Judge-alone trial — excess breath alcohol — right to consult lawyer — right to privacy — improperly obtained evidence — drink driving — reasonable person test — Evidence Act 2006, s 30 — Police v Duncan [2019] NZDC 8783, [2019] DCR 852 — R v Hennessey [2009] NZCA 363 — Police v Kohler [1993] 3 NZLR 129 — Robertson v Police HC Auckland AP 366/92, 22 February 1993 — Tamatea v Police HC Auckland A 135/00, 9 November 2000. The defendant faced one charge of driving with excess breath alcohol, having produced a reading of 1311mcg in an evidential breath test. She sought to have the evidence thrown out as improperly obtained evidence on the basis that her fundamental right to consult a lawyer in private had been breached. She had been apprehended by police, read her rights, and was left by the two constables to call her lawyer from the police car while the constables waited outside the car three meters away. She claimed that it was possible that the constables could have heard her, or at the least their presence made her feel uncomfortable such that she was not able to communicate freely with her lawyer. The test was whether, objectively, a reasonable person would have concluded that the defendant's right to privacy was fully afforded, not whether the defendant subjectively thought her right to privacy was impaired. The Judge looked at decided cases on the matter and concluded it was most analogous to the case of Tamatea v Police, where the defendant had been in a phone booth in the police station, but there was background noise such that he had to speak loudly so as to be heard by his lawyer. In that case, the defendant's right to consult a lawyer in private had not been breached, as he could not hear what was being said outside the booth so it was unlikely that he could be heard through soundproofed booth even when he was speaking loudly. The Judge here concluded that a reasonable person would not have thought that the defendant's right had been breached, as the constables would not have been able to hear her, and there was no suggestion that they could lip read. The Judge therefore held the evidence to be admissible and found the charge proven beyond a reasonable doubt. Judgment Date: 11 December 2020