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…
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