The Queen v Ten Bohmer [2000] NZCA 189; [2000] 3 NZLR 605; (2000) 18 CRNZ 173 (5 September 2000)

Last Updated: 8 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 242/00

THE QUEEN

V

MARINUS TEN BOHMER

Hearing:	28 August 2000
Coram:	Thomas J Goddard J Panckhurst J
Appearances:	D S G Deacon for Appellant M J Thomas and K Campbell for Crown
Judgment:	5 September 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The question of law

[1] Mr Ten Bohmer has appealed against his conviction on a question of law. The question comes before the Court by way of a case stated from the District Court under s 107 of the Summary Proceedings Act 1957.

The background facts

[2] At around 9:30pm on 29 June 1999, Mr Ten Bohmer was driving his Toyota Hiace van in a southerly direction on The Parade, Island Bay. He had come from the Island Bay Services Club where he had spent the evening. Mr Ten Bohmer had dined and consumed some wine at the Club. Apparently, he then slept for about an hour-and-a-half. Upon waking he drank at least two glasses of whisky before leaving.
[3] At the same time as Mr Ten Bohmer was driving south, a motorcyclist was driving north along The Parade. At the intersection of The Parade and Humber Street, Mr Ten Bohmer made a right-hand turn across the motorcyclist’s path and the two vehicles collided. Mr Ten Bohmer said in evidence that he felt the impact of the collision but did not realise the direction from which the impact had occurred. He drove forward into Humber Street, got out of his vehicle and went to investigate the crash site. The motorcyclist was lying under his bike, which was extensively damaged. The Police were duly called. When they arrived at the scene, a detective noticed that Mr Ten Bohmer’s breath smelt of alcohol. Upon administering an evidential breath test, Mr Ten Bohmer registered 802 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms per litre.
[4] The motorcyclist later died as a result of the injuries suffered in the collision.

The charge

[5] Mr Ten Bohmer was charged under s 61(1)(a) of the Land Transport Act 1998 with, being a person in charge of a motor vehicle, causing the death of the motorcyclist while the proportion of alcohol in his breath exceeded 400 micrograms per litre of breath. At a defended hearing in the District Court, Mr Ten Bohmer gave evidence suggesting that, although he was over the limit, he did not accept that this factor caused the accident. His counsel argued that, in order to convict Mr Ten Bohmer under s 61(1)(a), the Crown was required to prove a causative link between the excess breath alcohol level and the collision.
[6] In the District Court, Ongley DCJ held that the Crown was not required to prove such a link and convicted Mr Ten Bohmer. He was sentenced to 12 months imprisonment and ordered to pay $12,026 in reparation.
[7] On request, Ongley DCJ stated a case to the High Court in these terms:

I determined that:

Under section 61(1)(a) of the Transport Act 1988 all that the informant was required to prove was that:

1. The defendant was in charge of a motor vehicle; and

2. That the defendant’s driving caused the death of the deceased; and

3. That the proportion of alcohol in the defendant’s breath as ascertained by the subsequent evidential breath test exceeded 400 micrograms of alcohol per litre of breath;

The question for the opinion of the Court is whether I was correct in law to determine on a charge under Section 61(1)(a) of the Land Transport Act 1988 that proof of the presence of excess breath alcohol is a temporal consideration and need not be proved to be causative of the event from which death resulted.

[8] Ellis J in the High Court answered this question in the affirmative, and dismissed Mr Ten Bohmer’s appeal. Hence, Mr Ten Bohmer’s appeal to this Court.

The legislative and judicial history

[9] Mr Deacon, who appeared for Mr Ten Bohmer, both in the Courts below and in this Court, argued that causation has long been a requirement of the sections preceding s 61 and that the 1998 Act does not manifest an intention to change this settled interpretation. Accordingly, before examining the reasoning of the Courts below, it may be helpful to set out the legislative and case law history of s 61.
[10] Section 61 reads as follows:

61. Person in charge of motor vehicle causing injury or death - (1) A person commits an indictable offence if the person is in charge of a motor vehicle on a road and causes bodily injury to or the death of a person while-

(a) The proportion of alcohol in the breath of the person in charge, as ascertained by an evidential breath test subsequently undergone by that person under section 69, exceeds 400 micrograms of alcohol per litre of breath; or

(b) The proportion of alcohol in the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken from that person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

(2) A person commits an indictable offence if the person is in charge of a motor vehicle on a road and causes bodily injury to or the death of a person while the person in charge is under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle.

(3) If a person is convicted of an offence against subsection (1) or subsection (2),-

(a) The maximum penalty is imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000; and

(b) The court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more.

