Moss v Police [2015] NZHC 2094 (1 September 2015)

Last Updated: 6 October 2015

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-25 [2015] NZHC 2094

BETWEEN	ALLAN HERBERT MOSS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 August 2015
Appearances:	J Fraser for the Appellant M-J Thomas for the Respondent
Judgment:	1 September 2015

_{JUDGMENT OF MANDER J}

[1] On an afternoon in March 2014, the appellant, Mr Allan Moss, was driving his Toyota vehicle when he entered the Aparima Bridge in Riverton. With him as a passenger was Mr Scott Bradley. Coming towards him from the other side of the bridge was a Hyundai SUV, driven by Ms Sarah Baldwin. She was towing a caravan. Some distance behind Ms Baldwin was Ms Jessica Terrill, driving a van. A collision occurred between Mr Moss’s vehicle, the caravan, and subsequently the van. It would later be established that Mr Moss had a blood alcohol level which exceeded the legal maximum.

[2] Mr Moss was charged with being a person in charge of a motor vehicle causing bodily injury to his passenger, Mr Bradley, while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood. Mr Moss’s blood alcohol level was 217 milligrams of alcohol per 100 millilitres of blood. The charge was laid in its aggravated form because Mr Moss has at least two previous

_{convictions for drink-driving offending.}¹

¹ _{Land Transport Act 1998, ss 61(1)(b) and 61(3A).}

MOSS v NEW ZEALAND POLICE [2015] NZHC 2094 [1 September 2015]

[3] Following a judge alone trial before Judge Cook, Mr Moss was found guilty of the charge. He now appeals that conviction on the sole basis that his driving was not causative of the injuries sustained by his passenger. He submits the decision was against the weight of evidence, and it did not support his conviction to the criminal standard of beyond reasonable doubt.

[4] The single question that therefore arises on the appeal was whether there was a causative link between Mr Moss’s driving and the collisions.

District Court decision on causation

[5] Judge Cook was satisfied that the requirements of causation had been established. The Judge referred to the relevant decisions of R v Ten Bohmer and R v Cheshire.² Judge Cook framed the legal test as requiring a linkage to be proved between the actions of the driver and the injury, which was to be neither insignificant or more than de minimis. Judge Cook framed her analysis as follows:³

I must consider, therefore, what the evidence was around the cause of the accident and apply that to the test and also consider whether the actions of Mr Moss were more than insubstantial in regard to the causative link between his actions and the accident.

[6] In analysing the evidence, Judge Cook reached the following conclusions: (a) Mr Bradley’s (the passenger) evidence did not assist the Court;

(b) Ms Baldwin accepted that she had not checked the pressure of the tyres on her caravan, or the weight distribution of the caravan. She also accepted the crash report finding that her caravan was over the centreline, but did not accept that the position of her caravan over the centreline was the cause of the accident;

(c) Ms Terrill’s (the van driver) evidence was that she saw Mr Moss’s

vehicle come around the corner and onto the bridge quite quickly, that it was really close to the centreline, that it hit the caravan and then her

² _{R v Ten Bohmer [2000] NZCA 189; [2000] 3 NZLR 605 (CA); R v Cheshire [1991] 1 WLR 844 (CA).}

³ New Zealand Police v Moss [2015] NZDC 9495 at [11].

vehicle. She did not resile from her comments as to speed or Mr

Moss’s proximity to the centre under cross-examination; and

(d) the police road crash examination yielded several important results:

(i) the right wheel of the caravan was over the centreline by at least 140 millimetres (or over the whole white line by 90 millimetres);

(ii) Ms Baldwin’s vehicle would have been approximately 65 millimetres inside the centreline; and

(iii) had Ms Baldwin been driving the Hyundai in the centre of her lane, then it is likely the crash may not have occurred.

