to a lawyer, but once he became aware Mr Patel was dissatisfied with the advice he had received, the constable should have asked Mr Patel if he wanted to consult and instruct another lawyer. 34
[58] The Court held it was not the constable’s responsibility to ensure Mr Patel was happy or satisfied with the legal advice he received or to assess whether the advice was appropriate.
[59] I do not accept the way in which Mr Haskett distinguishes Patel when he submits that Mr Patel was offered and then spoke to a different lawyer at the block K stage. The High Court did not rely on that fact as fixing a breach:
[39] Mr Haskett’s criticism is that not only was Constable Pukeiti required to facilitate Mr Patel’s access to a lawyer but once he became aware Mr Patel was dissatisfied with the advice he had received, the constable should have asked Mr Patel if he wanted to consult and instruct another lawyer. By adopting such an approach Mr Haskett submits Constable Pukeiti would have
32 Rae v Police, above n 16, at [57].
33 Police v Hendy [2012] DCR 263; and Patel v Police, above n 31.
34 Patel v Police, above n 31 at [39]-[40].
provided Mr Patel with a “real and practicable” opportunity to exercise his s 21 rights.
[40]I do not agree. …
[60] In this case, I have found the officer adequately facilitated Mr Ahuja’s access to a lawyer at the box H stage. There was no reason for the officer to revert to steps to enable Mr Ahuja to contact Ms Reid when that earlier facilitation was adequate and Mr Ahuja had had the benefit of legal advice. Even a continuing right is subject to a reasonable limit. In my view, in the circumstances of this case, the right does not extend to further attempting to facilitate contact with Ms Reid. The only thing that had changed was that Mr Ahuja was expressing dissatisfaction with the advice he had received from Mr Holland.
[61] Mr Ahuja was not deprived of the means of seeking legal advice. As noted by Judge Lovell-Smith, the phone that Mr Ahuja had used initially to speak to the duty lawyer was still in the room and available to him during the election period if he wished to speak with Mr Holland (an experienced criminal lawyer) again. I agree with the Judge that this would have allowed Mr Ahuja to exercise his right to obtain legal advice in a real and practicable manner, had he wished to do so.
[62] I therefore find that there was no breach of the s 23(1)(b) right at the box K and L stages. It follows that there was no breach of Mr Ahuja’s right to consider a blood election under ss 70A and 77(3) of the LTA on an informed basis (Mr Haskett’s submission being that it was the breach of s 23(1)(b) that triggered breaches of those sections under the LTA).
[63] Given my findings that there was no breach of the s 23(1)(b) right at any stage, it is not necessary to address counsel’s submissions on causation.
Fairness
[64] In the District Court, Mr Haskett advanced another basis for his submission that the evidence of the evidential breath test was improperly obtained. That was because it was obtained unfairly under s 30(5)(c) and s 30(6) of the Evidence Act as it was obtained as a result of a breach of cl 5 of the Chief Justice’s Practice Note, given
that Mr Ahuja did not have the opportunity to complete his written notation at box K. The District Court Judge did not accept that submission.
[65] Mr Haskett did not pursue that argument in this Court. However, in his oral submissions, Mr Haskett argued that the evidence of the evidential breath test should be excluded under the common law discretion on the grounds of unfairness. Mr Haskett says that Mr Ahuja was deprived of the right under s 70A and s 77(3) to be provided 10 minutes without undue pressure to make an informed decision on whether or not to elect a blood test.
Analysis
[66] Section 30(5)(c) provides that evidence is “improperly obtained” if it is obtained unfairly. In Fan v R,35 the Court of Appeal held that the common law discretion to exclude evidence on the general ground of unfairness had survived the Evidence Act. When the argument of unfairness in a criminal proceeding focuses on the way in which the evidence has been obtained, admissibility will be governed by s 30 of the Evidence Act. However, when the defence argues that some other factor makes it unfair to admit evidence against the defendant, the decision as to admissibility will be governed by the Court’s continuing common law discretion. There is no formula to be applied in the exercise of the discretion.36 The Court said:
[41] We see a distinction between a detainee being under a misapprehension as to the consequences of making a statement induced by a third party, and a statement being made by a detainee while under the influence of drugs, or limited intellectual capacity, or a lack of understanding of the implications of making the statement. While in the latter cases it has been accepted that the Police were not at fault, the disability of the detainees may nevertheless have been discernible to the interviewing officer. There can be external indicia of drug consumption, mental ill health or confusion. There are good policy reasons to make Police officers aware that confessions may be excluded because of the presence of such factors in respect of the accused. Such a possibility should make Police officers more vigilant to ensure that a detainee properly understands his or her rights and understands the interview process. Even then it will be a matter of fact and degree as to whether the evidence should be excluded. However, no such policy considerations arise in relation to the quality of the legal advice earlier received by a detainee. It is quite simply impossible for a Police officer to monitor the quality of a detainee’s legal advice. ...
35 Fan v R [2012] NZCA 114, [2012] 3 NZLR 29.
36 At [36].
(footnotes omitted)
[67] The Court held in Fan that it was of particular importance in that case that the Police did nothing unfair or in any direct way use the coercive power of the State to elicit the statements from Messrs Sun and Fan. The Court said that the balancing factors set out in s 30(3) of the Evidence Act were relevant by way of analogy to the exercise of the common law discretion to exclude on the general ground of unfairness.
