Bouwer v Police - [2022] NZCA 166

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA344/2021
[2022] NZCA 166

BETWEEN	JEMAINE BOUWER Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 March 2022
Court:	Brown, Clifford and Courtney JJ
Counsel:	T D A Harré and X Wang for Appellant M F Laracy, K Laurenson and FESF Girgis for Respondent
Judgment:	6 May 2022 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

This is an application for leave to appeal a decision of Gault J in the High Court declining Ms Bouwer’s application for a declaration of inconsistency as regards the presumption of tested breath alcohol content found in s 77 of the Land Transport Act 1998.[1] To determine this application we need to consider two questions:
(a)do we have jurisdiction to hear an appeal against a decision of the High Court in criminal proceedings that it has no jurisdiction in such proceedings to make a declaration of inconsistency; and
(b)if we do, is this an appeal for which leave should be given?

Background

[1]Bouwer v Police [2020] NZHC 1388 [Gault J decision].

In late 2019 Ms Bouwer was charged with driving with excess breath alcohol.[2] The circumstances giving rise to that charge were as follows.
[2]Land Transport Act 1998, s 56(1).
Ms Bouwer was observed by a member of the public drinking wine from a bottle in a vehicle whilst parked at the side of the road. She then put the bottle in a rubbish bin and drove off. The witness reported these facts to the police. Some 15 to 20 minutes later the police spoke to Ms Bouwer at her home, a short distance from where she had been observed drinking. As a result breath testing procedures were administered. An evidential breath test gave a reading of 483 micrograms of alcohol per litre of breath.
The charge was heard in the District Court at Tauranga on 2 June 2020 before Judge Mabey QC. Mr Harré, then as now counsel for Ms Bouwer, told the Judge Ms Bouwer’s explanation, and defence, was that she had not been intoxicated at the time of driving. Rather, the alcohol detected in her breath was assimilated after she had arrived home. But, Mr Harré acknowledged, on its face s 77 of the Land Transport Act precluded that defence. That section provides:
77 Presumptions relating to alcohol-testing
(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.
Mr Harré therefore advised the Judge his intention was to take the inevitable resulting conviction on appeal to the High Court…

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.

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Details

Case: [2022] NZCA 166
Decision Date: 6 May 2022 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Bouwer sought leave to bring a second appeal against a decision of the High Court declining her application for a declaration of inconsistency regarding the presumption of tested breath alcohol content in s 77 of the Land Transport Act 1998. The court needed to decide whether it had jurisdiction to hear an appeal against a decision of the High Court in criminal proceedings that it had no jurisdiction in such proceedings to make a declaration of inconsistency, and if so, whether leave should be granted. Bouwer's conviction appeal was dismissed by Moore J in December 2020, and Gault J declined Bouwer's application for a declaration of inconsistency. Bouwer applied for leave to appeal Gault J’s decision, arguing that the irrebuttable presumption in s 77 of the Land Transport Act was contrary to rights protected by the New Zealand Bill of Rights Act 1990. The Crown argued that declarations of inconsistency could not be made by the Court in its appellate jurisdiction as provided by the Criminal Procedure Act. The Court concluded that determining jurisdiction at the leave stage would not be appropriate and that an appeal by Bouwer would not "squarely raise" the jurisdictional question.

The Court of Appeal declined the application for leave to bring a second appeal.

Orders