"The evie evidence failed to prove that the defendant was driving the motorcycle leading to the accident."
[6] Then at para 13 he said:
e>"The Court is of the opinion that the prosecution has not proven the charges beyond reasonable doubt."
[7] He acquitted Mr Boaza of all charges ina 23.
Law: (1) Reasons for Decision
[8] It must at once be observed, though this was just prior to the decision of this Court in R v Quarter[1] that the Justice of the Peace's decision fails almost entirely to wrestle with the facts of the matter, undertake the customary explanation
as to why the evidence of one person is preferred to another, or to give any reasons as to why acquittals followed. In that circumstance
it is again necessary to refer the decision of the New Zealand Court of Appeal in Lewis v Wilson & Horton Ltd[2].
"[75] There is no invariable rule established by New Zealand case lat courts must give reasons for their decisions. That is a ps a
proposition which may seem surprising. Many may think that it is the function of professional Judges to give reasons for their decisions.
And in recent years the general proposition has been steadily eroded in the United Kingdom and Australia, although in Canada the
traditional view seems still to be adhered to (see R v Harrow Crown Court, ex parte Dave [1994] 1 WLR 98; Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119; Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 (CA); Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at p 386 per Mahoney JA; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at p 667 per Gibbs CJ; Souleme Dudley (Hold(Holdings) Pty Ltd (1987) 10 NSWLR 247; R v tt [1i> [1995] 1 SCR 752 at p 753; R v R (D) [1996] 2 SCR 291 at p 336).
[76] There are three main reasons why the provision of reasy Judges is desirable. Others are identified in Singh v gh v Chief Executive Officer, Department of Labour [1999] NZAR 258 at 2-263. Most importantly, thy, the provision of reasons by a Judge is an important part of openness in the administration of justice.
The principle of open justice in criminal proceedings is affirmed by s 138(1) of the Criminal Justice Act 1985 and s 25(a) of the
New Zealand Bill of Rights Act 1990, but it is far older in observance and extends beyond criminal proceedings (although it is of
particular importance here). It yields only where the application of the general rule in the particular circumstances of the case
would frustrate the interests of justice, and then only to the extent necessary (Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 at p 123 per Woodhouse P; Attorney-General v Leveller Magazine Ltd [1979] AC 440 at p 450 per Lord Diploc>Police lice v O'Connor [1992] 1 NZLR 87 at pp 95-96 per ThJ). There were were no special circumstances in the present case which required modification of the principle of
open justice."
.....
"[he principle of open justice serves a wider purpose than than the interests represented in the particular case. It is critical to
the maintenance of public confidence in the system of justice. Without reasons, it may not be possible to understand why judicial
authority has been used in a particular way. The public is excluded from decision making in the Courts. Judicial accountability,
which is maintained primarily through the requirement that justice be administered in public, is undermined.
[80] The second main reason why it said [sic] Judges must give reasons is that failure to do so means that the lawfulness of what
is done cannot be assessed by a Court exercising supervisory jurisdiction. Those who exercise power must keep within the limits imposed
by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided
by the supervisory and the appellate Courts. It is fundamental to the rule of law. The supervisory jurisdiction is the means by which
those affected the judicial orders, but who are not parties to the determination and who have no rights of appeal or rehearing, obtain
redress. Their right to seek such review is affirmed by s 27 of the New Zealand Bill of Rights 1990. It is important that sufficient
reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful.
Without such obligation, the right to seek judicial review of a determination will in many cases be undermined.
[81] The reasons may be abbreviated. In some cases they will be evident without express reference. What is necessary, and why it is
necessary was described in relation to the Civil Service Appeal Board (a body which carried out a judicial function) by Lord Donaldson
MR in R v Civil Service Appeal board, ex parte Cunningham [1991] 4 All ER 310 at p 319:
"... the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly
showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful.
Any other conclusion would reduce the board to the status of a free-wheeling palm tree."
[82] The third main basis for giving reasons is that they provide a discipline for the Judge which is the best protection against
wrong or arbitrary decisions and inconsistent delivery of justice. In the present case it is hard to believe that the Judge would
have granted the order if he had formally marshalled his reasons for doing so.
