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Bouwer v Police

Bouwer v Police

Case [2021] NZHC 1388 11 June 2021

Jurisdiction

Constitutional Validity

Presumption of Innocence

Inconsistency with Rights

Access to Justice

Criminal Law

Constitutional Law

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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…

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.

Continue reading Bouwer v Police

Details

AGLC: Bouwer v Police [2021] NZHC 1388
Case: [2021] NZHC 1388
Decision Date: 11 June 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Jemaine Bouwer appeals against her conviction for driving with excess breath alcohol under section 56 of the Land Transport Act 1998. The appeal focuses on the application of the conclusive presumption in section 77 of the Act, which equates the alcohol content in a defendant's breath at the time of the alleged offence with the alcohol content indicated by a breath test. Bouwer argues that section 77 is inconsistent with the right to be presumed innocent until proved guilty, enshrined in section 25(c) of the New Zealand Bill of Rights Act 1990 (NZBORA). The court considered whether a declaration of inconsistency with NZBORA could be made in a criminal proceeding. Relying on authorities such as Belcher v The Chief Executive of the Department of Corrections and R v Exley, the court concluded that such a declaration is not available in criminal proceedings and should be sought in a civil proceeding. Even if the court had jurisdiction to grant such a declaration, it declined to do so, considering the reasons for judgment had already described the inconsistency, and a declaration would not be appropriate in the circumstances of this case. The appeal was dismissed.

Orders