BOUWER v NEW ZEALAND POLICE [2020] NZHC 3493

BOUWER v NEW ZEALAND POLICE [2020] NZHC 3493 [22 December 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-000044[2020] NZHC 3493BETWEEN JEMAINE BOUWERAppellantAND NEW ZEALAND POLICERespondentHearing: 14 December 2020(Heard at Tauranga)Appearances: Craig Tuck for the AppellantBriar Charmley for the Respondent (via telephone)Judgment: 22 December 2020JUDGMENT OF MOORE J[Appeal against conviction]This judgment was delivered by me on 22 December 2020 at 11:00 am.Registrar/ Deputy RegistrarDate:Introduction[1] Ms Bouwer appeals against one conviction for driving with excess breathalcohol.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 beconstrued narrowly, the appeal should be allowed, Ms Bouwer's conviction quashedand the charge remitted back to the District Court for re-hearing.[2] However, in the event this Court determines the respondent's broaderinterpretation of s 77 is correct, the conviction stands and the next procedural stepwould be for a further hearing on the jurisdictional question of whether a declarationof 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 publicdrinking 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 havingconsumed wine earlier. She performed an evidential breath test which returned areading of 483 micrograms of alcohol per litre of breath. In her explanation to thePolice, she stated that she would not have been over the legal limit at the time ofdriving, 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 appealsher conviction, requesting that the High Court:(a) declare s 77 inconsistent with s 25 of the New Zealand Bill of RightsAct 1990 ("BORA");(b) interpret s 77 consistently with the BORA; and1 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 interpretedconsistently 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 arisingout of the circumstances in respect of which an evidential breath testwas undergone by the defendant, it is to be conclusively presumed thatthe proportion of alcohol in the defendant's breath at the time of thealleged offence was the same as the proportion of alcohol in thedefendant's breath indicated by the test.(2) For the purposes of proceedings for an offence against this Act arisingout of the circumstances in respect of which a blood specimen wastaken from the defendant under section 72 or section 73, it is to beconclusively presumed that the proportion of alcohol in thedefendant's blood at the time of the alleged offence was the same asthe proportion of alcohol in the blood specimen taken from thedefendant."[8] The effect of s 77 is to "deem the blood/breath, or blood/alcohol resultsachieved through subsequent testing, to be the same as at the time of the offence".3The 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 ofthe offence of driving with a blood/alcohol level of more than 80 milligramsof alcohol per 100 millilitres of blood, and a blood sample being taken. Thepresumption operates so as to prevent any argument as to whether the level ofalcohol in the samples when taken was different from the level at the time ofdriving."(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 isreflected in the comments of the Minister who introduced the Bill, Hon MauriceWilliamson that:5"The second item relates to an evidential requirement that a court canconclusively presume that the proportion of alcohol in a person's breath orblood is the same at the time of the test as the time of the alleged offence. Thisis a current law that was introduced in 1970 to counter the hip-flask defencewhereby people claim that they had a drink to steady their nerves after a crashor 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 allcircumstances other than those where the "hip-flask defence" is claimed. She submitsthat this is the interpretation most consistent with the presumption of innocence, so isto be preferred. Additionally, this is the interpretation most consistent with theParliament's intention.[11] The meaning of s 77 must be ascertained from its text and in light of itspurpose.6 Where faced with an issue of interpretation concerning the BORA, ss 4, 5and 6 are engaged. They provide that:"4 Other enactments not affectedNo court shall, in relation to the enactment (whether passed or madebefore or after the commencement of this Bill of Rights,)–(a) hold any provision of the enactment to be impliedly repealedor 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 ofthis Bill of Rights5 Justified limitationsSubject to section 4, the rights and freedoms contained in this Bill ofRights may be subject only to such reasonable limits prescribed bylaw 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).6 Interpretation consistent with Bill of Rights to be preferredWherever an enactment can be given a meaning that is consistent withthe rights and freedoms contained in this Bill of Rights, that meaningshall be referred to any other meaning."[12] The Supreme Court in R v Hansen outlined the approach to be taken. The firststep is to ascertain Parliament's intended meaning.7 The main obstacle for Ms Bouweris that her interpretation is not available on the wording of s 77. For the purposes ofthis appeal, it is important that s 6 makes clear, and the Supreme Court confirmed, thatthe rights-consistent interpretation must still be available on the wording of thesection.8[13] The relevant right engaged is the presumption of innocence. It is found withins 25(c) of BORA and provides that:"Everyone who is charged with an offence has, in relation to the determinationof the charge, the following minimum rights:(c) the right to be presumed innocent until proved guilty according tolaw:"[14] I accept the Crown's submission that s 77 is not limited in the way claimed bythe appellant. I consider this to be the case for three reasons.[15] First, the wording of s 77 cannot support such an interpretation. Section 77provides that it applies to "proceedings for an offence against this Act". There is noroom in those words to accommodate a narrow applicability. It is not linked to anyparticular "defence" being advanced. On the contrary, the section specifically statesthat it applies to all proceedings for offences. I accept the Crown's submission thatthe 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, whosealcohol level was over the limit at the time the test was first taken, fromproving 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 resultof a test into doubt by drinking after being apprehended but prior to the testbeing taken."[17] This confirms the ordinary meaning of s 77; namely, that it is intended to reachbeyond simply the "hip-flask defence". Although the "hip-flask defence" wasmentioned, the fact that the practical application would go further was also clearlycontemplated. The section cannot be limited to the narrow application advanced byMs Bouwer.[18] Finally, if Parliament had contemplated Ms Bouwer's proposed defence, Iconsider it would have nonetheless intended it be captured within s 77. The existenceof s 77 reflects the difficulty of ascertaining the level of alcohol present at the time ofdriving. The policy factors which favour prohibiting the "hip-flask defence" areequally applicable to somebody who claims they consumed a relatively modestquantity of alcohol before driving, and that a later excess breath alcohol result was asa consequence of alcohol consumed after driving. They apply equally to the argumentthat the alcohol would not have taken effect due to having consumed the alcoholimmediately before driving.Conclusion[19] It follows from the above that the conviction should stand. The next step is fora further hearing to consider the jurisdictional question as to whether or not adeclaration 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 todetermine that question.Moore JSolicitors:Mr Tuck, TaurangaCrown Law Office, Wellington