BOUWER v POLICE [2021] NZHC 1388

BOUWER v POLICE [2021] NZHC 1388 [11 June 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-44[2021] NZHC 1388BETWEEN JEMAINE BOUWERAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2021Appearances: C Tuck and T Harré for the AppellantK Laurenson for the RespondentJudgment: 11 June 2021JUDGMENT OF GAULT JThis judgment was delivered by me on 11 June 2021 at 3.15 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr C Tuck and Mr T Harré, Barristers, Mount MaunganuiMs K Laurenson, Crown Law, Wellington[1] Ms Bouwer appeals against her conviction on one charge of driving withexcess breath alcohol under s 56 of the Land Transport Act 1998 (LTA).1 She wasconvicted by Judge P G Mabey QC in the District Court at Tauranga on 2 June 2020based on the conclusive presumption in 77(1) of the LTA that the alcohol in thedefendant's breath at the time of the alleged offence was the same as that indicated bythe test.2[2] On appeal, Mr Tuck, for Ms Bouwer, seeks a declaration that s 77 of the LTAis inconsistent with the right to be presumed innocent until proved guilty according tolaw 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 vehiclein Papamoa. She was seen drinking from a wine bottle while seated in the vehiclenear a playground. She was observed to have approximately four mouthfuls from thebottle. Ms Bouwer was then seen getting out of the car and disposing of the winebottle 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 perlitre 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 husbanddid not know that she had been drinking during the day. She had taken a couple ofmouthfuls just prior to placing the bottle in the rubbish bin. She also said she had notdriven 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 thetime of driving. She said this would have resulted from her further consumption ofalcohol 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 theJudge was bound by the s 77 presumption and signalled that in this Court he wouldraise issues under NZBORA. Having heard evidence and resolved a narrow issue ofdisputed fact in Ms Bouwer's favour, Judge Mabey concluded that the s 77presumption excluded a defence in the District Court and convicted Ms Bouwer.Approach on appeal[8] In the case of a first appeal against conviction following a judge-alone trial,the appellate court must allow the appeal if satisfied that the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage of justice has occurredor that a miscarriage of justice has occurred for any (other) reason.3 A miscarriage ofjustice means any error, irregularity, or occurrence in or in relation to the trial that hascreated a real risk that the outcome of the trial was affected or has resulted in an unfairtrial or a trial that was a nullity.4[9] This appeal is by way of rehearing.5 The appellate court has the responsibilityof considering the merits of the case afresh. The appellate court must be persuadedthat a miscarriage has occurred, but the weight it gives to the reasoning of the courtbelow is a matter for the appellate court's assessment.6First High Court decision[10] On appeal in this Court, the parties agreed that the Court should first considerthe interpretation of s 77 to see if it could be interpreted consistently with NZBORA.Justice Moore heard that issue. Mr Tuck, for Ms Bouwer, submitted that s 77 couldbe interpreted narrowly to exclude all circumstances other than the "hip flask defence",3 Criminal Procedure Act 2011, ss 232(2)(b) and 232(2)(c).4 Section 232(4).5 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]; and Austin, Nicholls &Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [16].6 No deference is required beyond the customary caution appropriate when seeing the witnessesprovides an advantage because credibility is important: Austin, Nichols & Co Inc v StichtingLodestar [2007] NZSC 103, [2008] NZLR 141 at [13].whereby people claim to have had a drink to steady their nerves after a crash or otherincident, which was referred to by the Minister introducing the Bill in Parliament.7[11] Justice Moore referred to the approach to be taken when considering whetherthe interpretation of an enactment is consistent with the rights and freedoms inNZBORA as set out in R v Hansen,8 and found that s 77 could not be interpretednarrowly. Justice Moore considered that s 77 is not limited to the "hip flask defence";it applies also to drinking after being apprehended (to throw the result into doubt) andto drinking immediately before driving (the argument that the alcohol would not havetaken effect).9[12] Justice Moore directed a further hearing to consider the jurisdictional questionas to whether or not a declaration of inconsistency could be made.10Issues remaining[13] At this hearing, Mr Tuck confined the relief sought to a declaration ofinconsistency with NZBORA. He accepted that this Court could not allow the appealand quash the conviction. That is correct given s 4 of NZBORA, which provides that:No court shall, in relation to any enactment (whether passed or made beforeor after the commencement of this Bill of Rights),—(a) hold any provision of the enactment to be impliedly repealed orrevoked, 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 Billof Rights.[14] It is common ground between the parties that the conclusive presumption ins 77 of the LTA places a limit on the right to be presumed innocent until proved guiltyaccording to law enshrined in s 25(c) of NZBORA. Furthermore, the respondent doesnot attempt to argue that s 77 is a justified limit in terms of s 5 of NZBORA, acceptingit bears the onus in relation to s 5 in circumstances where an enactment places a limit7 27 November 1997 565 NZPD 5746.8 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.9 Bouwer v New Zealand Police [2020] NZHC 3493 at [14]–[18].10 At [19].on an NZBORA right.11 Therefore, it is common ground that s 77 is inconsistent withthe right to be presumed innocent until proved guilty according to law enshrined ins 25(c) of NZBORA. In these circumstances, it is unnecessary to make a finding ofinconsistency, but it follows from the onus that I should assume inconsistency as therespondent has chosen not to develop an evidential basis for a s 5 justification.[15] It is also common ground that this Court may grant a formal declaration ofinconsistency in a civil proceeding, following Attorney-General v Taylor.12 The issuesremaining for determination are whether a formal declaration of inconsistency isavailable in a criminal proceeding and, if so, whether one should be granted in thiscase.Declarations of inconsistency in criminal proceedings[16] Mr Tuck submitted that this Court should determine that a formal declarationof inconsistency is available in a criminal proceeding. He acknowledged the issue isnot settled as the Supreme Court declined to decide it recently in Fitzgerald v R.13[17] Mr Tuck relied on the judgment of Thomas J in the Court of Appeal inR v Poumako, a criminal case involving the application of another minimum standardof criminal procedure enshrined in s 25 of NZBORA (the right to the lesser penaltywhere it has changed since the commission of the offence) to a legislative amendmentconcerning a new minimum period of imprisonment for murder involving homeinvasion.14 In a strongly worded judgment, Thomas J was prepared to grant a formaldeclaration of inconsistency.1511 Ministry of Transport v Noort [1992] 3 NZLR 260, (1992) 8 CRNZ 114 at 283.12 Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213. See also the High CourtAmendment Rules 2021 and New Zealand Bill of Rights (Declarations of Inconsistency)Amendment Bill 2020 (230-1), which both recognise and assume the existence of the court'sjurisdiction to make declarations of inconsistency as confirmed in Attorney-General v Taylor.13 Fitzgerald v R [2020] NZSC 119, declining leave to appeal from Fitzgerald v R [2020] NZCA 292at [84], where the majority said that New Zealand courts have yet to finally determine whether adeclaration of inconsistency is an available remedy in criminal proceedings, citing Belcher v ChiefExecutive of the Department of Corrections [2007] NZCA 174 at [13]–[15]; Belcher v ChiefExecutive of the Department of Corrections [2007] NZSC 54 at [7]–[8]; R v Chatha (No 2) [2008]NZCA 466 at [32]; McDonnell v Chief Executive of Department of Corrections [2009] NZCA 352;(2009) 8 HRNZ 770 at [114]–[131]; and Attorney-General v Taylor [2017] NZCA 215; [2017] 3NZLR 24 at [148].14 R v Poumako [2000] 2 NZLR 695.15 At [70] and [86]–[107].