Bouwer v Police
[2021] NZHC 1388
•11 June 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-44
[2021] NZHC 1388
BETWEEN JEMAINE BOUWER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 May 2021 Appearances:
C Tuck and T Harré for the Appellant K Laurenson for the Respondent
Judgment:
11 June 2021
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
……………………………………
Solicitors / Counsel:
Mr C Tuck and Mr T Harré, Barristers, Mount Maunganui Ms K Laurenson, Crown Law, Wellington
BOUWER v POLICE [2021] NZHC 1388 [11 June 2021]
[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.
1 Land Transport Act 1998, s 56. Maximum penalty: three months’ imprisonment or a $4,500 fine.
2 Police v Bouwer [2020] NZDC 9760.
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”,
3 Criminal Procedure Act 2011, ss 232(2)(b) and 232(2)(c).
4 Section 232(4).
5 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]; and Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [16].
6 No deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important: Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [13].
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
7 27 November 1997 565 NZPD 5746.
8 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
9 Bouwer v New Zealand Police [2020] NZHC 3493 at [14]–[18].
10 At [19].
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
11 Ministry of Transport v Noort [1992] 3 NZLR 260, (1992) 8 CRNZ 114 at 283.
12 Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213. See also the High Court Amendment Rules 2021 and New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill 2020 (230-1), which both recognise and assume the existence of the court’s jurisdiction to make declarations of inconsistency as confirmed in Attorney-General v Taylor.
13 Fitzgerald v R [2020] NZSC 119, declining leave to appeal from Fitzgerald v R [2020] NZCA 292 at [84], where the majority said that New Zealand courts have yet to finally determine whether a declaration of inconsistency is an available remedy in criminal proceedings, citing Belcher v Chief Executive of the Department of Corrections [2007] NZCA 174 at [13]–[15]; Belcher v Chief Executive of the Department of Corrections [2007] NZSC 54 at [7]–[8]; R v Chatha (No 2) [2008] NZCA 466 at [32]; McDonnell v Chief Executive of Department of Corrections [2009] NZCA 352; (2009) 8 HRNZ 770 at [114]–[131]; and Attorney-General v Taylor [2017] NZCA 215; [2017] 3 NZLR 24 at [148].
14 R v Poumako [2000] 2 NZLR 695.
15 At [70] and [86]–[107].
[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 relief. This is so in terms of who the parties are, who determines questions of fact (in serious cases juries and not judges), pre-trial procedures (which do not include mutual discovery) and appeal rights (which are usually narrowly expressed and would not provide for appeal rights in relations to the granting or refusing of declarations of inconsistency). As well, there is the ever present risk of the criminal process being diverted into collateral issues.
[14] A District Court judge in a civil case would not be entitled to grant a declaration of inconsistency (as this lies outside the jurisdiction provided for in the District Courts Act 1947). Given this, there could be no principled basis for District Court judges to do so in the exercise of their criminal jurisdiction. It may be something of an accident whether a particular indictable case is heard in the District Court or High Court and irrespective of which Court hears a criminal trial, the procedures (as laid down by the Crimes Act 1961) are the same. So it would be anomalous if a High Court judge hearing a particular
16 At [41]–[43]. Henry J, in a separate judgment, agreed the minimum term was justified in any event and left open the issue of whether there should be a declaration.
17 Belcher v The Chief Executive of the Department of Corrections [2007] NZCA 174.
criminal case were to make a declaration of inconsistency whereas a District Court judge hearing an identical case and under the same statutory regime could not do so.
[15] This is not to say that the consistency or otherwise of legislation with the New Zealand Bill of Rights Act is irrelevant in criminal cases. Indeed the contrary is obviously the case, as exemplified by R v Hansen [2007] NZSC 7. It may well be necessary for courts exercising criminal jurisdiction at all levels of the hierarchy courts either to make a finding of inconsistency (as in Hansen) or perhaps to assume inconsistency where the Crown has chosen not to develop an evidential basis for a s 5 justification (as in the present case).
