Bouwer v Police - [2020] NZHC 3493

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…

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.

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Details

Case: [2020] NZHC 3493
Decision Date: 22 December 2020

CaseChat Overview and Summary

The High Court was asked to consider an appeal by Ms Bouwer against her conviction for driving with excess breath alcohol. The appeal turned on the interpretation of section 77 of the Land Transport Act 1998, which provides a conclusive presumption regarding the proportion of alcohol in a person’s breath or blood at the time of an alleged offence. Ms Bouwer argued that the section should be interpreted narrowly to exclude circumstances other than those where the "hip-flask defence" is claimed, but the Court found that the section’s wording, legislative history, and purpose all indicated a broader applicability. The Court held that the conviction should stand, and directed that a further hearing be held to consider the jurisdictional question of whether a declaration of inconsistency can be made.

The legal issue in this case was the interpretation of section 77 of the Land Transport Act 1998. Ms Bouwer argued that the section should be interpreted narrowly, but the Court found that the wording, legislative history, and purpose of the section all indicated a broader applicability. The Court held that the conviction should stand, and directed that a further hearing be held to consider the jurisdictional question of whether a declaration of inconsistency can be made.

The Court considered the wording of section 77, which provides that it applies to "proceedings for an offence against this Act". The Court found that the wording of the section cannot support the appellant’s suggested interpretation, and that the legislative history of the section indicates that a reach beyond the "hip-flask defence" was intended. The Court also found that if Parliament had contemplated the defence proposed by Ms Bouwer, it would have intended it be captured within section 77.

The Court concluded that the conviction should stand, and directed that a further hearing be held to consider the jurisdictional question of whether a declaration of inconsistency can be made. The Court found that the conviction should stand, and directed that a further hearing be held to consider the jurisdictional question of whether a declaration of inconsistency can be made.

Orders