[7] Taking all these factors together, Judge Cook reached the conclusion that the chain of causation sourced from Mr Moss’s driving had not been broken. The District Court Judge considered that Mr Moss was in breach of his obligation to keep as far left as practicable in the circumstances, as required by the Land Transport (Road User) Rule 2004.⁴

Approach to appeal

[8] On an appeal from conviction, an appeal Court will allow the appeal if it is satisfied the District Court erred in its assessment of the evidence to such an extent there was an error or irregularity which has created a real risk that the outcome of the trial was affected, or that it has resulted in a trial that is unfair or a nullity.⁵ The appeal proceeds by way of rehearing in accordance with the approach outlined in

_{Austin, Nichols & Co Inc v Stichting Lodestar.}⁶

⁴ _{Land Transport (Road User) Rule 2004, r 2.1(1).}

⁵ _{Criminal Procedure Act 2011, ss 232(2)(b) and 232(4).}

⁶ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 (SC).

Relevant law

[9] Section 61 of the Land Transport Act 1998, under which Mr Moss was charged relevantly provides as follows:

61 Person in charge of motor vehicle causing injury or death

(1) A person commits an offence if the person is in charge of a motor vehicle and causes bodily injury to or the death of a person while—

...

(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.

...

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

that causes bodily injury to another person,—

(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 in the case of a first or second offence against this section or section 56(1) or (2), or section 58(1), or section 60(1).

...

[10] Judge Cook correctly identified R v Ten Bohmer as the leading decision on causation in this area.⁷ It is the District Court’s application of the law to be distilled from that decision to the facts of this case which is in dispute. It is therefore necessary to set out the relevant passages from that case at some length:

[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 pp 682 – 683 and R v Cheshire [1991] 3 All ER 670 at p 677. This does not mean that the defendant's conduct must be the main cause of the result, simply that its

⁷ R v Ten Bohmer [2000] NZCA 189; [2000] 3 NZLR 605 (CA).

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] EWCA Crim 1; (1983) 76 Cr App R 279. But note the comments of Lord Hoffmann in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] UKHL 5; [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.

(emphasis added)

Mr Moss’s submission

[11] Mr Moss submitted that Ms Baldwin, the person towing the caravan, had been unable to comment on the speed he was driving his vehicle, nor as to the exact position of his vehicle on the bridge. In particular, she could not comment in relation to how close Mr Moss was to the centreline. He submitted the prosecution were reliant upon the evidence of the van driver, Ms Terrill, who stated she believed Mr Moss was travelling quite quickly and close to the centreline, although she conceded she could not tell how fast Mr Moss was actually travelling.

[12] Mr Moss was critical of the ability of Ms Terrill to have made the observations she claimed. It was submitted that the caravan and the towing Hyundai would have been ahead of her, obstructing her view. Ms Terrill’s evidence was that

she was approximately four to six metres behind the caravan, about two car lengths back, and that she could see over or around the caravan or through the towing SUV to make full observations. Mr Moss questioned the reliability of that evidence, given the position of Ms Terrill’s vehicle behind the caravan.

[13] Mr Moss submitted that Ms Baldwin had accepted she had not checked tyre pressures or weight distribution of the caravan, and that she was not sure if the caravan was swaying at the point of impact. She had accepted the bridge was particularly narrow, and had undulations immediately before the point of impact.

[14] It is uncontested that Ms Baldwin’s caravan was over the centreline. The serious accident report concluded there was enough room on the bridge for Ms Baldwin to have kept her caravan on the correct side of the centreline, with as much as 780 millimetres distance between the left rear tyre of the caravan and the side of the bridge. As she was driving the caravan over the centreline, Mr Moss submitted, to that extent, she was driving negligently.

[15] Mr Moss submitted that having regard to the dearth of evidence from Ms Baldwin regarding the speed and positioning of his vehicle, and the fact she could not exclude the possibility of her caravan swaying at the point of impact, there was a reasonable possibility on the evidence that the chain of causation had been broken. Judge Cook should not have placed the weight she did on the evidence of Ms Terrill, given the submitted limitations on her ability to observe the events, and that had she placed the same amount of weight on the evidence of Ms Baldwin, there must have been a reasonable doubt as to whether Mr Moss’s vehicle was speeding and in the position alleged, to the right of his lane.

