Boaza v Solicitor General [2011] CKHC 57; CA04.2011 (22 July 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CA 4/11

IN THE MATTER of Sections 54 and 56 of the Judicature Act 1980-81and Article 60 of the Constitution of the Cook Islands

BETWEEN

LEIGHTON BOAZA
Applicant

AND

THE SOLICITOR-GENERAL
Respondent

Hearing: 22 July 2011

Counsel: Ms L Rokoika for the Applicant
Ms C Evans for Respondent

Judgment: 22 July 2011

JUDGMENT OF C NICHOLSON J

[1] Mr Boaplies for leave to appeaappeal to the Court of Appeal from the judgment His Honour Hugh Williams J delivered on 27 May this year Solicitor-General oppo opposes the application.
<2] Article 60 of the Cthe Constitution gives a right of appeal to the Court of Appeal but this is subject, by virtue of s.54 of udicaAct, to the requirequiremenrement that the High Court grant leave for such an appeal.

[3] Mr Boaza was charged with three offences alleged to have been committed by him on the 30th of January this year. First, that he dr mota motorcycle under the ence of drink or a drug to such an extent as to be incapable of having proper control of suof such motorcycle. That is the charge com referred to as driving under the influence. Secondly, that that he drove the motorcycle when the proportion of alcohol in his blood exceeded the prescribed limit, and thirdly, that he failed or refused to permit a medical officer to take a blood specimen.

[4] Mr Boaza pleaded nilty to all all charges and on the 15th of March this yearer a two day hearing, Hng, His Worshi#160;Matapo, Justice tice of the Peace, found Mr Boaza not guiltall three chee charges and dismissed them. The Soor-Ge appeagainst those decisions. The appeal wasl was hear heard by His Honour Hugh Williams J 60;J on 27&#160this #160;year. At thelusion of his judgment deli delivered that day Williams J said:

"[50>"[50] So what is to happen in this case? Deafirst the failure or refusal to permit the taking of a of a blood specimen, it would seem unlikenlikely that the evidence could be improveuld a further trial be orde ordered. The doctor has given evidence as to what she said to Mr Boao doubt counsel were alie alive in the JP Court to the provisions of s.28E(i)(c) and the position must therefore be that the doctor did not use the phrase "evidl purposes" but used the phrase earlier recounted, a phrasehrase which 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."

[5] I interpolate to state that this aspect was the subject of difference between counsel, Ms Rokoika and M0;Evans, at that the hearing before me today.

[6] Continuing with Williams J's decision

"There is, as mentioned, no evaluation in the Justice's decision as to why he concluded Mr Boaza was he drof the motormotorcycle found close by him outside Mr Okotai's hoThere was anas anas an obligation on the Justice of the Pea give reasons as to why that was the conclusion at which he arrived. Without reasons being eing given, it cannot be concluded that thal process did not go awry awry in that respect, even though for all we know a second acquittal may 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 Boaza drove a motorcyclest ilst under the influence of drink or drug to such an extent as to be incapable of having proper control."

[7] The main ground on which Mr Boaza seekse to appeal to t to the Court of Appeal is that the Judge failed to apply appropriately the common law principle prohibiting double jeopardy for alleged criminaending. Williams J decided that were exceptxceptions ions to that principle and that the case on appeal came within the exceptions.

[8] To an extent his decision appears to conflict with the decision of Dillon J incase Police v Ngau (1992) CKHC 3; CR 727-730.1991 an.1991 (24 Ju24 June 1992).

[9] Ms Rokoika strongly arguainst inst erosion of ommon law principle of double jeopardy. Ms Evans submisubmitted that the Judge was not wrong, that the law had developed to allow re- to be ordered in limited cases, and that this one was of t of them.

[10] It is clear that the decision of His Honour Hugh Wms J involves what is t is a fundamental and important principle of law prohibiting double jeopardy. In my view there is an arguable case that he was wrong. Accordingly, I consider that it is appropriate that the issue be canvassed and authoritatively ruled upon by the Court of Appeal of the Cook Islands. I therefore grant the application for leave to appeal.

[11] Because of the nature of the appeal the Solicitor-General does not seek security for costs and, therefore, no order is made for security of costs on the appeal.

C Nicholson J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.