Reported Decision : 152 A Crim R 379 62 NSWLR 604 New South Wales Supreme Court CITATION : DPP v CHRESTA [2005] NSWSC 233 HEARING DATE(S) : 14/04/2005 JUDGMENT DATE : 14 March 2005 JURISDICTION : Common Law JUDGMENT OF : Greg James J at 1 DECISION : Declaration in accordance with paragraph 2 of the summons; otherwise summons dismissed CATCHWORDS : Criminal Law - Traffic Offences - Use of a hand held mobile phone - When criminal. Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 LEGISLATION CITED : Road Transport (Safety and Traffic Management) Act 1999 Crimes (Local Courts Appeal and Review) Act 2001 PARTIES : DIRECTOR OF PUBLIC PROSECUTIONS v Nathalie CHRESTA FILE NUMBER(S) : SC No 13744/2004 Plaintiff: Ian Bourke COUNSEL : Defendant: In person SOLICITORS : Plaintiff: S C. Kavanagh, acting solicitor for the DPP. LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Mr A W Railton LCM - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY LIST Greg James J MONDAY 14 MARCH 2005 13744 of 2004 DIRECTOR OF PUBLIC PROSECUTIONS v NATHALIE CHRESTA JUDGMENT 1 HIS HONOUR: This is an appeal by the Director of Public Prosecutions of New South Wales in respect of the decision of a Local Court magistrate made on 26 July 2004 dismissing a charge brought against the defendant, Miss Nathalie Chresta, for a breach of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, which regulation incorporates into the law of New South Wales the Australian Road Rules. The regulation is made under the Road Transport (Safety and Traffic Management) Act 1999. 2 The appeal is brought as of right under s 56 of the Crimes (Local Courts Appeal and Review) Act 2001. Such an appeal may be brought "only on a ground that involves a question of law alone". On determining such an appeal, the Court may set aside the order made by the magistrate and make such other order as it thinks just. 3 The magistrate in dismissing the charge acquitted the defendant. The magistrate had held a prima facie case against the defendant on the charge brought against her. That charge is referred to in the Court attendance notice, which is annexure "A" to the affidavit of Rodney Vincent Paul, solicitor, sworn 11 November 2004. 4 The details of the offence there shown allege that the defendant did "drive using hand-held phone". (Police officers gave evidence before the magistrate that they observed the defendant holding a mobile phone to her ear whilst the vehicle was in motion.) 5 The defendant gave evidence to the following effect: "A. Well I notice that I seem to have conflicting view with the officers in regards to the time span that I should have held a phone next to my phone and as I was saying in my statement, I did have the phone in my hand merely to switch it off so my son wouldn't wake up. That may have looked for a moment like I did talk on the phone but I actually didn't and I tried to get invoice, a detailed invoice from my phone company which shows that I didn't go - do any outgoing calls. They don't have any records of incoming calls. I can't prove that side. What I can prove is that my phone has a speaker function, which requires me to just press one button, and then I can just leave it untouched. So I never really have the need to put the phone next to my ear for longer than really a second. I'm not using the phone in the car to speak." 6 The defendant gave evidence of the hand movements she had been making, what hand she had used, that she had not been talking; she referred to her friend sitting in the seat next to her and her phone ringing in the back which was at the friend's feet: "I asked her to get the phone out and she was fiddling around with it and it was ringing and I didn't want my son to get out, to wake up so I took the phone from her and switched it off. It was a new phone so I wasn't quite sure of what to do myself." 7 She referred to her checking the phone to ensure that it was off by raising it to her ear. 8 In cross-examination her evidence was not in any substantial respect shaken. The magistrate, after hearing from the parties as to the appropriate definition of the term "use", refined the question before him to ascertaining whether it was a use of the phone to turn it off. Examination was made before the magistrate of various dictionary definitions of "use". 9 The magistrate then said after Miss Chresta said: "Your Honour may I have an opportunity to talk?" "HIS HONOUR: I do not know that you are going to need to Ma'am. The bottom line is if I am still quibbling here with these definitions the onus is on the prosecution to prove their case against you beyond a reasonable doubt. What the police saw certainly entitled them to stop you. I do not have any quibble with that. It really comes down to the definition section, which is so broad. But use, I think, reading through all these definitions in the Macquarie Concise Dictionary certainly tends to go to the word "to operate" and "to put into effect". Putting into effect here I do not know that turning it off can be said to put it into effect. There seems to be a positive connotation from the words in all these various definitions and until and unless the Act is made a little bit more specific so far as you are not to handle, you know, a mobile phone while vehicle is in motion or something like that. I just cannot be positive that that is what is contained here so, subject to whatever else you want to say sergeant, I think I am going to have to dismiss it. PROSECUTOR: Yes your Honour. I can't offer anything further to the Court at this stage your Honour. HIS HONOUR: I do not think I can say any more than I already have. The definition is - or the word in the section is so broad that I cannot be satisfied that the actions here which are totally consistent with what the police saw and entitle them to pull her over but we also cannot argue with what she says because they were not in the car and she certainly did deny it at the time. SO THE INFORMATION HAS TO BE DISMISSED. So that is it Ma'am. You are free to go. " 10 The offence is constituted by a breach of the Regulations so far as they adopt the Australian Road Rules and in particular Road Rule 300. 11 Road Rule 300 provides 300(1): "The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a hand-held mobile phone 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." 