[18] However, the Court of Appeal's majority judgment in Poumako refrained fromexpressing a final view on the prior question of the construction of the legislativeamendment as that was unnecessary because the minimum term was justified on thefacts. The majority did not address the question of whether there should be adeclaration of inconsistency (which it said was canvassed only briefly in argument).16[19] Ms Laurenson, for the respondent, submitted that a declaration ofinconsistency is not available in criminal proceedings, and that Ms Bouwer wouldneed to commence a separate civil proceeding in this Court seeking a declaration ofinconsistency. Ms Laurenson submitted the leading case is Belcher v TheChief Executive of the Department of Corrections (Belcher (No 2)).17[20] In Belcher (No 2), the Court of Appeal was asked to declare that the extendedsupervision order regime was incompatible with NZBORA. In relation to whether adeclaration of inconsistency can properly be sought in criminal proceedings,the majority of the Court, in a judgment given by Williams Young P, stated:[13] Criminal proceedings can be dealt with at first instance summarily inthe District Court or indictably in both the District Court and High Court.In the course of determining criminal proceedings, courts, including theDistrict Court, sometimes give relief for breaches of the New Zealand Bill ofRights Act, usually in the form of excluding evidence. But this is "criminalrelief" and it is unheard of for the courts hearing criminal cases to grant whatis truly civil relief, for instance Baigent damages. This [sic] reasons for thisare obvious. Criminal procedures, as laid down by statute, are appropriate forthe determination of criminal proceedings but not for the granting of civilrelief. This is so in terms of who the parties are, who determines questions offact (in serious cases juries and not judges), pre-trial procedures (which do notinclude mutual discovery) and appeal rights (which are usually narrowlyexpressed and would not provide for appeal rights in relations to the grantingor refusing of declarations of inconsistency). As well, there is the ever presentrisk of the criminal process being diverted into collateral issues.[14] A District Court judge in a civil case would not be entitled to grant adeclaration of inconsistency (as this lies outside the jurisdiction provided forin the District Courts Act 1947). Given this, there could be no principled basisfor District Court judges to do so in the exercise of their criminal jurisdiction.It may be something of an accident whether a particular indictable case isheard in the District Court or High Court and irrespective of which Court hearsa criminal trial, the procedures (as laid down by the Crimes Act 1961) are thesame. So it would be anomalous if a High Court judge hearing a particular16 At [41]–[43]. Henry J, in a separate judgment, agreed the minimum term was justified in anyevent and left open the issue of whether there should be a declaration.17 Belcher v The Chief Executive of the Department of Corrections [2007] NZCA 174.criminal case were to make a declaration of inconsistency whereas aDistrict Court judge hearing an identical case and under the same statutoryregime could not do so.[15] This is not to say that the consistency or otherwise of legislation withthe New Zealand Bill of Rights Act is irrelevant in criminal cases. Indeed thecontrary is obviously the case, as exemplified by R v Hansen [2007] NZSC 7.It may well be necessary for courts exercising criminal jurisdiction at all levelsof the hierarchy courts either to make a finding of inconsistency (as in Hansen)or perhaps to assume inconsistency where the Crown has chosen not todevelop an evidential basis for a s 5 justification (as in the present case).[16] So if a declaration of inconsistency is available (on which we expressno opinion), it should be sought in a civil proceeding commenced in the HighCourt, a course which we think is consistent with [8] of the Taunoa judgment.Conclusion[17] Accordingly, we conclude that this Court does not have jurisdiction inthis case to make a declaration that any provision of the Parole Act 2002 isinconsistent with the New Zealand Bill of Rights Act 1990 or the InternationalCovenant on Civil and Political Rights. It does not, of course, follow that weare saying that a declaration of inconsistency can never be made, inappropriate circumstances and on appropriate procedure.[21] The Supreme Court dismissed an application for leave to appeal,18 saying:[6] As to the decision to decline a formal declaration of inconsistency:assuming, without deciding, that a declaration may be available in a criminalproceeding, we consider that it was entirely appropriate for the Court ofAppeal to leave the matter in essentially the same way as it was subsequentlyleft by the majority of this Court in R v Hansen19 where the inconsistency wasdescribed in the reasons for judgment but no declaration was made. It is alsoof some moment in the present case that no issue concerning s 5 was requiredto be determined in the necessary course of interpreting the legislation andresolving questions between the parties. A response in the form of adeclaration was quite unnecessary.