Mobile phones

(Extract from Kidd’s Traffic Law – contact David at kiddlrs@optusnet.com.au for free trial. See www.kiddslaw.com for more)

See ARR 300

 

Articles

Swil J, ‘Does Switching Off a Mobile Phone Constitute “Using” the Phone?’ (2005) ALJ 559

 

ARRs (‘use’ of)

In Burns v Police 25/5/07 [2007] SASC 191 Justice Grey had to determine whether the A was rightly convicted of breaching Rule 300 of the ARRs by depressing a green button on the front panel of his mobile phone to answer a call while stationary at traffic lights. A was using ‘Blue tooth hands free’ technology, whereby he could have a conversation with the caller through the speakers of his car only after he had pushed the green button. To find the button, however, A had taken his eyes off the road to look at the front panel of his phone. The evidence also was that he looked at the phone to see who was calling. Submission that Rule 300 could only be breached by a driver holding a mobile phone in the hand rejected as stated that the “term ‘hand-held’ operates as an adjective to qualify the noun phrase ‘mobile phone’, rather than an adverb qualifying the verb ‘use’” [17]. No reason found “to limit ‘use’ so that it does not include depressing a button on the phone to answer an incoming call” [27]. Chresta and Kyriakopoulos followed (see commentary on these cases below).

 

*** Note that as a result of this decision the SA Parliament swiftly passed new regulations overiding its effect so that drivers who had installed hands free technology would not be at risk of prosecution. See Regulation 4 of 66/2007

 

In Savage v Police 18/2/11 [2011] SASC 13 A appealed against his conviction for using his mobile phone contrary to ARR 300. He was only checking the time on his phone. Such behaviour not atypical. A committed the offence intentionally in circumstances where there was no emergency. He had a prior offence of the same nature. Offence not trifling. It was not a serious offence of its kind, but the circumstances were not sufficient to provide good reason not to record a conviction pursuant to Section 16 of the Criminal Law (Sentencing) Act. Nyland J dismissed appeal.

 

In Wighton v Police 6/9/11 [2011] SASC 144 Justice White dismissed an appeal from a magistrate’s decision finding A guilty of using a mobile phone while driving. A’s case was that he was scratching his ear with the stereo remote control. Despite the constable involved conceding as a possibility that A could have been doing this, the magistrate’s advantage in hearing the witnesses swayed Justice White not to allow the appeal.

[Chresta] ”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 [ARR] 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 [ARR]. 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”. DPP v Chresta 14/3/05 [2005] NSWSC 233 James J

See Swil article listed above at sub-heading Articles.

 

In Kyriakopoulos v Police 14/3/06 [2006] SASC 71 White J set aside the penalty levied against A for breaching ARR 300. The appeal against conviction was however dismissed. The issue was whether “the use of a mobile phone by means of an extension cord and earpiece held to the ear constitutes the use of a hand-held mobile telephone for the purpose of r300” [1]. White J said:

“14. The [A’s] evidence included an acknowledgement that he was conducting a conversation using his mobile telephone as he drove along Hanson Road. That conversation was conducted using the earpiece held in his right ear by his right hand. As already noted, that earpiece was attached by a flexible cord to the mobile telephone unit. A microphone was also attached to the cord in such a position so as to be able to transmit the [A’s] own voice. … [T]he mobile telephone unit itself was placed in the console between the driver’s seat and the front passenger seat.