12 The Australian Road Rules contain a dictionary of definitions. None of them assists with the definition of "use". It is apparent that no exemption under another law of this jurisdiction is here applicable. The relevant rule is contained in Part 18 of the Road Rules headed Miscellaneous Road Rules and in Division 1 headed Miscellaneous Rules For Drivers. Those rules contain rules dealing with the duty of a driver involved in a crash, the duty not to drive on a path or nature strip or traffic island, make unnecessary noise or smoke, securing an insecure or overhanging load, the necessity to remove fallen things from the road, to keep control of a towed vehicle, regulation of towing with a tow line, the necessity to have more control of the vehicle, the requirement to abstain from driving with a person in the trailer, not to have a telephone receiver or device whilst the vehicle is in motion... There are also rules in Division 2 for people in charge of animals. 13 It becomes difficult in that context to say, other than as has the prosecution in a written submission, that there is a general intent behind the rules to achieve safety. This gives little assistance, however, in considering the particular purpose in rule 300. In argument various situations were described with a view to testing how wide the term "use" might be. It was accepted that to use the phone otherwise than as an instrument of communication might well not be within the definition. 14 The distraction, to which the safety requirement said to be behind the rule might apply, would occur in the receiving and making of communications but, of course, that is not the only way hand-held mobile phones may be used. They may be used nowadays, not only as message-sending devices, but also as cameras for the purpose of photography, music playing devices, calendars or calculators, they may have all manner of functions, but they are still popularly described, even when those other functions or uses are being resorted to, as hand-held mobile phones. 15 It was accepted that the simple use of the phone as, eg, a bludgeon to deal with some insect or pest, would not be within Rule 300, although, on one view of it, it might produce a situation equally if not more unsafe than a use to communicate. 16 It was submitted that if one turns to dictionaries one would see various uses of the term "use" such that the DPP contends the mere operation of the mobile phone for the purpose of turning it on or off would be a use of the mobile phone, although the checking of it that it was turned off would perhaps be less likely to be so considered. 17 The word "use" is notoriously wide in its ambit and on occasions varying in its application, however I accept the submission made that its occurrence in Australian Road Rule 300 is to be construed as meaning that the operation of, by hand of a hand-held mobile phone while the vehicle is moving, is to be treated as an offence under the Road Rules and the Regulation. 18 I accept that the purpose of the legislation is, at least, to proscribe the operation of the communication function or the device to give the potential for such function and to proscribe that use of the device as involves the removal of a driver's proper attention from the road and the hand or hands from the safe operation of the vehicle. 19 It is notable that on the web site of the RTA are references to "breaches with a mobile phone in your hand" and the "stopping in a safe place if you need to make a call or retrieve a message". There is also a reference to it being illegal to "drive or operate a vehicle while using a hand-held mobile phone". The site says, "Talking, sending or receiving text messages, playing games or taking phone calls are illegal when using a hand-held phone and these functions appear to be regarded as functions that are included in the use for communication of the phone, i.e. for the reception or non-reception of calls. These latter two functions are initiated by actions required to turn the phone on and off i.e. to make it operational or non-operational. 20 So far as what the RTA might say on their web site about these functions is concerned, of course that is not an aid to construction of the term "use" in the Australian Road Rules. It does, however, illustrate how much wider the word "use" might be more popularly thought to be than simply restricted to the uses of the device to make oral person-to-person communications. But, what is shown on the web site is consistent with the Director's submission, which I hold is correct, that whilst driving, to turn the phone on or off is a use, which is within the section. It is an operation of the phone. It would be even more an operation if communications were to be made or received. 21 It is not necessary for me to have regard to the numerous modern authorities as to the construing of penal statutes since in my view the use of the word "use" here is quite clear. 22 I have, therefore, come to the view that the magistrate erred in law. However, s 59 of the Act provides that I might make any such other order as the Court thinks just in the circumstances. 23 This is an appeal against an acquittal. The magistrate's findings make it perfectly clear that the magistrate did not regard the action of the defendant, who gave evidence of those actions and whose evidence was accepted, as displaying any real degree of culpability such that she should receive any penalty under the provisions of the Act and/or the Regulations. 24 I do not see that there is any interest to be served by remitting the matter to the magistrate or setting aside the acquittal. In my view the appropriate course, which is the course for which the Director has elected, is that I publish these reasons as to why the magistrate's determination of the ambit of the offence was incorrect, confirming that the ambit is sufficiently wide to include the use of the hand held phone by turning it on or off or operating it, including by sending text, telephone or other messages or receiving them through it, or operating from it any of its functions to communicate as might serve to distract the driver from having both hands and full attention engaged upon the task of driving. 25 In these circumstances, I decline to make the order sought in paragraph 1 of the summons. I make an order in terms of paragraph 2 of the summons. I note that the Director does not seek costs. **********--- - 7 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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