[16] Finally, it was submitted that even if Mr Moss was on the left side of the centre lane and had an obligation to keep left, such obligation applies equally to Ms Baldwin. As was apparent from the crash investigation report, her Hyundai and the caravan it was towing could have been driven to the left of the centreline, in which case, it was submitted, the collision was not likely to have happened at all.

[17] Following this analysis, Mr Moss submitted that a causative link could not have been established between his driving and the accident in terms of the approach outlined in R v Ten Bohmer, which he likened to the example provided in that case of the causative link being broken, where a defendant collided with a car which was on the wrong side of the road.

The Crown’s response

[18] The Crown submitted that there was a sufficient evidential basis for Judge Cook’s finding that Mr Moss took the corner leading into the bridge at some speed, which was at the root of him failing on his part to keep well to the left of the approaching caravan. The caravan was being driven slowly over the bridge, and Ms Terrill’s evidence was that she had become alarmed because of the speed at which Mr Moss’s vehicle had come around the corner onto the bridge, close to the white line. Ms Terrill’s evidence was that there was “plenty of room” for Mr Moss to have travelled past the caravan in his lane. While challenged about her ability to observe Mr Moss’s oncoming car, Ms Terrill explained that she could definitely see the vehicle, although she was unsure as to whether that was as a result of being able to see through the caravan windows to the oncoming vehicle or as a result of her being further back from the caravan in front of her.

[19] The Crown submitted that, similarly, there was sufficient evidence adduced to allow Judge Cook to conclude that Mr Moss’s vehicle was proximate to the centreline as he came around the corner and onto the bridge. The Crown emphasised the slow speed with which Ms Baldwin was towing her caravan across the bridge in comparison to the observations of Mr Moss’s relative speed as he came around the corner and sought to negotiate the bridge.

[20] The Crown submitted the issues raised in respect of tyre pressure and the possibility of undulations in the bridge causing the caravan to sway, thereby breaking the chain of causation, was speculative. Countervailing factors included the fact that Ms Baldwin had just picked her caravan up from the garage which had put new tyres on it.

[21] The Crown submitted that the District Court correctly applied the law, as discussed by the Court of Appeal in Ten Bohmer. On the evidence adduced before the trial Court there was a sufficient basis upon which Judge Cook could be sure Mr Moss’s failure to drive as “near as practicable to the left side of the roadway” as required by the Land Transport (Road User) Rule 2004, was causative of the collision and subsequent injury to his passenger.

[22] Referring to the police road crash report, it was acknowledged the caravan was across the centreline, however, equally the investigation revealed that Mr Moss had at least a metre to his left available to him to safely drive past the caravan which was slowly approaching him. In the absence of a yellow line or any prohibition on taking wide vehicles across the bridge, the Crown submitted Ms Baldwin was entitled to be driving the vehicle, and to be, to some extent, over the centreline. The potential hazard caused by the caravan being driven slowly across the bridge would have been clearly visible to any oncoming motorist and required an oncoming driver, such as Mr Moss, to adhere to the Land Transport Rules to drive as near as practicable to the left side of the roadway. It was submitted the positioning of Ms Baldwin’s caravan across the centreline did not give rise to any breakage in the chain of causation, rather it was a part of the factual matrix which existed prior to Mr Moss’s driving fault which gave rise to the crash and the subsequent injury to his passenger.

The evidence

[23] I do not propose to engage in a detailed analysis of the evidence which essentially is not in dispute on the appeal. I will, however, summarise the key propositions arising from the evidence called at the defended hearing.