[22] Soon after Belcher (No 2), the Court of Appeal said in R v Exley:20[18] This court has already held it has no jurisdiction to make declarationsof inconsistency in criminal proceedings: Belcher v Chief Executive of theDepartment of Corrections [2007] NZCA 174 at [16].18 Belcher v Chief Executive of the Department of Corrections [2007] NZSC 54. See also R v Chatha(No 2) [2008] NZCA 466 at [32].19 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.20 R v Exley [2007] NZCA 393 at [18]. See also R v McMillan [2007] NZCA 394, which was heardtogether with Exley.[23] In McDonnell v Chief Executive of Dept of Corrections, the Court of Appealsummarised the position after the Belcher litigation:21(a) No decision has yet been made by the Supreme Court on whetherdeclarations of inconsistency are available in criminal proceedings.However, this Court has indicated (in an obiter comment) that theyare not; a separate civil proceeding is required: see [119] above.The Supreme Court did not give leave to appeal from that decisionand did not contradict that comment (though it did contradict anotheraspect of the decision).(b) The preferred approach to identifying inconsistencies is to do so in thereasons for judgment, without issuing a formal declaration.(c) A declaration will be unnecessary where s 5 of the Bill of Rights doesnot need to be considered in order to determine the questions at issuebetween the parties.(d) There is no jurisdictional bar to the Court of Appeal granting adeclaration of inconsistency where such a declaration was not firstsought in the High Court but was technically available.[24] Finding itself in substantially the same position as the Court of Appeal inBelcher (No 2), being asked to deal with the issues arising from the declarationapplication without the benefit of a High Court decision, the Court of Appeal inMcDonnell concluded:22[131] This Court's decision in Belcher No 2 clearly stated that declarationsof inconsistency could not be issued in criminal proceedings, and a separatecivil application was required. The Chief Executive would not be theappropriate defendant in such proceedings. Efforts were made to facilitate acivil application being made in the High Court but this did not occur. Althoughthe Supreme Court's decision declining leave to appeal in Belcher SC includesthe statement "assuming, without deciding, that a declaration may be availablein a criminal proceeding", the Supreme Court has not overruled the decisionof the full Court in Belcher No 2. Indeed, the Supreme Court expressed theview that it was unnecessary to make a declaration in the Belcher case andthat the way the matter was left in this Court was "entirely appropriate". Nocivil application was made in this case. In those circumstances we reiterate theposition set out in Belcher No 2 and decline the application for a declarationof inconsistency.21 McDonnell v Chief Executive of Dept of Corrections [2009] NZCA 352; (2009) 8 HRNZ 770 at[123].22 At [131].[25] More recently, and since the enactment of the Criminal Procedure Act 2011(CPA), the issue of a declaration of inconsistency in criminal proceedings arose againin Fitzgerald v R.23 The majority said:[84] The Supreme Court has confirmed that a declaration of inconsistency isan available remedy in civil proceedings. But New Zealand courts have yet tofinally determine whether a declaration of inconsistency is an availableremedy in criminal proceedings.[85] In this case there is the further issue that a declaration was not sought inthe High Court: the issue arose for the first time in the course of argumentin this Court. The Crown says that it is not open to this Court to make adeclaration of inconsistency in the context of an appeal against conviction orsentence under the CPA. The CPA sets out in some detail the orders that maybe made in determining such appeals. A declaration of inconsistency is notone of the available outcomes expressly contemplated by that Act, exceptperhaps where an appeal against conviction is allowed and the conviction isset aside: in those circumstances s 233(3)(e) provides for the court to makeany other order it considers justice requires. But in this case we have decidedthat the conviction should not be set aside, so the power conferred by s233(3)(e) is not available. That raises the question whether, where an appealagainst conviction under the CPA is dismissed, this Court can grant adeclaration of inconsistency.