BOUWER v NEW ZEALAND POLICE [2022] NZCA 166

BOUWER v NEW ZEALAND POLICE [2022] NZCA 166 [6 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA344/2021[2022] NZCA 166BETWEEN JEMAINE BOUWERApplicantAND NEW ZEALAND POLICERespondentHearing: 10 March 2022Court: Brown, Clifford and Courtney JJCounsel: T D A Harré and X Wang for AppellantM F Laracy, K Laurenson and FESF Girgis for RespondentJudgment: 6 May 2022 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an application for leave to appeal a decision of Gault J in the High Courtdeclining Ms Bouwer's application for a declaration of inconsistency as regardsthe presumption of tested breath alcohol content found in s 77 of the Land TransportAct 1998.1 To determine this application we need to consider two questions:1 Bouwer v Police [2020] NZHC 1388 [Gault J decision].2(a) do we have jurisdiction to hear an appeal against a decision ofthe High Court in criminal proceedings that it has no jurisdiction insuch proceedings to make a declaration of inconsistency; and(b) if we do, is this an appeal for which leave should be given?Background[2] In late 2019 Ms Bouwer was charged with driving with excess breath alcohol.2The circumstances giving rise to that charge were as follows.[3] Ms Bouwer was observed by a member of the public drinking wine froma bottle in a vehicle whilst parked at the side of the road. She then put the bottle ina rubbish bin and drove off. The witness reported these facts to the police.Some 15 to 20 minutes later the police spoke to Ms Bouwer at her home, a shortdistance from where she had been observed drinking. As a result breath testingprocedures were administered. An evidential breath test gave a reading of483 micrograms of alcohol per litre of breath.[4] The charge was heard in the District Court at Tauranga on 2 June 2020 beforeJudge Mabey QC. Mr Harré, then as now counsel for Ms Bouwer, told the JudgeMs Bouwer's explanation, and defence, was that she had not been intoxicatedat the time of driving. Rather, the alcohol detected in her breath was assimilatedafter she had arrived home. But, Mr Harré acknowledged, on its face s 77 ofthe Land Transport Act precluded that defence. That section provides:77 Presumptions relating to alcohol-testing(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 ofthe alleged offence was the same as the proportion of alcohol inthe defendant's breath indicated by the test.[5] Mr Harré therefore advised the Judge his intention was to take the inevitableresulting conviction on appeal to the High Court with a view to obtaining a declaration2 Land Transport Act 1998, s 56(1).3that s 77 of the Land Transport Act was inconsistent with s 25 of the New ZealandBill of Rights Act 1990 (NZBORA). But that issue was not, as it could not be, forconsideration in the District Court.[6] On that basis, Judge Mabey determined a dispute of facts, which he did so inMs Bouwer's favour,3 and then convicted her.4 The Judge ordered Ms Bouwer to paya fine of $450 and costs of $130, and disqualified her from driving for six months.Appeal to the High Court[7] Ms Bouwer duly filed her notice of appeal in the High Court. By way of reliefshe asked the High Court to:(a) interpret s 77 of the Land Transport Act consistently with NZBORA;and(b) quash her conviction; or(c) declare s 77 inconsistent with s 25 of NZBORA.[8] The High Court decided the appeal against conviction, based on theinterpretation argument, would be heard first. If that appeal was allowed,Ms Bouwer's conviction would be quashed. On the other hand, if that appeal wasdismissed there would be a further hearing of Ms Bouwer's application fora declaration of inconsistency. Were that stage to be reached the issues would be:(a) whether the High Court had jurisdiction to make such a declaration incriminal proceedings;3 The summary of facts originally recorded that Ms Bouwer had admitted to police she had beendrinking "with her sister" earlier on the day in question. Ms Bouwer accepted that summary exceptfor those words. The Judge, having received evidence on that point, was satisfied Ms Bouwer hadnot told police she had been drinking with her sister and ordered those words to be removedfrom the summary.4 Police v Bouwer [2020] NZDC 9760 at [35].4(b) if it did, was s 77 an unjustified limitation on an accused's right to bepresumed innocent until proven guilty and, if so, whether in the relevantcircumstances a declaration was appropriate relief for Ms Bouwer.[9] We note that the position of the Crown throughout has been to acknowledgethat s 77 of the Land Transport Act is inconsistent with s 25 of NZBORA.That acknowledgement, which the Crown confirmed at the hearing of this leaveapplication, reflects the advice the Attorney-General gave to Parliament at the times 77 was enacted.5 So, the issues would be those of jurisdiction to make sucha declaration and the appropriateness of doing so in the circumstances.