[24] As to the speed at which Mr Moss was driving, as Judge Cook found, Ms Baldwin was not able to offer any relevant evidence. Mr Moss gave evidence that he was driving at less than 50 kilometres per hour, and his passenger, Mr Bradley, stated he was not concerned with the speed at which Mr Moss was driving. Ms Terrill described Mr Moss’s entry speed onto the bridge as “rather quickly” and “quite quick”. It is apparent that the speed of Mr Moss’s vehicle did catch her

attention at the time. However, in cross-examination, Ms Terrill conceded she could not actually tell how fast Mr Moss was travelling. The crash report does not address this issue. It follows therefore that there was little detailed evidence of the speed at which Mr Moss was travelling, and none from which Mr Moss’s speed was able to be quantified. In relation to Ms Baldwin’s speed, it was uncontested that the caravan was being driven slowly across the narrow bridge.

[25] As to the position of the vehicles on the road, the crash report provides the most accurate picture. The crash report concluded that Mr Moss’s vehicle was “legally on its correct side of the centreline, but well to the right of its available lane”. This is consistent with Ms Terrill’s observation that Mr Moss’s vehicle was very near to the centreline.

[26] Because of the position of Ms Baldwin’s vehicle, which I set out below, it appears Mr Moss would have had around one metre of road space (though possibly less) available to his left to pass the approaching caravan safely. Given the slow speed at which the caravan was being towed, that finding raises the question as to why Mr Moss was not able to safely drive his vehicle past the caravan.

[27] The position of Ms Baldwin’s vehicle is also able to be determined from the crash report. The report states:

10.1 By considering the available lane width, vehicle dimensions and using the evidence that was marked, documented and presented on the file and from the SCU enquiry, the approximate position of the right side of the caravan can be established.

10.2 In this case, there is a defined tyre friction or scuff mark from the left side wheel of the caravan. This is considered the best evidence as to its position at the time that the friction mark was being made.

10.3 A tyre friction mark while showing the approximate position in this case, could be slightly misleading as to make ‘a friction or scuff mark’ requires an amount of movement, force or heat before the mark is generated.

10.4 In this crash, the tyre friction mark or scuff will represent the caravan’s left side wheel maximum distance from the centre of the centreline at the time it was being made. It could be possible that the tyre was in fact closer to the centre of the centreline at the time it, the caravan, was initially struck.

...

10.6 By placing the left tyre of the caravan over the initial tyre scuff mark [it] would place the right side of the caravan over the centre of the centreline by a minimum of 140 mm or over the whole of the centreline width by approximately 90 mm.

[28] The report states further that Ms Baldwin’s Hyundai which was towing the caravan was likely within its lane, although only slightly, at the time the collision occurred. Neither Ms Baldwin nor Ms Terrill were in a position to contradict the report.

[29] I conclude from the report that Ms Baldwin’s vehicle was, at the very least,

140 millimetres over the centreline at the time Mr Moss’s vehicle made contact with the caravan. The investigator’s report does not, however, exclude the possibility that Ms Baldwin was driving further to the right at this critical time. What this shows, however, is that the caravan was 780 millimetres from the left edge of the road, and therefore there was substantial room to the left.

[30] The report also discloses the amount of clearance Mr Moss’s Toyota, Ms Baldwin’s Hyundai and her caravan would have had if they had been driving in the centre of the road. The Toyota vehicle was 1625 millimetres wide, the Hyundai was 1890 millimetres wide, and the caravan was 2300 millimetres wide (approximately 410 millimetres wider than the Hyundai, or 205 millimetres wider per side). The roadway itself was measured at being 2830 millimetres wide from the edge of the road to one side of the white centreline. Thus, if centred, the caravan would have had 265 millimetres per side, the Hyundai 470 millimetres per side, and the Toyota Starlet around 602.5 millimetres per side.

[31] What this establishes is that both Mr Moss and Ms Baldwin failed to meet their obligation to keep as far to the left hand side of the road as practicable, and therefore both were at fault.

Discussion

[32] The Court of Appeal has made it clear that there will be cases where the actions of a defendant while intoxicated cannot be held to have caused the bodily

injury the subject of the charge. There must be a causal link between the driving of the intoxicated defendant and the resulting bodily injury. In my view, the evidence disclosed that Mr Moss was driving very far to the right of his lane. Too far. He had around one metre to his left, and, if driving in the centre of his lane, around

600 millimetres to his left. On this basis alone, the conclusion reached by the District Court that Mr Moss’s driving was a contributory causal source of the injuries to Mr Bradley, which is more than de minimis, was clearly available. In my view, Judge Cook was entitled to be satisfied beyond reasonable doubt of this fact.