5. … The magistrate found that the [A] was able to have the conversation by holding the earpiece to his ear. That finding was based on the [A’s] admission that the reason he was holding his right hand to his ear was in order to hold the earpiece to the ear.
6. … The [ARRs] do not proscribe altogether the use of a mobile telephone while driving. Mobile telephone which are hands free may be used. When used without use of the hands, no doubt a limited number of the functions commonly available on a mobile telephone are able to be used. Use of the mobile telephone as a camera, or for the sending of text messages, or as a calendar or calculator would probably be impossible. But, at the least, the ARR contemplate that a driver is able to use a hands free mobile telephone to conduct a conversation. What ARR 300 proscribes is the use of a mobile telephone while it is hand-held. This suggests that ARR 300 is concerned not so much with the avoidance of a circumstance of distraction to the driver but with avoidance of a circumstance in which the driver will not have both hands and arms available for control of a vehicle, and perhaps with avoidance of a circumstance in which the vision (in particular the peripheral vision) of the driver may be restricted by the position of the arms in holding a mobile telephone to the ear. It would be consistent with this purpose that r 300 should be understood as proscribing the holding of an earpiece to the driver’s ear where that was necessary to permit use of a mobile telephone. But even so, the language of the rule still has to be capable, on a reasonable construction, of supporting that construction.
7. As it is the use of a mobile telephone which is hand-held while driving which is proscribed, the question on this appeal is whether the earpiece attached by a cord to the mobile telephone unit formed part of the [A’s] mobile telephone. If it did, then given that the [A] was holding the earpiece to his ear in order to conduct the conversation, it would follow that he was using a mobile telephone which was hand-held.
8. As I understand it, the cord was attached to the mobile telephone unit by the insertion of a steel pin attached to the cord into a socket within the mobile telephone unit designed for that purpose. The cord served a two-fold purpose. First, it enabled the transmission of the sound received by the mobile telephone unit to the earpiece at the end of the cord, thereby enabling the [A] to listen to his caller by the holding of the earpiece to his ear. Secondly, the microphone attached to the cord enabled sounds made by the [A] to be transmitted, via the mobile telephone unit, to the caller. The mobile telephone could be used with or without the cord and earpiece. The cord and earpiece were not essential for its use in some circumstances but were essential for use of the mobile telephone when it was not held close to the ear and mouth of the [A]. Conversely, there was no point in the [A] holding the earpiece to his ear unless it was attached to the mobile telephone unit.
9. In my opinion, the magistrate was correct in concluding that the cord, earpiece and microphone formed part of the [A’s] mobile telephone so that the holding of the earpiece, while the [A] conducted a conversation, constituted a holding of the mobile telephone. Each was attached to the other and the mobile telephone unit. Each formed an integral part of the equipment being used by the [A] to conduct the conversation. If hypothetically the earpiece and microphone were attached by a form of rigid rod to the mobile telephone unit, and positioned so as to be adjacent to the ear and mouth by a hand holding either the mobile telephone unit itself or the rod, it would be natural to conclude that the mobile telephone was being hand-held. Clearly it would be so in that circumstance if the hand held the mobile telephone unit itself. I consider that the holding of the rigid rod instead of the mobile telephone unit itself in this hypothetical example would also be a holding of the mobile telephone. In this case the earpiece had to be held to the [A’s] ear because of the lack of rigidity in the cord. I am not able to see any relevant difference between this circumstance and the hypothetical situation involving use of a rigid rod.
10. When the cord and earpiece were attached by the [A] to the mobile telephone unit, they became part of the mobile telephone. This does not involve any expansive view of the language. Ordinarily, when an accessory is attached to an appliance, it is regarded as forming part of the appliance. It is not to the point that when not so attached, the appliance may still be used, but in some other way. When a hand hold is attached to a power drill so as to permit it to be held by both hands during its operation, it is natural to regard the hand hold as part of the drill. It is also natural to speak of persons holding the drill when they are gripping it by means of the (detachable) hand hold only. The earpiece attached by the cord to the mobile telephone unit is analogous to the hand hold attached to a power drill. In this case, as the [A] was holding an accessory attached to the mobile telephone unit he was properly held … to have been holding the mobile telephone. It is not necessary to consider in this case, the use of wireless earpieces.
11. Some support for this conclusion can be drawn from ARR 80 and 101. ARR 80 requires a driver approaching a children’s crossing to stop at the stop line if ‘a hand-held stop sign’ is displayed at the crossing. ARR 101 requires a driver approaching ‘a hand-held stop sign’ to stop before reaching the sign. Each of ARR 80 and 101 contain diagrams of the form of signs to which they refer. Each diagram is comprised of a circle with the word ‘stop’ printed in large letters inside it. None of the diagrams make any provision for any form of a handle to be fixed to the sign. Yet it is common experience for such signs to be used when attached to the end of a pole or, in some circumstances, when suspended by a rope or cord. It is sensible to speak of such signs as being hand-held when the hand is holding a handle attached to the sign rather than the sign itself.
12. In the circumstances of this case, the cord and earpiece formed part of the mobile telephone at the time of its use by the [A]. The [A] was holding the earpiece in place by hand. In those circumstances the [A] was … using a hand-held mobile telephone within the meaning of ARR 300. Accordingly, the appeal against conviction should be dismissed.”

 

General

Employee was driving a truck around a bend and talking on his mobile phone hands free when he lost the crane he was transporting. Found that employee was not distracted by phone call. He was an experienced driver who knew the road and talking on the phone would be equivalent to talking to a passenger. “This is not to say that, in principle, it is acceptable for the drivers of heavy rigs … to have mobile phone conversations whilst they drive … [but] in the circumstances … the call that occurred was not a causal or contributing factor” [21.] Lindores Plant & Equipment P/L v Jacap Low Loaders P/L 23/6/04 [2004] NSWSC 867 McDougall J Appeal dismissed 16/12/04 [2005] NSWCA 5 Full Court

 

Driver “stopped his vehicle about half a car length behind … Volkswagen, and when the lights changed to green he started to move off. He was distracted by his mobile phone, and momentarily took his attention off the road. When he looked up, he saw that the Volkswagen’s brake lights were on. He immediately braked but not quickly enough to avoid an impact with the rear of the Volkswagen” [7]. Liability was admitted. 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. Bowden v Colbey 7/10/05 [2005] SASC 387 Perry J (Full Court)

 

Offences

In Sobieralski v Comissioner of Police 17/4/09 [2009] QCA 90 the A was sentenced for dangerous operation of a vehicle with aggravation, driving an unregistered vehicle with false plates, driving unlicensed, and using a mobile phone while operating a vehicle. 25 months imprisonment.

 

In Draqui v Police 8/4/10 [2010] SASC 94 Justice Nyland dismissed an appeal from a magistrate who rejected A’s submission that his offence should be regarded as ‘trifling’. While reversing his vehicle a very short distance in a car park A had a conversation on his mobile phone. There were no exigent circumstances requiring A to answer his phone.

 

See R v Hopper; Ex Parte AttorneyGeneral (Qld) 16/5/14 [2014] QCA 108 where the full suspension of R’s two and a half year sentence for causing death and grievous bodily harm was overturned. R was 17 and on a provisional licence when she committed this driving offence due to checking a map on her mobile phone whilst driving. R caught doing a similar thing months after the accident. Personal and general deterrence should have been given more importance. Appeal allowed. R to serve five months in prison.

 

Texting while driving

See WW at NSW Crimes Act s52A(1)(c)