Bouwer v Police
[2022] NZCA 166
•6 May 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA344/2021 [2022] NZCA 166 |
| BETWEEN | JEMAINE BOUWER |
| AND | NEW ZEALAND POLICE |
| Hearing: | 10 March 2022 |
Court: | Brown, Clifford and Courtney JJ |
Counsel: | T D A Harré and X Wang for Appellant |
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 with a view to obtaining a declaration that s 77 of the Land Transport Act was inconsistent with s 25 of the New Zealand Bill of Rights Act 1990 (NZBORA). But that issue was not, as it could not be, for consideration in the District Court.
On that basis, Judge Mabey determined a dispute of facts, which he did so in Ms Bouwer’s favour,[3] and then convicted her.[4] The Judge ordered Ms Bouwer to pay a fine of $450 and costs of $130, and disqualified her from driving for six months.
Appeal to the High Court
[3]The summary of facts originally recorded that Ms Bouwer had admitted to police she had been drinking “with her sister” earlier on the day in question. Ms Bouwer accepted that summary except for those words. The Judge, having received evidence on that point, was satisfied Ms Bouwer had not told police she had been drinking with her sister and ordered those words to be removed from the summary.
[4]Police v Bouwer [2020] NZDC 9760 at [35].
Ms Bouwer duly filed her notice of appeal in the High Court. By way of relief she asked the High Court to:
(a)interpret s 77 of the Land Transport Act consistently with NZBORA; and
(b)quash her conviction; or
(c)declare s 77 inconsistent with s 25 of NZBORA.
The High Court decided the appeal against conviction, based on the interpretation argument, would be heard first. If that appeal was allowed, Ms Bouwer’s conviction would be quashed. On the other hand, if that appeal was dismissed there would be a further hearing of Ms Bouwer’s application for a declaration of inconsistency. Were that stage to be reached the issues would be:
(a)whether the High Court had jurisdiction to make such a declaration in criminal proceedings;
(b)if it did, was s 77 an unjustified limitation on an accused’s right to be presumed innocent until proven guilty and, if so, whether in the relevant circumstances a declaration was appropriate relief for Ms Bouwer.
We note that the position of the Crown throughout has been to acknowledge that s 77 of the Land Transport Act is inconsistent with s 25 of NZBORA. That acknowledgement, which the Crown confirmed at the hearing of this leave application, reflects the advice the Attorney‑General gave to Parliament at the time s 77 was enacted.[5] So, the issues would be those of jurisdiction to make such a declaration and the appropriateness of doing so in the circumstances.
[5]Paul East Report of the Attorney-General on the Land Transport Bill (26 November 1997).
Ms Bouwer’s conviction appeal was heard by Moore J in December 2020.[6]
[6]Bouwer v Police [2020] NZHC 3493.
The Judge was satisfied that the wording and legislative history of s 77 did not allow for the alternative, narrower, construction Ms Bouwer argued for.[7] The section was not limited, as Ms Bouwer had argued, to the circumstances of what were colloquially known at the time as the “hip flask” defence, that is one where the defendant says the offending breath alcohol level was caused by drinking after the event. Here Ms Bouwer’s proposed defence was that even though she had consumed alcohol before driving, and when tested she had had excess breath alcohol, nevertheless — based on scientific evidence she would present — that could not have been her breath alcohol level when driving, given the very short period of time that had elapsed since her drinking the wine, driving to her nearby home and getting out of her vehicle. The Judge considered that defence would have been intended by Parliament to be captured by s 77.[8]
[7]At [14]–[17].
[8]At [18].
Moore J therefore held Ms Bouwer’s conviction should stand and dismissed her conviction appeal.[9]
[9]At [19].
The question of the declaration of inconsistency then came before Gault J. The Judge treated the matter as a first appeal against conviction in terms of s 232(2) of the Criminal Procedure Act 2011.
The Judge first noted the authorities of this Court which have found that declarations of inconsistency could not be issued in criminal proceedings, but that a separate civil application was required.[10] He then referred to the following more recent comments of the majority of this Court in Fitzgerald v R as to the availability and utility of such a declaration, as opposed to an indication of inconsistency:[11]
Where the Court hearing a criminal appeal concludes that a statute is inconsistent with NZBORA, it is not easy to see what practical purpose is served by requiring the appellant to commence separate civil proceedings in order to obtain a formal declaration of inconsistency. There are obvious barriers to doing so, not least the cost of such proceedings and uncertain access to legal aid: the ability to obtain a declaration in the context of a criminal appeal would undoubtedly enhance access to justice. In Attorney-General v Taylor the Supreme Court confirmed that the grant of a declaration serves a useful purpose over and above an indication of inconsistency.
[10]Belcher v Chief Executive of the Department of Corrections [2007] NZCA 174 at [13]–[16] per William Young P, Chambers, O’Regan and Robertson JJ (Hammond J reserving his position); R v Exley [2007] NZCA 393 at [18]; and McDonnell v Chief Executive of Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [123].
[11]At [25], quoting Fitzgerald v R [2020] NZCA 292 at [87] per Clifford and Goddard JJ (footnotes omitted).
The majority then recorded its view that it would be desirable for a Full Court of this Court to hear and determine an appeal which “squarely raises” the question whether a declaration of inconsistency can be sought in the context of an appeal under pt 6 of the Criminal Procedure Act.[12]
[12]At [88] per Clifford and Goddard JJ.