[86] The Crown identified a number of other difficulties with this Courtconsidering the grant of a declaration of inconsistency as a matter of firstimpression. There may be cases where evidence is required to determinewhether a provision is inconsistent with NZBORA; for example, where theCrown wishes to argue that the provision is justified under s 5 of NZBORA.Discovery may be required in some cases. There would be no appeal as ofright from the determination by this Court. It is also generally undesirable forthis Court to engage in determining significant public law issues without thebenefit of a judgment from the High Court. Some of the difficulties identifiedby the Crown are not relevant to the present appeal. The question ofinconsistency with NZBORA can be, and has been, determined without theneed for discovery or further evidence. But other concerns raised by theCrown have more force.[87] As against this, it can be argued that a declaration provides importantvindication of an appellant's rights. That vindication is arguably more, notless, important where s 4 of NZBORA applies with the result that the Court isrequired to give effect to a rights-infringing statute, and dismiss the appeal.Where the Court hearing a criminal appeal concludes that a statute isinconsistent with NZBORA, it is not easy to see what practical purpose isserved by requiring the appellant to commence separate civil proceedings inorder to obtain a formal declaration of inconsistency. There are obviousbarriers to doing so, not least the cost of such proceedings and uncertain accessto legal aid: the ability to obtain a declaration in the context of a criminalappeal would undoubtedly enhance access to justice. In Attorney-General vTaylor the Supreme Court confirmed that the grant of a declaration serves auseful purpose over and above an indication of inconsistency.23 Fitzgerald v R [2020] NZCA 292.[88] These are important issues that remain to be considered by this Court.It would in our view be desirable for a full court of this Court to hear anddetermine an appeal which squarely raises the question whether a declarationof inconsistency can be sought in the context of an appeal under pt 6 of theCPA.(footnotes omitted)[26] The Supreme Court declined leave to appeal against the Court of Appeal'srefusal to grant a declaration of inconsistency in respect of s 86D(2) of the SentencingAct 2002.24 The Court was not satisfied it was a suitable case to consider whetherthere is jurisdiction to make a declaration of inconsistency in the context of criminalappeals. It said that Mr Fitzgerald did not initially seek a declaration in either Courtbelow, and the Supreme Court did not have the benefit of the opinion of the Court ofAppeal given after hearing oral argument on the point.25[27] Some of the difficulties raised by the Crown and referred to by the Court ofAppeal in Fitzgerald apply here and others do not. Here, there is no issue aboutdiscovery or evidence to address whether the limit is justified in terms of s 5.The declaration has been sought in this Court on an appeal under pt 6 of the CPA,26in circumstances where the District Court was the trial court and had no power to makea declaration of inconsistency, and there is no further appeal as of right.[28] In addition, Ms Laurenson noted the party issue referred to in Belcher (No 2).27Here, the respondent is the New Zealand Police. The Attorney-General does notnormally take a role in criminal cases whereas the Attorney-General may do so in Billof Rights cases, especially when it is sought to justify the limit in terms of s 5.[29] The question for this Court, at least pending further consideration by the Courtof Appeal as foreshadowed in Fitzgerald, is whether the current law in relation to thisCourt's jurisdiction to grant a declaration of inconsistency in criminal proceedingsremains as stated by the Court of Appeal in Belcher (No 2), Exley and McDonnell.That is, an inconsistency with NZBORA may be described in the reasons for judgment24 Fitzgerald v R [2020] NZSC 119. The Supreme Court granted leave in relation to the interpretationof s 106 of the Sentencing Act 2002 in the context of third strike offences.25 At [3]. The Court of Appeal had called for further submissions but had not held a further hearing.26 Sections 232(2)(b) and 232(2)(c).27 Belcher v The Chief Executive of the Department of Corrections [2007] NZCA 174 at [13].in a criminal proceeding but, if a formal declaration of inconsistency is sought,it should be in a civil proceeding commenced in this Court. While the Court of Appealin McDonnell described that conclusion in Belcher (No 2) as an obiter comment,it went on to reiterate the position. The majority in Fitzgerald has outlinedconsiderations for and against that conclusion, including an important access to justiceconsideration against requiring separate proceedings, and said it would be desirablefor a full court of the Court of Appeal to hear and determine an appeal which squarelyraises the question.