[10] Ms Bouwer's conviction appeal was heard by Moore J in December 2020.6[11] The Judge was satisfied that the wording and legislative history of s 77 did notallow for the alternative, narrower, construction Ms Bouwer argued for.7 The sectionwas not limited, as Ms Bouwer had argued, to the circumstances of what werecolloquially known at the time as the "hip flask" defence, that is one wherethe defendant says the offending breath alcohol level was caused by drinking afterthe event. Here Ms Bouwer's proposed defence was that even though she hadconsumed alcohol before driving, and when tested she had had excess breath alcohol,nevertheless — based on scientific evidence she would present — that could not havebeen her breath alcohol level when driving, given the very short period of time that hadelapsed since her drinking the wine, driving to her nearby home and getting out ofher vehicle. The Judge considered that defence would have been intended byParliament to be captured by s 77.8[12] Moore J therefore held Ms Bouwer's conviction should stand and dismissedher conviction appeal.95 Paul East Report of the Attorney-General on the Land Transport Bill (26 November 1997).6 Bouwer v Police [2020] NZHC 3493.7 At [14]–[17].8 At [18].9 At [19].5[13] The question of the declaration of inconsistency then came before Gault J.The Judge treated the matter as a first appeal against conviction in terms of s 232(2)of the Criminal Procedure Act 2011.[14] The Judge first noted the authorities of this Court which have found thatdeclarations of inconsistency could not be issued in criminal proceedings, but thata separate civil application was required.10 He then referred to the following morerecent comments of the majority of this Court in Fitzgerald v R as to the availabilityand utility of such a declaration, as opposed to an indication of inconsistency:11Where the Court hearing a criminal appeal concludes that a statuteis inconsistent with NZBORA, it is not easy to see what practical purposeis served by requiring the appellant to commence separate civil proceedingsin order 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-Generalv Taylor the Supreme Court confirmed that the grant of a declaration servesa useful purpose over and above an indication of inconsistency.[15] The majority then recorded its view that it would be desirable for a Full Courtof this Court to hear and determine an appeal which "squarely raises" the questionwhether a declaration of inconsistency can be sought in the context of an appeal underpt 6 of the Criminal Procedure Act.12[16] The Judge concluded that as the law currently stood there was no jurisdictionin criminal proceedings to grant declarations of inconsistency.13 Moreover, even ifthere was jurisdiction, the Judge did not consider a declaration would be appropriate.14He reached that conclusion by reference to the following factors:(a) In 1997, the Attorney-General himself had reported to Parliamentpursuant to s 7 of NZBORA that cl 117 of the Land Transport Bill,10 Belcher v Chief Executive of the Department of Corrections [2007] NZCA 174 at [13]–[16] perWilliam Young P, Chambers, O'Regan and Robertson JJ (Hammond J reserving his position);R v Exley [2007] NZCA 393 at [18]; and McDonnell v Chief Executive of Department ofCorrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [123].11 At [25], quoting Fitzgerald v R [2020] NZCA 292 at [87] per Clifford and Goddard JJ (footnotesomitted).12 At [88] per Clifford and Goddard JJ.13 Gault J decision, above n 1, at [30].14 At [33].6which is now s 77 of the Land Transport Act, placed an unjustified limiton the right to the presumption of innocence affirmed by s 25(c)of NZBORA.15(b) The Judge had recorded the Crown's position as accepting, in line withthe Attorney-General's report, that s 77 was an unjustified limitation onMs Bouwer's s 25(c) right. A finding of inconsistency was unnecessaryin those circumstances.16(c) As Ms Bouwer had accepted, a declaration of inconsistency could haveno effect in relation to the outcome of her conviction appeal.17Leave to appeal[17] Ms Bouwer applied to this Court for leave to appeal Gault J's decision. She didso as an appeal against her conviction. The reasons she gave as to why this Courtshould grant leave were as follows:This appeal turns on a novel point of law. The issue is whether the irrebuttablepresumption in s 77 [of the] Land Transport Act is contrary to rights protectedby the NZBORA.There is an additional issue of whether declarations of inconsistency areavailable within the criminal jurisdiction — the Court of Appeal haspreviously considered this issue in Fitzgerald v R, and held that this was animportant issue that should be considered by a full bench of theCourt of Appeal.Submissions[18] For Ms Bouwer, Mr Harré noted the technical difficulties presented bythe statutory framework for criminal appeals found in the Criminal Procedure Act forhis argument as to jurisdiction. Put simply, Mr Harré accepted on its face this is nota pt 6, sub-pt 3 conviction appeal. Ms Bouwer was not seeking leave for a secondappeal against her conviction. Rather she sought to appeal Gault J's determinationdeclining a declaration. In that context, Mr Harré suggested before us that there may15 At [34].16 At [14] and [35].17 At [36].7be an answer to that jurisdictional difficulty which he had not relied on before.That is, it might be possible to characterise Ms Bouwer's appeal as a first appeal ona question of law in terms of pt 6, sub-pt 8 of the Criminal Procedure Act.However, in doing so Mr Harré also accepted that s 296, which provides such a rightof appeal, was on its face inapplicable here: Gault J's determination was not an appeal"on a question of law against a ruling by the trial Court".18[19] But, endorsing the observations of this Court in Fitzgerald, Mr Harréemphasised the significant vindication for Ms Bouwer personally of a declarationof inconsistency. He also emphasised the public importance, from an access to justicepoint of view, of the Court hearing a criminal appeal against conviction basedon NZBORA arguments also being able to hear an application for a declarationof inconsistency.[20] For the Crown, Ms Laracy supported the traditional view that declarations ofinconsistency could not be made by this Court in its appellate jurisdiction as providedby the Criminal Procedure Act. As Ms Bouwer's conviction appeal to the High Court,and her application for leave to appeal to this Court, were brought under that Act,the "difficulties" Mr Harré had acknowledged meant this Court lacked jurisdictionto hear Ms Bouwer's proposed appeal. Ms Laracy also endorsed Gault J's assessmentthat, even if jurisdiction did exist, this was not a case suitable for leave. There was,in reality, nothing at issue as regards s 77's inconsistency with NZBORA. For thatreason also, leave should be declined.Analysis[21] This Court may only grant leave for a second appeal against conviction whereit is satisfied that the appeal involves a matter of general or public importance ora miscarriage of justice may have occurred, or may occur unless the appeal is heard.19[22] It goes without saying that the question of availability of declarations ofinconsistency in criminal proceedings is a matter of significant public importance.18 Criminal Procedure Act 2011, s 296(2).19 Section 237(2).8This Court's recent comments in Fitzgerald as to the desirability of that jurisdictionalquestion being considered by a Full Court confirm that observation.[23] As reflected in the submissions we heard, Ms Bouwer's leave application canbe seen as first raising the question of jurisdiction and, secondly, as engagingthe traditional discretionary factors applicable to its exercise. But the substance ofthe appeal which this Court in Fitzgerald saw as warranting the attention ofa Full Court is an issue of jurisdiction, if not the very same one as would be consideredat the leave stage. On that basis determining, or purporting to determine, jurisdictionat the leave stage would in our view not be appropriate. Rather, we think this leaveapplication should be determined by reference to the discretionary factors and,in particular, whether an appeal by Ms Bouwer against Gault J's decision would be anappropriate context for the determination of the jurisdictional question.[24] In our view the answer to that question is no. We say that for the followingreasons.[25] In line with the Attorney-General's report to Parliament as to the apparentinconsistency of s 77 with the s 25(c) NZBORA affirmation of the right tothe presumption of innocence, there has in Ms Bouwer's case from the outset been nocontest on the question of inconsistency. Nor is there any challenge to the High Courtdecision of Moore J that a rights-consistent interpretation of s 77 is not available.[26] There being no dispute as to the fact of inconsistency, Mr Bouwer's case wouldonly provide for a theoretical assessment of the benefit of a declaration ofinconsistency, as opposed to an indication of inconsistency, as regards issues ofvindication and access to justice. An appeal where the question of inconsistency wasat issue, so that the question of the significance — for a particular defendant ofa declaration as opposed to an indication — was a real one would enable the competingpoints of view to be better ventilated and assessed.[27] In our view the same consideration applies as to the suitability of an appeal byMs Bouwer for an appellate assessment of the jurisdictional issues in the context ofthe obvious procedural and substantive barriers presented by the terms of the9Criminal Procedure Act, and the inherent focus in the criminal jurisdiction onthe question of proof of guilt. A real contest as to inconsistency, and the light thatcould throw on the end of day assessment of the strength or otherwise of those"pathway" arguments, will be an important element of the determination of thejurisdictional question.[28] In the round, therefore, we are not persuaded an appeal by Ms Bouwer would,in terms of Fitzgerald, "squarely raise" that jurisdictional question.20Result[29] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent20 Fitzgerald v R, above n 11, at [88] per Clifford and Goddard JJ.