(4) The imposition of a mandatory disqualification under this section is subject to section 81.

[11] Section 62 complements s 61. It provides:

62. Causing injury or death in circumstances to which section 61 does not apply - (1) A person commits an indictable offence if the person causes bodily injury to or the death of a person by carelessly driving a motor vehicle while driving the vehicle while under the influence of drink or a drug, or both, but not so as to commit an offence against section 61.

(2) If a person commits an offence against subsection (1),-

(a) The maximum penalty is imprisonment for a term not exceeding 3 years or a fine not exceeding $10,000; and

(b) The court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more.

(3) The imposition of a mandatory disqualification under this section is subject to section 81.

[12] The maximum penalty for conviction under s 61 is five years imprisonment or a fine not exceeding $20,000. The maximum penalty under s 62 is three years imprisonment or a fine not exceeding $10,000.
[13] The precursors to ss 61 and 62 were ss 55 and 56 of the Transport Act 1962. Relevantly, they read as follows (immediately before repeal):

55. Causing bodily injury or death through reckless or dangerous driving or driving while under the influence of drink or drugs – (1) Every person commits an offence who causes bodily injury to or the death of any person by the driving of a motor vehicle recklessly or at a speed or in a manner which, having regard to all the circumstances of the case, is dangerous to the public or to any person.

(2) Every person commits an offence who, -

(a) While under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle; or

(b) While the proportion of alcohol in his breath, as ascertained by an evidential breath test undergone by him pursuant to section 58B of this Act, exceeds 400 micrograms of alcohol per litre of breath; or

(c) While the proportion of alcohol in his blood, as ascertained from an analysis of a blood specimen taken from him pursuant to section 58C or section 58D of this Act, exceeds 80 milligrams of alcohol per 100 millilitres of blood, -

is in charge of a motor vehicle and by act or omission in relation thereto causes bodily injury to or the death of any person.

56. Causing bodily injury or death through careless use of motor vehicle - (1) Every person commits an offence...who causes bodily injury to or the death of any person by carelessly using a motor vehicle.

(1A) Every person commits an offence who causes bodily injury to or the death of any person by carelessly using a motor vehicle while –

(a) Driving the motor vehicle at a speed in excess of any limit of speed prescribed by this Act or by any regulations made under this Act; or

(b) Driving the motor vehicle while under the influence of drink or a drug but not so as to commit an offence against s 55(2) of this Act; or

(c) Driving the motor vehicle in such a manner as to commit an offence against any regulations made under this Act prescribing the manner in which a driver may overtake another vehicle or prescribing the road on which a driver may drive his motor vehicle.

[14] The legislative and case history of ss 55 and 56 of the Transport Act 1962 was comprehensively reviewed by this Court in R v O’Callaghan [1985] 1 NZLR 198. The appellant in that case had been convicted under s 55(2)(c), the predecessor of s 61(1)(b). McMullin J, giving the reasons for the judgment of the Court, summarised the three leading Court of Appeal decisions on this issue.
[15] The first case was R v Johnson [1951] NZLR 253, decided by a Full Court of seven Judges, who were asked to consider s 39(1) of the Transport Act 1949, the predecessor of s 55(2) of the 1962 Act. Section 39(1) provided:

(1) Every person commits a crime, and is liable on indictment to imprisonment for a term not exceeding five years, or to a fine not exceeding five hundred pounds, who recklessly or negligently drives any motor-vehicle and thereby causes injury to any person; or who, while in a state of intoxication, is in charge of a motor-vehicle and by an act of omission in relation thereto causes injury to any person. (Emphasis added).
The Court thought that it was plain that what had to be proved for a conviction under the second part of s 39(1) was that: (1) the accused was in a state of intoxication; (2) that while in that state he was in charge of a motor vehicle; and (3) that by an act or omission in relation thereto (that is, in relation to the motor vehicle) he caused injury to any person. The Court held (at 260), “the words ‘by an act or omission in relation thereto causes injury’ settle that something more must be shown than that the accused, while intoxicated, was in charge of a motor vehicle which has been involved in a happening which has resulted in bodily injury”. It must be established that, while intoxicated and in charge, the accused by some act or omission in relation to the motor vehicle caused bodily injury.