[30] I consider it would not be appropriate for me to embark on analysis of thecompeting considerations referred to in Fitzgerald in order to reach my ownconclusion. Even if the legal conclusions in the appellate authorities of Belcher (No 2)and McDonnell are not strictly binding because of the way those cases presented onappeal, they clearly state that declarations of inconsistency cannot be issued incriminal proceedings, and a separate civil application is required. Exley also statesthat is the law without any reservation because of the way the issue had arisen onappeal.28 I consider that is the current law pending reconsideration by the Court ofAppeal.[31] Even if there is jurisdiction to grant a formal declaration of inconsistency in acriminal proceeding, the remaining question is whether a declaration should be grantedin the circumstances of this case.Whether a declaration should be granted[32] Mr Tuck emphasised Ms Bouwer's concern for vindication. In relation to theprosecution case, the Judge's findings in relation to the disputed facts provided that.The Judge determined that Ms Bouwer had not been driving with her sister thatmorning. Rather, as she admitted, she drank approximately four mouthfuls from abottle while sitting in her vehicle before driving home. In relation to the excess breathalcohol conviction based on the presumption, Mr Tuck also emphasised that MsBouwer had moved to New Zealand from South Africa. Ms Bouwer clearly felt28 I acknowledge that Exley was an appeal against sentence, where the outcomes on appeal are evenmore narrowly prescribed.aggrieved that s 77 has the effect that her breath alcohol level recorded at home a littlelater should be presumed to be her breath alcohol at the time she drove home. I alsoacknowledge the significance of the presumption of innocence. As McGrath J said inR v Hansen, the presumption of innocence has long been seen as the core value in thecriminal justice system.29[33] Even so, if I had concluded there is jurisdiction to grant a formal declarationin a criminal proceeding, I do not consider the circumstances of this case require one,for the following reasons.[34] First, Parliament is already aware of the inconsistency given the Attorney-General's s 7 report on the Land Transport Bill in 1997.30[35] Secondly, the inconsistency is evident in the reasons for judgment in this Court.Moore J has already concluded that s 77 cannot be interpreted narrowly so as to beinapplicable in this case. This judgment has now recorded that the respondent did notattempt to argue that s 77 is a justified limit on the right to be presumed innocent untilproved guilty. Therefore, it is common ground that s 77 is inconsistent with the rightto be presumed innocent until proved guilty according to law enshrined in s 25(c) ofNZBORA. In these circumstances, it is unnecessary to make a finding ofinconsistency, but it follows from the onus in relation to s 5 that I should assumeinconsistency as the respondent has chosen not to develop an evidential basis for a s 5justification, making that distinction as in Belcher (No 2).31 In that sense, theinconsistency with NZBORA is described in the reasons for judgment (as in a Hansenindication). A formal declaration would, however, elevate the assumption into afinding, which would not be appropriate in this case.[36] Thirdly, as indicated, Ms Bouwer accepts that inconsistency with NZBORAhas no effect in relation to the outcome of her appeal against conviction. I haveaddressed her concern for vindication and consider a declaration would have no utility.29 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [193].30 Attorney-General Report of the Attorney-General on the Land Transport Bill (26 November1997).31 Belcher v The Chief Executive of the Department of Corrections (No 2) [2007] NZCA 174 at [15].[37] Finally, I consider these same considerations would apply if this were a civilproceeding. This is not a case where an access to justice barrier may preclude relief.Indeed, it is possible that if civil proceedings were issued, an evidential basis for a s 5justification may be advanced.[38] Therefore, even if I had considered that the Court has jurisdiction to grantdeclarations of inconsistency in a criminal proceeding, I would have declined to granta declaration of inconsistency in this case.Result[39] The appeal is dismissed.________________________________Gault J