[83] In New Zealand, the leading case on provision of reasons is R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644 at pp 648-649. The Court declined to lay down "an inflexible rule of universal application", while recognising that "It must always
be good judicial practice to provide a reasoned decision." The same view was taken by the majority in a differently constituted Court
in R v MacPherson [1982] NZCA 95; [1982] 1 NZLR 650. Somers J was prepared to go further. He would have held in that case that it was implicit in the right of appeal conferred by the
Summary Proceedings Act 1957 that the Judge was under a duty to make "such findings or express such reasons or conclusions as in
the particular circumstances are necessary to render the right of appeal effective" (R v MacPherson at p 652). Such reasons, he thought, would not need to be elaborate and would add little to what is usually done in New Zealand Courts.
[84] R v Awatere was considered and applied in R v Jefferies [1999] NZCA 119; [1999] 3 NZLR 211. That case confirmed that while the giving of sufficient reasons for decision is always highly desirable, it is not an inflexible
requirement."
[9] Though not a ground of appeal in this instance, the conclusion has to be that the Justice of the Peace did not give reasons for
the conclusions he reached, nor illustrate anything in the way of the logical path with reference to the evidence that he followed
in acquitting Mr Boahat has repercussions lans later in this judgment and reference will be made back to it at that point.
(2) Transport Amendment Act 2007
[10] The evidence on the question of proof of Mr Boaza's drg and subsequent uent driving revolved at least in part around the provisions
of the Transport Amendment Act 2007 which enacted breathalyser and blood alcohol regimes for the Cook Islands and it is important,
in view of the difficult way in which the Amendment is phrased, to consider the terms of the statute, especially because the Justice
of the Peace in this case referred critically, in para 14, to defence coun frequenequent recourse to s.28F in the 2007 Amendment
and assertions of breach.
[11] The Justices of the Peace's observations also referred to a ruling made at the commencement of tfended hearing disallowing wing
the prosecution from relying on a number of documents disclosed late. Mr Matapo held that disclowas was not only in breach of a
timetable made at an earlier stage of the case, but also in breach of s.28F.
[12] Turno the statute, it enacted a new s.28 of the Transport Act 1966 concerning driving whilst unst under the influence of drink
or drugs and a new s.28A creating the offence of driving with excessive breath or blood alcohol concentration. After defining the
terms of the offences under those sections, s.28B and 28C set out who could be required to give breathalyser and blood specimens
respectively.
[13] The statute in s.28D then provides for the mechanics of the taking of a blood specimen. Section 28E provides for the protection
of persons in hospital in relation to breathalyser tests or blood specimens. Weston CJ in Kureta v olice[3] observed that s.28E is consistent with Article 64 of the Constitution of tok Islands.
[14] Section 28E(1)(a) and (b) set out the terms of the protective reqe requirements before a breathalyser test e administered, and
s.28E(1)(c) provides similar protection in relation to patients from whom whom blood is proposed to be taken. A provision common
to both the breathalyser provisions and the blood provisions of s.28E is that the person on whom the breathalyser test is to be administered,
or from whom blood is to be taken, must be informed in the case of blood "that the blood specimen is being or was taken under this
section for evidential purposes".
[15] Section 28 caused difficulty and wand was the source of the Justice's comment in this case. Although of some length, it is necessary
to set it out in full.
"28F. Evidence – (1) The following provisionssions apply with respect to proceedings for an offence under section 28 or 28A.
(2) Evidence of the proportion of alcohol or any drug in a specimen of breath or blood provided by the defendant shall, in all cases,
be taken into account and it shall be conclusively presumed that the proportion of alcohol or drugs in the defendant's breath or
blood at the time of the alleged offence was not less than in the specimen taken from the defendant.
(3) It shall be conclusively presumed that the result of the analysis of the breath or blood specimen taken from the defendant is
correct, unless the contrary is proven.