[16] McMullin J next referred to R v Wolter [1959] NZLR 1178. The Court held that the “something more” indicated by the phrase “by an act or omission in relation thereto causes injury” in R v Johnson also required the Crown to prove a link between the intoxication and the resulting accident. Cleary J, for the Court, stated (at 1183) that a judge should direct a jury they must satisfy themselves that “the act or omission was of a character which should not have happened if the accused had not been under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle”.
[17] Finally, McMullin J discussed R v Carey [1966] NZCA 18; [1966] NZLR 963 in which this Court approved the application of the “Wolter direction” to s 55(2) of the 1962 Act (which had by this stage been amended to take account of blood alcohol testing).
[18] At the end of this review, McMullin J concluded that, despite some criticism (particularly in Police v Mossop [1981] 2 NZLR 479), the approach in Wolter and Carey should continue to be applied to s 55(2) as amended in 1978. His Honour stated (at 200) “...we think it can still be said that in re-enacting the section [s 55(2)] in substantially the same form, after its attention had twice been called to the ambiguous nature of the provision, the legislature has not expressed disapproval of the interpretation placed upon it by this Court”.
[19] The question for this Court is whether the interpretation given by the Court in R v O’Callaghan to s 55(2) of the 1962 Act (as amended) applies to s 61(1) of the 1998 Act.

The decisions in the Courts below

[20] Ongley DCJ decided that the line of authority culminating in R v O’Callaghan was “founded on an interpretation that came about only because of the presence of the phrase, ‘by an act or omission in relation thereto’” in the previous legislation. This clause is omitted from s 61. “It must follow”, he reasoned, “that O’Callaghan and the preceding cases are not authority for the interpretation of the new s 61. It must be read according to its natural and ordinary meaning having regard to the evident intention of the legislature”. The learned Judge went on to note that there were no words in s 61 to indicate that anything other than the three elements listed in the case stated were required to be proven.
[21] Ellis J agreed with the District Court Judge’s decision, and answered “yes” to the question in the case stated. But he did so for a different reason. Ellis J did not consider that the omission of the words “by an act of omission in relation thereto” effected any significant change in the provision. His view was that these words “refer to the driving or being in charge of a motor vehicle, and not the intoxication”. Thus, he declined to accept that even these words supported the requirement of a link between the intoxication and the accident.
[22] Ellis J preferred to rest his judgment upon the interpretation of the word “while” in s 61(1), found at the end of the phrase “causes bodily death or injury”. He considered that the word “requires a temporal connection only”, not a causative one. Thus, it need only be shown that the accused was in charge of a vehicle and caused death or bodily injury at the same time as having excess breath alcohol under subs (1)(a); excess breath alcohol under subs (1)(b); or being under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle under subs (2). It need not be shown that these three factors were causative of the death or bodily injury.

The preferred interpretation

[23] In our view Ongley DCJ was correct to observe that the R v O’Callaghan line of authority was founded on an interpretation of the phrase “by an act of omission in relation thereto” which does not appear in the present provision. It is true that the Court in R v O’Callaghan addressed the meaning of the word ‘while’, which is retained in the present s 61. The important point is that the Court’s conclusion was that “in re-enacting the section in substantially the same form, after its attention had twice been called to the ambiguous language of the provision, the legislature has not expressed disapproval of the interpretation placed upon it by this Court” (at 200). The Court simply deferred to the interpretation established in R v Wolter and R v Carey, and this interpretation was based squarely and explicitly on the meaning of the words “by an act or omission in relation thereto”.
[24] We also agree with Ellis J’s observation, however, that the interpretation given to this phrase in R v Wolter and subsequent cases was a strained interpretation. The phrase more naturally refers to an act or omission related to the driving of the vehicle than it does to an act or omission related to the accused’s level of intoxication. This point appears to have been noted by the Court in R v Johnson which described the third element requiring proof as being “that by an act or omission in relation thereto (which means in relation to the motor vehicle)”. (Emphasis added).
[25] In our view it would be inappropriate to attempt to graft the reasoning in the Court’s prior decisions on to the language of s 61. It is preferable, we believe, to approach the task of interpreting the section afresh. Notwithstanding Mr Deacon’s capable submissions, we can see no reason why the language of s 61 should not be given its natural and ordinary meaning. Once this approach is taken, there is little room for debate. The Crown is required to prove the three elements spelt out in the section, namely;

• That the defendant was in charge of a motor vehicle;
• That the fact that the defendant was in charge of or driving a motor vehicle caused the death of the deceased; and
• That the proportion of alcohol in the defendant’s breath or blood exceeded the statutory prescribed limit.