[33] The evidence also plainly discloses that Ms Baldwin had room to cross the bridge wholly within her own lane. She did not do that. Thus, my upholding of the finding of Judge Cook in relation to the causative link between Mr Moss’s driving and the injury as more than de minimis does not amount to a finding that Ms Baldwin bears no fault. Both parties had an obligation to keep as far left as possible. Both failed to discharge that obligation. If either party had been driving in the centre of their lane, it is entirely possible the collision would have been avoided.

[34] Importantly, however, the fault that attaches to Ms Baldwin’s driving does not remove Mr Moss’s culpability, nor does it amount to an intervening event breaking the chain of causation linking Mr Moss’s fault to the injury caused. There was a combination of events that lead to the collision, which resulted in the injury to Mr Bradley. Mr Moss’s driving, in particular his failure to keep to the left of his lane, was a substantial and not insignificant contributing fact in why the collision occurred. As the Court of Appeal observed in R v Ten Bohmer, it need not be the main cause, simply that its effect must be more than de minimis. I am satisfied beyond reasonable doubt that Mr Moss’s failure on this occasion was more than de minimis, and the hazard which the caravan presented to him was not an intervening act, albeit it was part of the combination of events which resulted in the collision.

[35] As is apparent from my analysis of the evidence, the finding that Mr Moss was driving at speed is a conclusion which it is doubtful can be established beyond reasonable doubt. This was the subject of the assessment of Ms Terrill who, of all the witnesses, was likely the least well-placed to make an assessment as to the speed of Mr Moss as he entered the bridge. Further, Ms Terrill conceded under cross-

examination that she could not tell how fast Mr Moss was travelling. It is, however, not necessary for me to decide the point. In the circumstances, the problems associated with the evidence of Mr Moss’s speed are largely irrelevant. I agree with the Crown’s submission that Judge Cook’s finding that the speed the appellant was driving onto the bridge was only one facet of the appellant’s driving that supported the Judge’s finding on causation.

[36] Mr Moss was driving too far to the right as he rounded a corner and entered what was a narrow bridge. How he came to be doing that, whether as a result of speed or, indeed, possibly his intoxication, neither of which can be conclusively proved, is not the key consideration or critical to the finding of driver fault. That rests on the finding that Mr Moss was not driving as near as practicable to the left side of the roadway, as he was obliged to do. He offered no explanation for why he positioned his vehicle where he did, close to the centreline. Mr Moss, as a result of that failure, was unable to avoid the hazard the caravan presented and the collision resulted.

[37] Mr Moss no doubt carries some resentment, which at first blush may be considered justified, that he was charged with an offence, and yet Ms Baldwin, who was responsible for her caravan being over the centreline, and therefore also a contributor to the collision, was not charged. The laying of charges, however, is the responsibility of the relevant prosecuting authority in the exercise of its prosecutorial discretion. In the absence of any abuse of process, the only issue for the Court is whether the charge before it has been proved. The fact that Mr Moss was an intoxicated driver, while not directly relevant to the question of proof of a causal link between his driving and the injury, may well have remained a relevant consideration to the police in choosing the particular approach that it has to the prosecution.

Conclusion

[38] Mr Moss has not established on appeal an error or irregularity sufficient to establish that there is a risk there has been a miscarriage of justice. I agree with the District Court that the charge against him has been proved beyond reasonable doubt. In particular, his driving too far to the right hand side of his own lane is sufficient to

establish driving fault which is causatively linked to the collision and therefore to the injury suffered to his passenger, albeit one that was not the sole factor in play on the afternoon of the crash.

Outcome

[39] The appeal is dismissed.

Solicitors:

John K Fraser Law, Invercargill

Preston Russell Law, Invercargill