[68]In this case, Mr Haskett does not point to any other basis such as referred to in
[41] of Fan (set out in [66] above) apart from the alleged breach of s 23(1)(b) that would make it unfair for the evidence of the evidential breath test to be admitted. The argument as to a breach of the right to elect blood on an informed basis under ss 70A and 77 of the LTA is effectively part of Mr Haskett’s s 23(1)(b) argument. Mr Ahuja was not labouring under any physical or mental disability that would have affected his decision whether or not to elect to provide a blood sample. He had already spoken to a lawyer at the box H stage and he had the opportunity and ability to speak to that same lawyer at the box K and L stage. He elected not to do so.
[69] Referring to the s 30(3) factors that are relevant, first, as to the nature and quality of the evidence, the evidential breath test was crucial in securing Mr Ahuja’s conviction. Mr Haskett submits that the conclusive weight of the evidential breath test arises from the machinery of ss 64(4), 75A(2) and 77(1) of the LTA. He says it is a legal fiction. But that does not change the fact that, in law, the evidential breath test is conclusive evidence. This factor relates to the reliability and probative value of the evidence.37 This factor weighs against exclusion.
[70] As to the seriousness of the offence, Mr Ahuja is charged with driving with excess breath alcohol contrary to s 56(1) of the LTA. The maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding $4,500, and the court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.38 The offence is not a serious offence in the
37 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [201].
38 Land Transport Act 1998, s 56(3).
wider context.39 But this factor can “cut both ways”.40 On the one hand, the courts should exercise caution and exclude improperly obtained evidence where the offence the defendant is charged with is serious, because there is a lot on the line (serious offences carrying more serious penalties). On the other hand, there may be a greater public interest in convicting serious crimes, which weighs in favour of not excluding the improperly obtained evidence. Ultimately, this is a neutral factor.
[71] As to alternative remedies, I accept Mr Haskett’s submission that there is no alternative remedy to exclusion of the evidence. This factor weighs in favour of exclusion.
[72] In the end, Mr Ahuja made the decision not to seek further legal advice from Mr Holland. It was his decision not to seek further legal advice. But, that is not a reason for the exclusion of the evidence on unfairness grounds.
[73] For all the foregoing reasons, I do not uphold Mr Haskett’s submission that it would be unfair to admit the evidence.
Should the evidence be excluded?
[74] Although I have found that the evidential breath test was not improperly obtained in consequence of a breach of s 23(1)(b) of the NZBORA, in case I am wrong, I go on to consider whether the exclusion of the evidence is proportionate to the weight of the impropriety and the need for an effective and credible system of justice.41 The relevant factors are those in s 30(3) of the Evidence Act. I have already considered some of the factors in the context of my “unfairness” assessment above. I do not repeat them here but take them into account.
[75] First, there is the importance of the right breached and the seriousness of the intrusion. As discussed at [31] above, the right to consult a lawyer is a fundamental right. But the intrusion on that right was minimal. This is not a case where Mr Ahuja was unable to consult a lawyer. At the box H stage, he consulted a duty lawyer.
39 See Muggeridge v Police HC Tauranga CRI-2008-463-57, 2 December 2008 at [24].
40 See Hamed v R, above n 37, at [65], [187] and [239].
41 Evidence Act, s 30(2)(b).
Therefore, whilst Mr Ahuja was not able to consult his named lawyer of choice, as the Judge noted, the appellant was not left unaided or helpless. Constable Shorn provided contact with a lawyer and left the room to allow for private communication. Therefore, the intrusion was not serious. This factor weighs against exclusion.
[76] Secondly, as to the nature of the impropriety, Constable Shorn made genuine efforts to facilitate Mr Ahuja’s exercise of his rights. The officer permitted Mr Ahuja to try to contact his brother a number of times. I do not consider that there was any recklessness or bad faith. Nor do I find that he was grossly careless, as submitted by Mr Haskett. This factor weighs against exclusion.
[77] At the box K and L stages, Mr Ahuja was not prevented from contacting Mr Holland again. The means for him to do was available. At these stages, the intrusion on the right was minimal and there was no recklessness or bad faith on the part of the officer.42
[78] Thirdly, there was some urgency in obtaining the evidential breath test. The procedure is time-sensitive. There was necessarily a limited time in which each stage of the alcohol testing procedure was required to be undertaken.
[79] On balance, and if the appeal were to be decided on this basis, I would find that the s 30(3) factors weigh against exclusion of the evidence. I do not consider that this result would undermine the effectiveness or credibility of the justice system.
Conclusion
[80] The evidence was not improperly obtained under s 23(1)(b) of NZBORA nor was it unfair to admit the evidence of the evidential breath test. Even if the evidence was improperly obtained, the s 30(3) factors would weigh against exclusion of the evidence.
42 Mr Haskett made various alternative submissions on causation. He submitted that if Mr Ahuja had taken the blood test then the evidential breath test would not be admissible (s 77(3) of the LTA). However, in the end, any breach at the box K and L stages did not have a material effect on the obtaining of the evidential breath test. That is the test for “improperly obtained” under s 30(5) of the Evidence Act.
[81]Accordingly, I dismiss the appeal.
Gordon J
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