(4) Evidence of the proportion of alcohol or a drug in the person's breath or blood may, subject to subsections (6) and (7), be adduced
by the following means –
(a) a notice produced by the approved device by which the proportion of alcohol in the person's breath was measured and a certificate
signed by a constable that the notice relates to a specimen of breath provided by the accused at the date and time shown in the notice,
together with a calibration certificate; or
(b) oral evidence from the operator of the approved device by which the proportion of alcohol in that person's breath was measured
as to the breath alcohol concentration reading given by the device, together with a calibration certificate;
(c) a certificate signed by an approved analyst as to the proportion of alcohol or any drug found in a specimen of blood provided
by the defendant and as identified in the certificate.
(5) A document purporting to be such a notice or such a certificate, or both referred to in subsection (4)(a) of this section, is
admissible in evidence by the prosecutor for the purposes of this section only if –
(a) a copy of it has either, been handed to the defendant when the document was produced, or
(b) has been served on him or her not later than 14 days before the hearing; and
(c) any other document is so admissible only if a copy of it has been served on the accused not later than seven days before the
hearing.
(6) A copy of the document as defined in subsection (4)(a) or subsection (4)(c) of this section is deemed to have been served on the
defendant if it has been handed to him or her, or sent by recorded delivery service to him or her at his or her last known residential
address."
[16] It is clear from the terms of the section in 28F, unha drafted as it s it is - there isubsection (760;(7) despite it breferreferred
to in subsection (60;- are first that under nder subsection (2) and (3) evidence o prop proportion of alcohol in breath or blood
islusivresum be note not less at testing than was the case whse when the specimen was taken and requirequires the result of the analysis
to be tanto account.
[17] [17] Section 28F(4)(a) provides one m#16s - the statute says "may" andoubt the most common mean means of proving the results
of a breathalyser test - subsection (4)(a) permits proof of the breathalyser result by:
(a) A notice produced by the approved device; and
(b) A certificate by a Constable that the notice relates to breath taken from the accused at the time and date shown; and
(c) A calibration certificate.
[18] An alternative means of proving breathalyser offences is provided for by s.28F(4)(b) phrased in the alternative to subsection
(4)hich permits that proof roof may be given by oral evidence by the operator as to the results of the test, plus the reading from
the device and a calibration certificate.
[19] Section&28F(4)(c) relates to excessxcess blood alcohol prosecutions and permits evidence of the alcohol in a person's blood
by means of a certificate signed by an analyst recording the terms that analysis and identification of the person from whom it was
taken.
[20] Section 28F(5) proviin its terms, fms, for evidence of the proportion of alcohol in either breath or blood to be given by documents
listed in the subsection and served as provided by subsection (5). The subsectiounhelpfullpful however, in that, as noted, it makes
subsection (bject to subsection (160;(6) and and there is n is no subsection (7).
[hus it is of no relevance whatever to this case, even thougthough relied on by the Justice of the Peace, because its terms affect
only thef und28F(4)(a). Subsecubsection (5) dot apply to proof in b in breathalyser cases by the s.he s.28F(4)(b) route, nor does
it apply to blood alcohol proof under s.28F(4)(c).
[22] Therefore, the provision in s.28F(5)(c) talking about "any other document" and its admissibility can only relate to breathalyser
cases, although given the identification of notices in subsection (4)(a) he fact that subsectbsection (5)tes to notices and certicertificates,
it is somewhat difficult to see what s.28F(5)(c) relao since it is unlikely to relate to the calibration certificate.
[23] Section  28F(6) ho, which deals with with service, does apply both to proof of breathalyser offences under s.28F(4)(a) and
proof of blood alcohol offences under s.28F(4)(c), but es not apply to proof under s.28F(4)(b), presumably becausecause that means
of proving the offence is largely covered by oral evidence from the operator of the breathalyser device.
[24] Seeing it appears there was no contest as to the mode of service in this case other than the issue to which s.28F(6) is directed,
it would appear that s.28F could only apply to Mr Boaza's pution insofar as i as it permits proof by a signed analyst's certificate
as to the result of the test under s.28F(4)(c).
