Crescente, Lionel v D.P.P [2009] NSWDC 129

New South Wales District Court

CITATION: Crescente, Lionel v D.P.P [2009] NSWDC 129

HEARING DATE(S): 06/01/2009 and 23/01/2009

JUDGMENT DATE: 23 January 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Conviction appeal dismissed. $230 fine and $70.00 court costs confirmed.

CATCHWORDS: Criminal Law - Conviction Appeal from Local Court - Australian Road Rules - Use of mobile phone by driver - meaning of mobile phone - device held in hand capable of conveying or activating carriage service - Bluetooth capable of doing so.

LEGISLATION CITED: Australian Road Rules - Rule 300

PARTIES: Lionel Crescente Director of Public Prosecutions

FILE NUMBER(S): 2008/12/1128

SOLICITORS: Crown: Ms Barnes Defence: Self-represented

JUDGMENT 1. On 6 January 2009 the matter of Lionel Crescente v The Director of Public Prosecutions came before me. It was an all ground appeal. 2. The physical facts were not much in dispute. That is to say that at a point in time at about 11.25am on Bourke Street, Zetland on 1 March 2007 the appellant was at an intersection near Elizabeth Street. When he pulled up he pulled up next to a fully marked highway patrol vehicle also travelling in Bourke Street. That vehicle was then driven by an Acting Sergeant of Police, Damien Preston. He saw the appellant pull up with a silver grey black flip phone in his left hand, pressed against his left ear. The Appellant's lips were moving, he seemed to be having a conversation on the phone. That conversation lasted for five or six seconds. Sergeant Preston says the appellant turned and looked at him and then immediately dropped the phone onto his shoulder, moved his shoulder and the phone fell down. 3. Now that I think about it the appellant's version is different. 4. The appellant agrees that he was in Bourke Street, waiting at the traffic lights alongside the officer and that he was pulled over. He was, he says, not using a mobile phone, but using a Bluetooth electronic device which was operated via the wheel where you could turn it on and off, and that in his ear he had a device so that he could hear. He immediately told the officer, he said, when the officer came to him, "I've got Bluetooth." The officer said, "You aren't allowed either on Ps to be on Bluetooth" and he issued him a ticket. 5. In his evidence before the magistrate he also said as to the Bluetooth: "Somebody rings you and presses the button and it comes on and you can hear him". He said he did have a phone in his car, but he had his Bluetooth, very similar, he had something in his ear that clips into the ear then. 6. He has brought into court today material which he says supports him, namely a pamphlet "Mobile phones and driving" issued by the RTA. The picture on the front is what is known as a flip top conventional mobile phone, so far as I can tell. On one part of the inside of the pamphlet it says, "It's The Law", under that heading it says "It is illegal to drive or ride a vehicle when using a handheld mobile phone". Then in an orange highlighted section it says "Using a mobile phone can lead to poor steering, drifting across lanes, driving in erratic or overly slow manner". Then comes this paragraph; "While mobile phones can be used to report accidents and call for help they can also cause crashes when improperly used while driving". In the body of the report under a white heading there is; "Hands-Free Mobile Phones" then this appears; "If you are a fully licensed or a P2 driver you must (my emphasis) talk on a hands-free phone while driving. Make sure it is a hands-free phone that is set up and working before you start driving. Keep the conversation short, do not engage in complex or emotional conversations. Tell the person on the other end that you are driving and may have to end the call. Never send a text message. End the call if it is distracting you from driving". Frankly that material is misleading. The question of whether a mobile phone can be used to report an accident may also be misleading. I would have thought only in cases of necessity could a mobile phone be used, because of the provision (Road Traffic Rule) of 300 Mobile Phones by Drivers (Except holders or Learner or Provisional P1 Licences). "The driver of a vehicle, (and note this please), except an emergency vehicle or police vehicle, must not use a mobile phone that the driver is holding in his or her hand while the vehicle is moving or is stationary but not parked, unless the driver is exempt from this rule under another law of this jurisdiction". Further down: "A mobile phone does not include a CB radio or any other two-way radio" I pause to interpolate that is probably because they are usually affixed in the vehicle. The Rule continues: "Use. In relation to a mobile phone includes the following: holding the phone to or near the ear, whether or not engaged in a phone call, writing, sending or reading a text message on the phone, turning the phone on or off, operating any other function of the phone". 7. There are two versions before the court. But the first issue to be decided is this, is a mobile phone that incorporates a Bluetooth function a mobile phone? Any device which activates a carriage service so that there can be a transmission of a telecommunication and is portable constitutes a mobile phone. If the Bluetooth device is one capable of being held in the hand and capable of conveying or activating a carriage service then it constitutes a mobile phone. What other functions it does, does not matter. 8. So the next question then is one of whom do I accept? If the appellant's account was correct, and assume for the moment that he was not a provisional P1 license driver and the phone was not held in his hand while the vehicle was moving this provision would not appear to apply. 9. When the allegation is (first) put to him, by the police officer, his response to the allegation is "This is a Bluetooth"; not "I was not holding anything in my hand". The description given by the officer is of a mobile phone being held in his hand. If the mobile phone is being held in his hand then clearly that is a breach of the Road Traffic Rule 300. 10. The magistrate, who had the opportunity of observing both witnesses, came down in favour of the prosecution. It can only be that he did so because there was otherwise one on one, the Magistrate found him to be an unreliable witness. The magistrate said, "We can all wrap the untruth up and present it as the truth. We can bend the truth. We can call them white lies, we are all capable of doing it. On this occasion I have two people who agree to being in the same place at about the same time and then they are diametrically opposed as to who gets in and who gets out of the car. More appropriately I have a police officer who is supposed to have effectively made up a conversation about not having P plates and then issuing P plates and then not issuing a ticket for P plates and had just given a warning. Why, if he was going to stitch up Mr Crescente, why would he do he that? Mr Crescente says, 'Well it was not me he spoke to'. I do not know how Mr Crescente can say it was not me he spoke to on the day on that occasion, because I had just been to the AMMI Insurance". 11. What is clear from his Honour is that his Honour has found the appellant unreliable. I have not the advantage of seeing the police officer. I have to rely on his Honour's judgment as to credibility. That being the case, whether the device that was in his hand was a Bluetooth or whether the device in his hand was your normal average mobile phone, the Appellant was using it in his hand . At the end of the day I am satisfied beyond reasonable doubt that the offence has been proved. Thereafter there was discussion as to whether the Appellant was appealing against the penalty imposed. HIS HONOUR: Let me just make the formal orders: