Moss v Police - [2015] NZHC 2094

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moss v Police

Details

AGLC: Moss v Police [2015] NZHC 2094
Case: [2015] NZHC 2094
Decision Date: 1 September 2015

CaseChat Overview and Summary

The case of Moss v Police involves an appeal against a conviction for driving a motor vehicle while intoxicated and causing injury to a passenger, in breach of the Land Transport Act 1998. The appellant, Mr Allan Moss, was found guilty in the District Court of being in charge of a motor vehicle that caused bodily injury while his blood alcohol level exceeded the legal limit. Mr Moss appeals this conviction on the basis that his driving was not causative of the injuries sustained by his passenger. The central issue is whether there was a sufficient causal link between Mr Moss’s driving and the collision that resulted in injury to his passenger.

The High Court, in reviewing the District Court’s decision, considered the application of the causation test as outlined in R v Ten Bohmer. The court noted that for Mr Moss to be liable, his driving must have caused the injury in a way that was not insubstantial or insignificant. Evidence from witnesses and a road crash investigation report were analysed. The crash report indicated that Mr Moss’s vehicle was positioned too far to the right of his lane, with approximately one metre of space available to pass the oncoming caravan safely. The caravan, driven by Ms Sarah Baldwin, was over the centreline by at least 140 millimetres.

The Court found that despite the caravan being over the centreline, Mr Moss’s failure to keep his vehicle as far left as practicable was a significant contributing factor to the collision. The court rejected Mr Moss’s argument that Ms Baldwin’s negligence broke the chain of causation, holding that both drivers were at fault for not adhering to the road rules. The Court concluded that Mr Moss’s driving was a substantial and not insignificant contributing factor to the collision, affirming the District Court’s finding that the charge against him was proven beyond reasonable doubt.

The appeal was dismissed, and the conviction was upheld. The court emphasised that while both drivers were at fault, the primary issue was whether Mr Moss’s driving was causative of the injury, which it found to be the case. The fact that Ms Baldwin was not charged does not impact the validity of Mr Moss’s conviction.

Orders