Section 28 Charge
[26] Turning more specifically to the charges which remain the subject of this appeal, and starting with the charge under s.28 against
Mr Boaza of driving orcycle whle whilst under the influence of drink to such an extent as to be incapable of having proper control,
whilst it is dift in the absence of any reasons why the Justice of the Peace decided the matter as he did, did, it is also difficult
to see how he could reach the conclusion he did on the evidence before him.
[27] As noted in the Justice's factual summary, put shortly, Mr Boaza went out drinkinh somh some of his friends at a number of licensed
premises and the group then dispersed to go home. No person gave evidence about seeing Mr Boaza on a motorcycaving thng the scene
of the last hostelry or driving, and there is some force in Ms Rokoika's suions on Mr  Boaza's behalf the police dice did not
even adduce evidence of ownersh the motorcycle found at that the scene.
[28] The only evidence on the topic was of a Mr Okotai aid that at about 11ut 11 o evening of 29 January he w he was about to go
to bed when he heard a crash outside his house. Going out to check, he found a damagedrcycle on one side of the entrance to his driveway
and Mr&# Mr Binjured lying on the otherother side of the entrance to the driveway, apparently snoring. That was as close as the evidence
came to direct evidence that Mr Boaz riding the motorcycleuycleuestion, though there couldcould only have been one other person who
might have been the driver.
[29] What would have been oould have been for the Justice of the Peace to canvass all all the evidence - particularly that of Mr
Okotai - and come to a coiolusion that there was lack of proof Mr Boaza was driving the myclecycle. That conclusion should have been
buttressed by rs drawn from the evidence.
[30] It would have been equally possible for him to hato have drawn from the evidence an inferensed on Mr Okotai's tess testimond
anyd any other testimony he considered relevant, that Mr Boazain fact been proved toed to be the rider of the motorcycle lying on
the road adjacent to Mr Boazthe evening in questionstion.
[31] But without sofort, some manifest effort on the part of the Justice of thof the Peace, there is no way of knowing how he came
to the bald conclusiot the evidence "failed to p to prove that the defendant was driving the motorcycle leading to the accident".
Section 28C Change
[32] Turning next to the failure or refusal to permit the blood specimen to be taken, although appropriate precedent was cited to
the Justice of the Peace, and although he noted it briefly at the conclusion of his decision - after he had held there was a lack
of proof beyond reasonable doubt - there was again no manifest consideration of those cases such as to lead to the Justice of the
Peace conclusion expressed in paragraph 13 of his jud cited earlierrlier. What amounts to a failure or a refusal to give a blood
specimen has at least in New Zealand in years peen b contested ques question on a number of occasions but it is, at the end of the
day, a matter of judgment based on the evidence.
[33] In Tikao v Ministry of Transport[4], a case cited in the Court below, Holland J held that:
"If the appellant knows and understands he is being asked to permit a specimen of blood to be taken his refusal or failure to permit
the specimen to be taken creates the offence unless it c shown that that refusal oral or failure is not an act of his own volition.
The onus remains on the Crown to prove beyond reasonable doubt that the refusal was a conscious deliberate decision..."
[34] Then again in Neve v Police[5] again a decision of Holland J, the Judge held tha> "A refusal to give permission does not require that the person concerned say 'no' or 'I refuse'. The refusal can arise by simply not
granthe permission sought. The question is whether the person cson concerned is deliberately refusing permission."
[35] In this case the evidence was that after Mr Boaza was from Mr Oko0;Okotai's residencehe hthe hospital for treatment for his
injuries the police first attended the scene at Mr Okotaisidence and then acco accompanied the ambulance to the hospital. Once there,
Senior Constabgai said that as soon as shas she went into the room she could "smell the strong alcohol smell in the room, and I went
straight and approached the doctor. I said, 'Doctor if, she, can take a blood specimen off the defendant' (page 43)."
[36] And then a little later:
"I went straight to the doctor and asked the doctor if she can take a blood specimen."
