Bouwer v Police

• Jurisdiction: New Zealand
• Judge: Gault J
• Judgment Date: 11 June 2021
• Neutral Citation: [2021] NZHC 1388
• Docket Number: CRI-2020-463-44
• Court: High Court

Between

Jemaine Bouwer

Appellant

and

New Zealand Police

Respondent

[2021] NZHC 1388

Gault J

CRI-2020-463-44

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

Criminal Procedure — application for a declaration that the presumption relating to alcohol testing under the Land Transport Act 1998 was inconsistent with the right to be presumed innocent until proved guilty according to law under the New Zealand Bill of Rights Act 1990 — the appellant was breath tested at her property — “hip flask defence” — the appellant argued she was not over the limit at the time of driving and had consumed alcohol once she had arrived home — whether the Court had jurisdiction to make a formal declaration of inconsistency in a criminal proceeding

Appearances:

C Tuck and T Harré for the Appellant

K Laurenson for the Respondent

JUDGMENT OF Gault J

This judgment was delivered by me on 11 June 2021 at 3.15 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

1 Ms Bouwer appeals against her conviction on one charge of driving with excess breath alcohol under s 56 of the Land Transport Act 1998 (LTA). 1 She was convicted by Judge P G Mabey QC in the District Court at Tauranga on 2 June 2020 based on the conclusive presumption in 77(1) of the LTA that the alcohol in the defendant's breath at the time of the alleged offence was the same as that indicated by the test. 2

2 On appeal, Mr Tuck, for Ms Bouwer, seeks a declaration that s 77 of the LTA is inconsistent with the right to be presumed innocent until proved guilty according to law enshrined in s 25(c) of the New Zealand Bill of Rights Act 1990 (NZBORA).

Facts

3 On 28 November 2019 at around 12:08 pm, Ms Bouwer drove a motor vehicle in Papamoa. She was seen drinking from a wine bottle while seated in the vehicle near a playground. She was observed to have approximately four mouthfuls from the bottle. Ms Bouwer was then seen getting out of the car and disposing of the wine bottle in a rubbish bin. She then drove away.

4 Police visited Ms Bouwer's home approximately 15–20 minutes later. She answered the door and admitted to having consumed some wine earlier that day. Police breath tested Ms Bouwer and the reading was 483 micrograms of alcohol per litre of breath.

5 Ms Bouwer stated that she had been drinking wine prior to driving home. While driving home she had stopped to dispose of the wine bottle so that her husband did not know that she had been drinking during the day. She had taken a couple of mouthfuls just prior to placing the bottle in the rubbish bin. She also said she had not driven on a highway as she was so close to home.

6 On a later date, she said she would not have been over the legal limit at the time of driving. She said this would have resulted from her further consumption of alcohol following arrival at home.

District Court decision

7 In the District Court, Ms Bouwer's counsel, Mr Harré, acknowledged that the Judge was bound by the s 77 presumption and signalled that in this Court he would raise issues under NZBORA. Having heard evidence and resolved a narrow issue of disputed fact in Ms Bouwer's favour, Judge Mabey concluded that the s 77 presumption excluded a defence in the District Court and convicted Ms Bouwer.

Approach on appeal

8 In the case of a first appeal against conviction following a judge-alone trial, the appellate court must allow the appeal if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any (other) reason. 3 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity. 4

9 This appeal is by way of rehearing. 5 The appellate court has the responsibility of considering the merits of the case afresh. The appellate court must be persuaded that a miscarriage has occurred, but the weight it gives to the reasoning of the court below is a matter for the appellate court's assessment. 6

First High Court decision

10 On appeal in this Court, the parties agreed that the Court should first consider the interpretation of s 77 to see if it could be interpreted consistently with NZBORA. Justice Moore heard that issue. Mr Tuck, for Ms Bouwer, submitted that s 77 could be interpreted narrowly to exclude all circumstances other than the “hip flask defence”,

whereby people claim to have had a drink to steady their nerves after a crash or other incident, which was referred to by the Minister introducing the Bill in Parliament. 7