The Judge concluded that as the law currently stood there was no jurisdiction in criminal proceedings to grant declarations of inconsistency.[13] Moreover, even if there was jurisdiction, the Judge did not consider a declaration would be appropriate.[14] He reached that conclusion by reference to the following factors:
(a)In 1997, the Attorney‑General himself had reported to Parliament pursuant to s 7 of NZBORA that cl 117 of the Land Transport Bill, which is now s 77 of the Land Transport Act, placed an unjustified limit on the right to the presumption of innocence affirmed by s 25(c) of NZBORA.[15]
(b)The Judge had recorded the Crown’s position as accepting, in line with the Attorney‑General’s report, that s 77 was an unjustified limitation on Ms Bouwer’s s 25(c) right. A finding of inconsistency was unnecessary in those circumstances.[16]
(c)As Ms Bouwer had accepted, a declaration of inconsistency could have no effect in relation to the outcome of her conviction appeal.[17]
Leave to appeal
[13]Gault J decision, above n 1, at [30].
[14]At [33].
[15]At [34].
[16]At [14] and [35].
[17]At [36].
Ms Bouwer applied to this Court for leave to appeal Gault J’s decision. She did so as an appeal against her conviction. The reasons she gave as to why this Court should grant leave were as follows:
This appeal turns on a novel point of law. The issue is whether the irrebuttable presumption in s 77 [of the] Land Transport Act is contrary to rights protected by the NZBORA.
There is an additional issue of whether declarations of inconsistency are available within the criminal jurisdiction — the Court of Appeal has previously considered this issue in Fitzgerald v R, and held that this was an important issue that should be considered by a full bench of the Court of Appeal.
Submissions
For Ms Bouwer, Mr Harré noted the technical difficulties presented by the statutory framework for criminal appeals found in the Criminal Procedure Act for his argument as to jurisdiction. Put simply, Mr Harré accepted on its face this is not a pt 6, sub-pt 3 conviction appeal. Ms Bouwer was not seeking leave for a second appeal against her conviction. Rather she sought to appeal Gault J’s determination declining a declaration. In that context, Mr Harré suggested before us that there may be an answer to that jurisdictional difficulty which he had not relied on before. That is, it might be possible to characterise Ms Bouwer’s appeal as a first appeal on a question of law in terms of pt 6, sub-pt 8 of the Criminal Procedure Act. However, in doing so Mr Harré also accepted that s 296, which provides such a right of appeal, was on its face inapplicable here: Gault J’s determination was not an appeal “on a question of law against a ruling by the trial Court”.[18]
[18]Criminal Procedure Act 2011, s 296(2).
But, endorsing the observations of this Court in Fitzgerald, Mr Harré emphasised the significant vindication for Ms Bouwer personally of a declaration of inconsistency. He also emphasised the public importance, from an access to justice point of view, of the Court hearing a criminal appeal against conviction based on NZBORA arguments also being able to hear an application for a declaration of inconsistency.
For the Crown, Ms Laracy supported the traditional view that declarations of inconsistency could not be made by this Court in its appellate jurisdiction as provided by the Criminal Procedure Act. As Ms Bouwer’s conviction appeal to the High Court, and her application for leave to appeal to this Court, were brought under that Act, the “difficulties” Mr Harré had acknowledged meant this Court lacked jurisdiction to hear Ms Bouwer’s proposed appeal. Ms Laracy also endorsed Gault J’s assessment that, even if jurisdiction did exist, this was not a case suitable for leave. There was, in reality, nothing at issue as regards s 77’s inconsistency with NZBORA. For that reason also, leave should be declined.
Analysis
This Court may only grant leave for a second appeal against conviction where it is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[19]
[19]Section 237(2).
It goes without saying that the question of availability of declarations of inconsistency in criminal proceedings is a matter of significant public importance. This Court’s recent comments in Fitzgerald as to the desirability of that jurisdictional question being considered by a Full Court confirm that observation.
As reflected in the submissions we heard, Ms Bouwer’s leave application can be seen as first raising the question of jurisdiction and, secondly, as engaging the traditional discretionary factors applicable to its exercise. But the substance of the appeal which this Court in Fitzgerald saw as warranting the attention of a Full Court is an issue of jurisdiction, if not the very same one as would be considered at the leave stage. On that basis determining, or purporting to determine, jurisdiction at the leave stage would in our view not be appropriate. Rather, we think this leave application should be determined by reference to the discretionary factors and, in particular, whether an appeal by Ms Bouwer against Gault J’s decision would be an appropriate context for the determination of the jurisdictional question.
In our view the answer to that question is no. We say that for the following reasons.
In line with the Attorney‑General’s report to Parliament as to the apparent inconsistency of s 77 with the s 25(c) NZBORA affirmation of the right to the presumption of innocence, there has in Ms Bouwer’s case from the outset been no contest on the question of inconsistency. Nor is there any challenge to the High Court decision of Moore J that a rights-consistent interpretation of s 77 is not available.
There being no dispute as to the fact of inconsistency, Mr Bouwer’s case would only provide for a theoretical assessment of the benefit of a declaration of inconsistency, as opposed to an indication of inconsistency, as regards issues of vindication and access to justice. An appeal where the question of inconsistency was at issue, so that the question of the significance — for a particular defendant of a declaration as opposed to an indication — was a real one would enable the competing points of view to be better ventilated and assessed.
In our view the same consideration applies as to the suitability of an appeal by Ms Bouwer for an appellate assessment of the jurisdictional issues in the context of the obvious procedural and substantive barriers presented by the terms of the Criminal Procedure Act, and the inherent focus in the criminal jurisdiction on the question of proof of guilt. A real contest as to inconsistency, and the light that could throw on the end of day assessment of the strength or otherwise of those “pathway” arguments, will be an important element of the determination of the jurisdictional question.
In the round, therefore, we are not persuaded an appeal by Ms Bouwer would, in terms of Fitzgerald, “squarely raise” that jurisdictional question.[20]
Result
[20]Fitzgerald v R, above n 11, at [88] per Clifford and Goddard JJ.
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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