[37] Doctor Win, the doctoruty on that that occasion, said that after she had examined Mr Band noticed a "strong alco alcoholic breath
on him", she waed by Senior Constable Hagai to "take a blood sample from the patient for the blood alcoholcohol concentration." Doctor
Win thenoache#160;Boaza, toa, told told him that he had a head injury needing stitching, and then 'after the stitching I told him
that we neetake a blood sample from him to check the blood alcohol concentration because it is a policpolice case, and for his further
treatment'."
[38] It was after that the doctor gave Mr Boaz consent form and a pena pen and apparently asked him on a number of occasions to consent.
Mr Boaid nothing and in due coue course handed the unsigned consent form and pen back. That notwanding the blood sample wase was
taken by a Nurse Leito.
[39] The next step in the process is to consider whether that evidence was adequate to satisfy the protective provisions of s.28E(1)(c);
that is to say, when the section requires a patient to be meformed that the blood specimen is to be taken for "evidential purposes"
the section requires s proof of the utte utterancthat phrase or whether it is sufficient that the patient is advised, even if not
in the phre phrasing in s.28E(1)(c), but in an unmisle way that the blood to be taken from him or her will be u be used in a prosecution.
[40] In Kureta, as mentioned, it would appear Weston CJ toe view that the Registegistered Medical Practitioner must utter the words "evidential
purposes" to make the evidence of the concentration in the alcohol in the blood subsequently taken admissible.
[41] Whilst the utterance of the phrase "evidential purposes" is obviously desirable to place the matter beyond doubt, with respect
to the Chief Justice, there may be an argument available that, if the ultimate use of the blood alcohol concentration in evidence
against the patient is made unmistakably clear, utterance of the actual phrase "evidential purposes" is not required by statute.
After all, breathalyser and blood alcohol prosecutions are public interest provisions where persons who have been proved to have
been driving with significant alcohol concentration in their breath or blood - and here Mr Boaza is said te been aboutabout three
and a half times over the prescribed limit - should not be able to escape conviction through the ritualistic use of a particulrase
s absence, if the purport of the phrase is made cade clear lear before the blood is taken.
[42] In this case for example, ha#160;Win said in place of t of the statement earlier noted that the blood alcohol concentration
result was going to be used by the police as evidence against Mr Boaza in any subsequent prosecution for driving with excess alcohol
in his blood, the fact that she might not have used the actual phrase "evidential purposes" - a phrase which is unlikely to be one
a doctor uses regularly ld perhaps not be fatal to l to the prosecution.
Section 76 Judicature Act 1980-81
[43] That brings the Court back to what should be the disposition of this appeal. Looking first at the proper approach to appeals
under s.76 of the Judicature Act, the first point to be noted is that in its terms it gives a right of appeal against acquittals.
That is contrary to accepted constitutional principle in many countries around the world where an acquittal is a complete bar to
any further prosecution against that defendant for that particular offence, but there is nothing in the phrasing of s.76(1) to limit
the right of appeal. It simply says that following the determination of proceedings by a Justice sitting alone or Justices sitting
together, if "any party thereto is not satisfied with the decision therein he may appeal from that decision to a Judge."
[44] Ms Rokon her careful submissioissions drew attention to the decision of Dillon J in this Court in Pov Ne v Ngau[6]. The facts in that decision were similar to the facts in the present case case apart from the appellant for some reseeking leave
to appeal. That application for leave to appe appeal was dismissed by Dillon J as ubt he would have dism dismissed an appeal simpliciter
largely because of his concern that to grant an appeal and a further trial would infringe the rule againsble jeopardy.
[45] He said:
"T
"There is no doubt that s.76 does entitle the Appellant to appeal against the dismissal subject always to the inherent rights of very
long standing relative to the principles of 'double jeopardy'. That is, no person should be required to stand trial a second time
for the same offence in circumstances where the charge against him has been dismissed on the merits at the first hearing."
[46] After dealing with authority Dillon J, page 3 sai>
"All>"All those very authoritative decisions clearly expound the principles applicable and the necessity of preserving the long established
principles which relate to not exposing an accused person to the risk of the rule known as Double Jeopardy."
[47] Without finding that Crown appeals should not be granted because to do so would infringe the rule against double jeopardy, that
rule is deeply entrenched in the criminal law and in this Court's view should be a factor of significant weight to be taken into
account in deciding whether a s.76 appeal should be brought or granted.