[26] We do not accept Mr Deacon’s avowal that the omission of the words “by an act or omission in relation thereto” was an oversight on the part of the legislature. It is inconceivable that R v O’Callaghan and the authorities reviewed in that decision were not known to the draftsperson. The case law was long-standing and had formed the basis of many prosecutions under the earlier legislation. Having regard to the significance of the words “by an act or omission in relation thereto” in earlier decisions, therefore, it was open to the draftsperson to conclude that, if those words were omitted, the effect of those decisions would be abrogated. The deletion of those words, it could reasonably have been thought, would necessarily lead to a change in the approach adopted by the Courts.
[27] It follows that the death of the deceased is not required to be related to the defendant’s breath or blood alcohol level. The earlier cases are inapplicable to s 61.
[28] This does not mean to say that the defendant would be liable for conviction under s 61 if the fact he was in charge of a motor vehicle was not causative of the deceased’s death. The section expressly applies where the defendant is in charge of a motor vehicle and “causes” bodily injury to or the death of a person. The word “causes” is to be given its conventional meaning in criminal law. The behaviour of the defendant must be linked to the prohibited result in a way which can be described as not ‘insubstantial’ or not ‘insignificant’. See R v Myatt [1991] 1 NZLR 674 (CA), at 382-383 and R v Cheshire [1991] 3 All ER 670, at 677. This does not mean that the defendant’s conduct must be the main cause of the result, simply that its effect must be more than de minimis. Once established, the link may, of course, be broken by an intervening act. A “free, deliberate and informed” act of a third party will usually be considered an intervening act. See R v Pagett (1983) Cr App R 279. But note the comments of Lord Hoffman in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481 (HL) to the effect that this approach may not be appropriate to every provision creating a criminal offence.
[29] Consequently, if the deceased’s death is caused by the defendant’s driving and the defendant’s breath or blood level exceeds the permissible limit he or she will have committed an offence under the section. In the case of an example which was much discussed at the hearing, namely, that of a pedestrian who is killed by suddenly running out in front of the defendant’s car, it is arguable that the defendant did not “cause” the deceased’s death. Depending on the facts, it would be open to the Court to decide that the cause of the pedestrian’s death was his or her own act in suddenly running out in front of the car. Similar cases would be ones where an intoxicated defendant is sitting in a parked car which is hit by a renegade cyclist or where the defendant, when driving, is hit by a car travelling on the wrong side of the road. Liability in such cases may not be established on the basis that the defendant’s conduct cannot be said to have caused the resulting bodily injury or death.
[30] It is to be emphasised, however, that the requirement of causation does not import any notion of fault. The defendant, by virtue of being in charge of or driving a motor vehicle, may cause the death of the deceased without being guilty of careless or reckless driving or the like. The question is whether the defendant’s driving caused the deceased’s death, not whether any act or omission on his or her part amounting to negligent or otherwise blameworthy conduct caused the death. The element of fault is not to be reintroduced into the provision by way of an expanded approach to causation.
[31] We do not consider that the interpretation which we have adopted creates an anomaly between s 61 and s 62. Mr Deacon’s forceful argument to this effect was based on the assumption that, because carelessness is an element in an offence under s 62, that offence must be regarded as being more serious than an offence under s 61. Yet, s 61 carries significantly higher penalties. To the contrary, in our view, the legislature obviously considered that s 62 created a lesser offence in that it applies only if s 61 does not. The offence under s 61 is committed in the course of the commission of another serious offence, that is, driving with excess breath or blood alcohol. What must be established under s 62, among other things, is that the vehicle was driven carelessly, but this does not mean that the offence is more serious than an offence where it is positively established that the defendant’s alcohol level is over the prescribed limit. In other words, s 61 relates to persons who are not entitled to be in charge of or drive a motor vehicle. Other provisions accept that a person is entitled to be in charge of or drive a motor vehicle but provide that in doing so he or she may be guilty of an offence if their driving does not meet the requisite standards. Section 62 is in this latter category.
[32] We therefore consider that, in enacting s 61, Parliament deliberately intended to provide a strict provision based on the view that a person whose breath or blood alcohol level is in excess of the prescribed statutory limit is not entitled to be in charge of or to drive a motor vehicle, and that if he or she does so they must accept responsibility for any bodily injury or death which they may cause. Although s 61 was not mentioned in the Parliamentary Debates or the Explanatory Note to the Bill in which it was included, it was part of a legislative measure designed to reflect the seriousness of driving with excess breath or blood alcohol levels. The legislation, including s 61, was consistent with Parliament’s perception of contemporary public opinion.
[33] We would therefore dismiss the appeal and confirm the affirmative answer to the question in the case stated given in the Court below.

Solicitors
D S G Deacon, Solicitors, Wellington for Appellant
Crown Law Office, Wellington for Crown