The Queen v Ten Bohmer - [2000] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 242/00

THE QUEEN

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

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

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.
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.
The motorcyclist later died as a result of the injuries suffered in the collision.

The charge

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.
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.
On request, Ongley DCJ stated a case to the High Court in these terms:
I determined that:
Under section 61(1)(a) of…

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 The Queen v Ten Bohmer

Details

AGLC: The Queen v Ten Bohmer [2000] NZCA 189
Case: [2000] NZCA 189
Decision Date: 5 September 2000

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Marinus Ten Bohmer against his conviction for causing the death of a motorcyclist while driving with an excess alcohol level in his breath. The case was heard by Thomas J, Goddard J, and Panckhurst J on 28 August 2000 and judgment was delivered on 5 September 2000. The central legal issue was whether, under s 61(1)(a) of the Land Transport Act 1998, the Crown was required to prove a causative link between the excess breath alcohol level and the collision, or if the mere presence of excess alcohol was sufficient. The District Court had held that no such causal link needed to be proven, leading to Ten Bohmer’s conviction. Ten Bohmer argued that the omission of specific wording from the Act necessitated a causal link, contrary to the District Court’s ruling.

The Court of Appeal examined the legislative and judicial history of the relevant sections of the Act, noting that earlier cases required proof of a causal link due to specific wording in the previous legislation. However, the Court concluded that the absence of such wording in s 61 indicated a deliberate legislative choice to simplify the requirement to the presence of excess alcohol at the time of the incident. The Court rejected Ten Bohmer’s argument that the omission was an oversight, noting the well-established case law and the deliberate choice by the legislature to alter the wording. The Court emphasized that the causation requirement in criminal law did not reintroduce notions of fault but merely ensured a temporal connection between the driving and the resulting death or injury. The Court found no anomaly between s 61 and s 62 of the Act, affirming that s 61 was intended to address the serious issue of driving with excess alcohol levels, imposing strict liability for any resulting harm.

The Court of Appeal dismissed Ten Bohmer’s appeal, affirming the District Court’s conviction and sentence. The Court confirmed that under s 61(1)(a), the Crown needed only to prove that Ten Bohmer was in charge of a motor vehicle, that he caused the death of the motorcyclist, and that his breath alcohol level exceeded the legal limit at the time of the incident, without needing to prove causation between the alcohol level and the collision.

Orders