[48] However, the double jeopardy rule is well acknowledged as not debarring a second trial where it can be demonstrated on appeal
that an acquittal, or for that matter a conviction, has resulted from some impropriety in the trial below; often that the incorrect
reception or evidence shows the trial process below has gone awry in one way or another. That, for instance, is a frequent ground
on which appeals by persons convicted are allowed and new trials ordered. And if there has been some error in the way the trial at
first instance has proceeded, there is no greater reason to refuse a Crown appeal than to refuse a defence appeal.
[49] Because of the rule against double jeopardy, and in terms of the correct stance to be taken by prosecutors, it is suggested
that the Crown should exercise restraint before bringing appeals against acquittals under s.76. Much the same criteria might apply
to a Crown appeal against an acquittal as apply to other Crown appeals. Restraint is to be exercised before they are brought, and
even if the Crown's stance is shown to be correct, the result is to alter what happened below to the least extent compatible with
justice.
Disposition
[50] So what is to happen in this case? Dealing first with the failure or refusal to permit the taking of a blood specimen, it would
seem unlikely that the evidence could be improved should a further trial be ordered. The doctor has given evidence as to what she
said to Mr Boaza. Not counsel were alie alive in the JP Court to the provisions of s.28E(1)(c) and the position must therefore be
that the doctor di use the phrase "evidential purposes" but used the phrase earlier recounted, a phrase whichwhich does not go so
far as to say the results of the blood specimen would be used in evidence.
[51] In those circumstances, and given the proper Crown approach suggested to s.76 appeals, the conclusion is that the Crown has
made out no basis for a further trial on the failure or refusal to permit a blood specimen to be taken charge, and the appeal is
accordingly dismissed in relation to that matter.
[52] That leaves what is colloquially called the driving under the influence charge.
[53] Here the Crown is on stronger ground, though not necessarily a ground raised in its Notice of Appeal. There is, as mentioned,
no evaluation in the Justice's decision as to why he concluded Mr Boaza was not the driver o the motorcycle found close by him outside
Mr Okotai's home. Thas an obli obligation on the Justice of the Peace to give reasons as to why that was the conclusion at which
he arrived. Wi reaseing given, it cait cannot be concluded that the trial process did not go awry in that resp respect, even though
for all we know a second acquittal might follow a second trial.
[54] So, the Crown is on firmer ground in its s.76 appeal as far as that charge is concerned. The appeal is allowed to that extent.
The case is remitted to the Justices of the Peace for a further hearing on the charge that Mr Boaove a motorcycle whilst ilst under
the influence of drink or drug to such an extent as to be incapable of having proper control.
[55] In the circumstances of that mixed conclusion there is no basis for making any order as to costs.
MS EVANS: I do note that the information did have in its particulars the extent to -erms of capability, drivinriving with a proper control issue,
the statute of course doesn't - has got none of that. An amended iation or amended particulars would be the appropriate way to go
in that regard?
THE COURT: That's an issue you can raise in the Justice of the Peace.
MS EVANS: Thank you, sir.
THE COURT: Ms Ro, anything further?
MS ROKOIKA: Sir, just on the ground that has been allowed, this is with reference t incapability provision of the information that has been laid;
I guess I want to pose the sthe same question as to how that is going to be dealt with in terms of re-trial given the charges that
was so-called "appealed" is wrong in terms of the statutory provisions of s.28 of the Transport Amendment Act.
THE COURT: As I've said to Ms Evans, that's a matter that will need to be dealt with by a Justice of the Peace. I'm not trying the charge in
its present form or in any amended form.
MS ROKOIKA: Very well, sir.
________________________<____
Hon Hugh Williams J
Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.
[1] JP Appeal 1/2011
[2] [2000] NZCA 175; [2000] 3 NZLR 546 at pages 565-567
[3] JP Appeal 2/10, 20 April 2010, para 13
[4] [1986] 2 CRNZ 703
[5] sup> [1994] 11 CRNZ 374
[6] [1992] CIHC 3
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