11 Justice Moore referred to the approach to be taken when considering whether the interpretation of an enactment is consistent with the rights and freedoms in NZBORA as set out in R v Hansen, 8 and found that s 77 could not be interpreted narrowly. Justice Moore considered that s 77 is not limited to the “hip flask defence”; it applies also to drinking after being apprehended (to throw the result into doubt) and to drinking immediately before driving (the argument that the alcohol would not have taken effect). 9

12 Justice Moore directed a further hearing to consider the jurisdictional question as to whether or not a declaration of inconsistency could be made. 10

Issues remaining

13 At this hearing, Mr Tuck confined the relief sought to a declaration of inconsistency with NZBORA. He accepted that this Court could not allow the appeal and quash the conviction. That is correct given s 4 of NZBORA, which provides that:

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

• (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

• (b) decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

14 It is common ground between the parties that the conclusive presumption in s 77 of the LTA places a limit on the right to be presumed innocent until proved guilty according to law enshrined in s 25(c) of NZBORA. Furthermore, the respondent does not attempt to argue that s 77 is a justified limit in terms of s 5 of NZBORA, accepting it bears the onus in relation to s 5 in circumstances where an enactment places a limit

on an NZBORA right. 11 Therefore, it is common ground that s 77 is inconsistent with the right to be presumed innocent until proved guilty according to law enshrined in s 25(c) of NZBORA. In these circumstances, it is unnecessary to make a finding of inconsistency, but it follows from the onus that I should assume inconsistency as the respondent has chosen not to develop an evidential basis for a s 5 justification

15 It is also common ground that this Court may grant a formal declaration of inconsistency in a civil proceeding, following Attorney-General v Taylor. 12 The issues remaining for determination are whether a formal declaration of inconsistency is available in a criminal proceeding and, if so, whether one should be granted in this case.

Declarations of inconsistency in criminal proceedings

16 Mr Tuck submitted that this Court should determine that a formal declaration of inconsistency is available in a criminal proceeding. He acknowledged the issue is not settled as the Supreme Court declined to decide it recently in Fitzgerald v R. 13

17 Mr Tuck relied on the judgment of Thomas J in the Court of Appeal in R v Poumako, a criminal case involving the application of another minimum standard of criminal procedure enshrined in s 25 of NZBORA (the right to the lesser penalty where it has changed since the commission of the offence) to a legislative amendment concerning a new minimum period of imprisonment for murder involving home invasion. 14 In a strongly worded judgment, Thomas J was prepared to grant a formal declaration of inconsistency. 15

18 However, the Court of Appeal's majority judgment in Poumako refrained from expressing a final view on the prior question of the construction of the legislative amendment as that was unnecessary because the minimum term was justified on the facts. The majority did not address the question of whether there should be a declaration of inconsistency (which it said was canvassed only briefly in argument). 16

19 Ms Laurenson, for the respondent, submitted that a declaration of inconsistency is not available in criminal proceedings, and that Ms Bouwer would need to commence a separate civil proceeding in this Court seeking a declaration of inconsistency. Ms Laurenson submitted the leading case is Belcher v The Chief Executive of the Department of Corrections ( Belcher (No 2)). 17

20 In Belcher (No 2), the Court of Appeal was asked to declare that the extended supervision order regime was incompatible with NZBORA. In relation to whether a declaration of inconsistency can properly be sought in criminal proceedings, the majority of the Court, in a judgment given by Williams Young P, stated:

[13] Criminal proceedings can be dealt with at first instance summarily in the District Court or indictably in both the District Court and High Court. In the course of determining criminal proceedings, courts, including the District Court, sometimes give relief for breaches of the New Zealand Bill of Rights Act, usually in the form of excluding evidence. But this is “criminal relief” and it is unheard of for the courts hearing criminal cases to grant what is truly civil relief, for instance Baigent damages. This [sic] reasons for this are obvious. Criminal procedures, as laid down by statute, are appropriate for the determination of criminal proceedings but not for the granting of civil...