[16] So if a declaration of inconsistency is available (on which we express no opinion), it should be sought in a civil proceeding commenced in the High Court, a course which we think is consistent with [8] of the Taunoa judgment.
Conclusion
[17] Accordingly, we conclude that this Court does not have jurisdiction in this case to make a declaration that any provision of the Parole Act 2002 is inconsistent with the New Zealand Bill of Rights Act 1990 or the International Covenant on Civil and Political Rights. It does not, of course, follow that we are saying that a declaration of inconsistency can never be made, in appropriate circumstances and on appropriate procedure.
[21]The Supreme Court dismissed an application for leave to appeal,18 saying:
[6] As to the decision to decline a formal declaration of inconsistency: assuming, without deciding, that a declaration may be available in a criminal proceeding, we consider that it was entirely appropriate for the Court of Appeal to leave the matter in essentially the same way as it was subsequently left by the majority of this Court in R v Hansen19 where the inconsistency was described in the reasons for judgment but no declaration was made. It is also of some moment in the present case that no issue concerning s 5 was required to be determined in the necessary course of interpreting the legislation and resolving questions between the parties. A response in the form of a declaration was quite unnecessary.
[22]Soon after Belcher (No 2), the Court of Appeal said in R v Exley:20
[18] This court has already held it has no jurisdiction to make declarations of inconsistency in criminal proceedings: Belcher v Chief Executive of the Department of Corrections [2007] NZCA 174 at [16].
18 Belcher v Chief Executive of the Department of Corrections [2007] NZSC 54. See also R v Chatha (No 2) [2008] NZCA 466 at [32].
19 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
20 R v Exley [2007] NZCA 393 at [18]. See also R v McMillan [2007] NZCA 394, which was heard together with Exley.
[23] In McDonnell v Chief Executive of Dept of Corrections, the Court of Appeal summarised the position after the Belcher litigation:21
…
(a)No decision has yet been made by the Supreme Court on whether declarations of inconsistency are available in criminal proceedings. However, this Court has indicated (in an obiter comment) that they are not; a separate civil proceeding is required: see [119] above. The Supreme Court did not give leave to appeal from that decision and did not contradict that comment (though it did contradict another aspect of the decision).
(b)The preferred approach to identifying inconsistencies is to do so in the reasons for judgment, without issuing a formal declaration.
(c)A declaration will be unnecessary where s 5 of the Bill of Rights does not need to be considered in order to determine the questions at issue between the parties.
(d)There is no jurisdictional bar to the Court of Appeal granting a declaration of inconsistency where such a declaration was not first sought in the High Court but was technically available.
[24] Finding itself in substantially the same position as the Court of Appeal in Belcher (No 2), being asked to deal with the issues arising from the declaration application without the benefit of a High Court decision, the Court of Appeal in McDonnell concluded:22
[131] This Court’s decision in Belcher No 2 clearly stated that declarations of inconsistency could not be issued in criminal proceedings, and a separate civil application was required. The Chief Executive would not be the appropriate defendant in such proceedings. Efforts were made to facilitate a civil application being made in the High Court but this did not occur. Although the Supreme Court’s decision declining leave to appeal in Belcher SC includes the statement “assuming, without deciding, that a declaration may be available in a criminal proceeding”, the Supreme Court has not overruled the decision of the full Court in Belcher No 2. Indeed, the Supreme Court expressed the view that it was unnecessary to make a declaration in the Belcher case and that the way the matter was left in this Court was “entirely appropriate”. No civil application was made in this case. In those circumstances we reiterate the position set out in Belcher No 2 and decline the application for a declaration of inconsistency.
21 McDonnell v Chief Executive of Dept of Corrections [2009] NZCA 352; (2009) 8 HRNZ 770 at [123].
22 At [131].
[25] More recently, and since the enactment of the Criminal Procedure Act 2011 (CPA), the issue of a declaration of inconsistency in criminal proceedings arose again in Fitzgerald v R.23 The majority said:
[84] The Supreme Court has confirmed that a declaration of inconsistency is an available remedy in civil proceedings. But New Zealand courts have yet to finally determine whether a declaration of inconsistency is an available remedy in criminal proceedings.
