Bouwer v Police
[2020] NZHC 3493
•22 December 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-000044
[2020] NZHC 3493
BETWEEN JEMAINE BOUWER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 December 2020 (Heard at Tauranga) Appearances:
Craig Tuck for the Appellant
Briar Charmley for the Respondent (via telephone)
Judgment:
22 December 2020
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 22 December 2020 at 11:00 am.
Registrar/ Deputy Registrar Date:
BOUWER v NEW ZEALAND POLICE [2020] NZHC 3493 [22 December 2020]
Introduction
[1] Ms Bouwer appeals against one conviction for driving with excess breath alcohol.1 The appeal turns on the breadth of s 77 of the Land Transport Act 1998 (“LTA”). The parties are agreed that if, as the appellant contends, s 77 is to be construed narrowly, the appeal should be allowed, Ms Bouwer’s conviction quashed and the charge remitted back to the District Court for re-hearing.
[2] However, in the event this Court determines the respondent’s broader interpretation of s 77 is correct, the conviction stands and the next procedural step would be for a further hearing on the jurisdictional question of whether a declaration of inconsistency should be made and whether s 77 amounts to a justified limitation.
Facts and history
[3] On 28 November 2019, Ms Bouwer was seen by a member of the public drinking from a wine bottle whilst sitting in her vehicle. She disposed of the bottle, got back into her car, and drove a short distance home.
[4] About 20 minutes later Police arrived at her home. She admitted to having consumed wine earlier. She performed an evidential breath test which returned a reading of 483 micrograms of alcohol per litre of breath. In her explanation to the Police, she stated that she would not have been over the legal limit at the time of driving, and that she had consumed more alcohol when she got home.
[5] Ms Bouwer was charged with driving with excess breath alcohol under s 56(1) of the LTA. As a result of s 77 of the LTA, she was convicted.2 Ms Bouwer appeals her conviction, requesting that the High Court:
(a)declare s 77 inconsistent with s 25 of the New Zealand Bill of Rights Act 1990 (“BORA”);
(b)interpret s 77 consistently with the BORA; and
1 Bouwer v New Zealand Police HC Tauranga CRI-2020-463-44, 20 August 2020.
2 New Zealand Police v Bouwer [2020] NZDC 9760.
(c)quash her conviction.
[6] van Bohemen J directed that the question of whether s 77 can be interpreted consistently with the BORA should be addressed before any further hearing.
Analysis
[7]Section 77 of the LTA provides that:
“(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.
(2)For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72 or section 73, it is to be conclusively presumed that the proportion of alcohol in the defendant’s blood at the time of the alleged offence was the same as the proportion of alcohol in the blood specimen taken from the defendant.
…”
[8] The effect of s 77 is to “deem the blood/breath, or blood/alcohol results achieved through subsequent testing, to be the same as at the time of the offence”.3 The purpose of the section was stated by the Court of Appeal as to:4
“Acknowledge that there is a necessary time-lag between the committing of the offence of driving with a blood/alcohol level of more than 80 milligrams of alcohol per 100 millilitres of blood, and a blood sample being taken. The presumption operates so as to prevent any argument as to whether the level of alcohol in the samples when taken was different from the level at the time of driving.”
(emphasis original)
3 Livingstone v Institute of Environmental Science and Research Ltd (2003) 20 CRNZ 253 (CA) at [38].
4 Tebbs v R [2013] NZCA 523 at [31].
[9] Generally, the section operates to defeat the “hip-flask defence”. This is reflected in the comments of the Minister who introduced the Bill, Hon Maurice Williamson that:5
“The second item relates to an evidential requirement that a court can conclusively presume that the proportion of alcohol in a person’s breath or blood is the same at the time of the test as the time of the alleged offence. This is a current law that was introduced in 1970 to counter the hip-flask defence whereby people claim that they had a drink to steady their nerves after a crash or other incident but they were not intoxicated at the time of the incident.”
[10] Ms Bouwer argues that this section should be interpreted to exclude all circumstances other than those where the “hip-flask defence” is claimed. She submits that this is the interpretation most consistent with the presumption of innocence, so is to be preferred. Additionally, this is the interpretation most consistent with the Parliament’s intention.
[11] The meaning of s 77 must be ascertained from its text and in light of its purpose.6 Where faced with an issue of interpretation concerning the BORA, ss 4, 5 and 6 are engaged. They provide that:
“4 Other enactments not affected
No court shall, in relation to the 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
5Justified limitations
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
5 (27 November 1997) 565 NZPD 5746.
6 Interpretation Act 1999, s 5(1).
6Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be referred to any other meaning.”
[12] The Supreme Court in R v Hansen outlined the approach to be taken. The first step is to ascertain Parliament’s intended meaning.7 The main obstacle for Ms Bouwer is that her interpretation is not available on the wording of s 77. For the purposes of this appeal, it is important that s 6 makes clear, and the Supreme Court confirmed, that the rights-consistent interpretation must still be available on the wording of the section.8
[13] The relevant right engaged is the presumption of innocence. It is found within s 25(c) of BORA and provides that:
“Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
…
(c) the right to be presumed innocent until proved guilty according to law:”
[14] I accept the Crown’s submission that s 77 is not limited in the way claimed by the appellant. I consider this to be the case for three reasons.
[15] First, the wording of s 77 cannot support such an interpretation. Section 77 provides that it applies to “proceedings for an offence against this Act”. There is no room in those words to accommodate a narrow applicability. It is not linked to any particular “defence” being advanced. On the contrary, the section specifically states that it applies to all proceedings for offences. I accept the Crown’s submission that the wording of the section cannot support the appellant’s suggested interpretation. This is fatal to Ms Bouwer’s submission.
7 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [91].
8 At [93].
[16] Second, the legislative history of s 77 indicates that a reach beyond the “hip- flask defence” was intended. As was stated during the legislative process:9
“The practical effect of this presumption is to exclude a defendant, whose alcohol level was over the limit at the time the test was first taken, from proving that his or her alcohol level was below the limit at the time of driving. This also prevents the possibility that a suspect may attempt to throw the result of a test into doubt by drinking after being apprehended but prior to the test being taken.”
[17] This confirms the ordinary meaning of s 77; namely, that it is intended to reach beyond simply the “hip-flask defence”. Although the “hip-flask defence” was mentioned, the fact that the practical application would go further was also clearly contemplated. The section cannot be limited to the narrow application advanced by Ms Bouwer.
[18] Finally, if Parliament had contemplated Ms Bouwer’s proposed defence, I consider it would have nonetheless intended it be captured within s 77. The existence of s 77 reflects the difficulty of ascertaining the level of alcohol present at the time of driving. The policy factors which favour prohibiting the “hip-flask defence” are equally applicable to somebody who claims they consumed a relatively modest quantity of alcohol before driving, and that a later excess breath alcohol result was as a consequence of alcohol consumed after driving. They apply equally to the argument that the alcohol would not have taken effect due to having consumed the alcohol immediately before driving.
Conclusion
[19] It follows from the above that the conviction should stand. The next step is for a further hearing to consider the jurisdictional question as to whether or not a declaration of inconsistency can be made.
9 Land Transport Bill 1997 (87-2) at xiv.
[20] For that purpose I direct the Registrar to set this matter down for a hearing to determine that question.
Moore J
Solicitors:
Mr Tuck, Tauranga
Crown Law Office, Wellington