[85] In this case there is the further issue that a declaration was not sought in the High Court: the issue arose for the first time in the course of argument in this Court. The Crown says that it is not open to this Court to make a declaration of inconsistency in the context of an appeal against conviction or sentence under the CPA. The CPA sets out in some detail the orders that may be made in determining such appeals. A declaration of inconsistency is not one of the available outcomes expressly contemplated by that Act, except perhaps where an appeal against conviction is allowed and the conviction is set aside: in those circumstances s 233(3)(e) provides for the court to make any other order it considers justice requires. But in this case we have decided that the conviction should not be set aside, so the power conferred by s 233(3)(e) is not available. That raises the question whether, where an appeal against conviction under the CPA is dismissed, this Court can grant a declaration of inconsistency.
[86] The Crown identified a number of other difficulties with this Court considering the grant of a declaration of inconsistency as a matter of first impression. There may be cases where evidence is required to determine whether a provision is inconsistent with NZBORA; for example, where the Crown wishes to argue that the provision is justified under s 5 of NZBORA. Discovery may be required in some cases. There would be no appeal as of right from the determination by this Court. It is also generally undesirable for this Court to engage in determining significant public law issues without the benefit of a judgment from the High Court. Some of the difficulties identified by the Crown are not relevant to the present appeal. The question of inconsistency with NZBORA can be, and has been, determined without the need for discovery or further evidence. But other concerns raised by the Crown have more force.
[87] As against this, it can be argued that a declaration provides important vindication of an appellant’s rights. That vindication is arguably more, not less, important where s 4 of NZBORA applies with the result that the Court is required to give effect to a rights-infringing statute, and dismiss the appeal. 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.
23 Fitzgerald v R [2020] NZCA 292.
[88] These are important issues that remain to be considered by this Court. It would in our view 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 CPA.
(footnotes omitted)
[26] The Supreme Court declined leave to appeal against the Court of Appeal’s refusal to grant a declaration of inconsistency in respect of s 86D(2) of the Sentencing Act 2002.24 The Court was not satisfied it was a suitable case to consider whether there is jurisdiction to make a declaration of inconsistency in the context of criminal appeals. It said that Mr Fitzgerald did not initially seek a declaration in either Court below, and the Supreme Court did not have the benefit of the opinion of the Court of Appeal given after hearing oral argument on the point.25
[27] Some of the difficulties raised by the Crown and referred to by the Court of Appeal in Fitzgerald apply here and others do not. Here, there is no issue about discovery or evidence to address whether the limit is justified in terms of s 5. The declaration has been sought in this Court on an appeal under pt 6 of the CPA,26 in circumstances where the District Court was the trial court and had no power to make a declaration of inconsistency, and there is no further appeal as of right.
[28] In addition, Ms Laurenson noted the party issue referred to in Belcher (No 2).27 Here, the respondent is the New Zealand Police. The Attorney-General does not normally take a role in criminal cases whereas the Attorney-General may do so in Bill of Rights cases, especially when it is sought to justify the limit in terms of s 5.
[29] The question for this Court, at least pending further consideration by the Court of Appeal as foreshadowed in Fitzgerald, is whether the current law in relation to this Court’s jurisdiction to grant a declaration of inconsistency in criminal proceedings remains as stated by the Court of Appeal in Belcher (No 2), Exley and McDonnell. That is, an inconsistency with NZBORA may be described in the reasons for judgment
24 Fitzgerald v R [2020] NZSC 119. The Supreme Court granted leave in relation to the interpretation of s 106 of the Sentencing Act 2002 in the context of third strike offences.
25 At [3]. The Court of Appeal had called for further submissions but had not held a further hearing.
26 Sections 232(2)(b) and 232(2)(c).
27 Belcher v The Chief Executive of the Department of Corrections [2007] NZCA 174 at [13].
in a criminal proceeding but, if a formal declaration of inconsistency is sought, it should be in a civil proceeding commenced in this Court. While the Court of Appeal in McDonnell described that conclusion in Belcher (No 2) as an obiter comment, it went on to reiterate the position. The majority in Fitzgerald has outlined considerations for and against that conclusion, including an important access to justice consideration against requiring separate proceedings, and said it would be desirable for a full court of the Court of Appeal to hear and determine an appeal which squarely raises the question.
[30] I consider it would not be appropriate for me to embark on analysis of the competing considerations referred to in Fitzgerald in order to reach my own conclusion. Even if the legal conclusions in the appellate authorities of Belcher (No 2) and McDonnell are not strictly binding because of the way those cases presented on appeal, they clearly state that declarations of inconsistency cannot be issued in criminal proceedings, and a separate civil application is required. Exley also states that is the law without any reservation because of the way the issue had arisen on appeal.28 I consider that is the current law pending reconsideration by the Court of Appeal.
[31] Even if there is jurisdiction to grant a formal declaration of inconsistency in a criminal proceeding, the remaining question is whether a declaration should be granted in the circumstances of this case.
Whether a declaration should be granted
[32] Mr Tuck emphasised Ms Bouwer’s concern for vindication. In relation to the prosecution case, the Judge’s findings in relation to the disputed facts provided that. The Judge determined that Ms Bouwer had not been driving with her sister that morning. Rather, as she admitted, she drank approximately four mouthfuls from a bottle while sitting in her vehicle before driving home. In relation to the excess breath alcohol conviction based on the presumption, Mr Tuck also emphasised that Ms Bouwer had moved to New Zealand from South Africa. Ms Bouwer clearly felt
28 I acknowledge that Exley was an appeal against sentence, where the outcomes on appeal are even more narrowly prescribed.
aggrieved that s 77 has the effect that her breath alcohol level recorded at home a little later should be presumed to be her breath alcohol at the time she drove home. I also acknowledge the significance of the presumption of innocence. As McGrath J said in R v Hansen, the presumption of innocence has long been seen as the core value in the criminal justice system.29
[33] Even so, if I had concluded there is jurisdiction to grant a formal declaration in a criminal proceeding, I do not consider the circumstances of this case require one, for the following reasons.
[34]First, Parliament is already aware of the inconsistency given the Attorney-
General’s s 7 report on the Land Transport Bill in 1997.30
[35] Secondly, the inconsistency is evident in the reasons for judgment in this Court. Moore J has already concluded that s 77 cannot be interpreted narrowly so as to be inapplicable in this case. This judgment has now recorded that the respondent did not attempt to argue that s 77 is a justified limit on the right to be presumed innocent until proved guilty. 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 in relation to s 5 that I should assume inconsistency as the respondent has chosen not to develop an evidential basis for a s 5 justification, making that distinction as in Belcher (No 2).31 In that sense, the inconsistency with NZBORA is described in the reasons for judgment (as in a Hansen indication). A formal declaration would, however, elevate the assumption into a finding, which would not be appropriate in this case.
[36] Thirdly, as indicated, Ms Bouwer accepts that inconsistency with NZBORA has no effect in relation to the outcome of her appeal against conviction. I have addressed her concern for vindication and consider a declaration would have no utility.
29 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [193].
30 Attorney-General Report of the Attorney-General on the Land Transport Bill (26 November 1997).
31 Belcher v The Chief Executive of the Department of Corrections (No 2) [2007] NZCA 174 at [15].
[37] Finally, I consider these same considerations would apply if this were a civil proceeding. This is not a case where an access to justice barrier may preclude relief. Indeed, it is possible that if civil proceedings were issued, an evidential basis for a s 5 justification may be advanced.
[38] Therefore, even if I had considered that the Court has jurisdiction to grant declarations of inconsistency in a criminal proceeding, I would have declined to grant a declaration of inconsistency in this case.
Result
[39]The appeal is dismissed.
Gault J
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