Apostolakos v Police - [2017] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
APOSTOLAKOS v POLICE
[2017] SASC 90
Judgment of The Honourable Justice Stanley
15 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - USE OF MOBILE PHONES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal against sentence imposed by a magistrate to refuse to reduce demerit points under section 98B(4) of the Motor Vehicles Act for an offence against Australian Road Rule 300, using a mobile phone while the vehicle is stationary but not parked.
The appellant pleaded guilty and gave evidence on oath in the Magistrates Court. He was driving a vehicle when he stopped at a red light at the intersection of Peacock Road and South Terrace. The appellant removed his mobile phone from his pocket for the purpose of checking whether the Bluetooth function on his phone was working. This took approximately 10 seconds. The magistrate found that the appellant used both hands, at least momentarily, for this purpose. He returned the phone to his pocket before the traffic lights turned green.
The appellant argues that the magistrate was plainly wrong in failing to find that proper cause existed to reduce the number of demerit points incurred.
The respondent submits that this appellate Court cannot interfere unless the discretionary decision of the magistrate was infected with a House v The King error.
Held, per Stanley J:
1. The argument that the Magistrate was plainly wrong in concluding that other proper cause did not exist to warrant a reduction in demerit points is not persuasive (at [22]).
2. The appeal is sufficiently arguable such that the extension of time within which to institute the appeal is allowed (at [23]).
3. I would dismiss the appeal. (at [23]).
Australian Road Rules (SA) r 300; Motor Vehicles Act 1959 (SA) s 98B(4), referred to.
House v The King (1936) 55 CLR 499; Police v Chilton [2014] SASCFC 76, applied.
Chan v Police [2014] SASC 35, distinguished.
Gilbert v Owen (1991) 14 MVR 235; Siviour-Ashman v Police (2003) 85 SASR 23; Savage v Police [2011] SASC 13, discussed.
Police v Ludlow [2008] SASC 43; Brookes v Police [2014] SASC 22; Newton v Larcombe (1989) 38 A Crim R 254; Miles v Police [2012] SASC 69, considered.

APOSTOLAKOS v POLICE
[2017] SASC 90
Magistrates Appeal: Criminal
STANLEY J.
Introduction

This is an appeal against sentence.
The appellant pleaded guilty in the Magistrates Court to the offence of using a mobile phone while the motor vehicle he was driving was stationary but not parked, contrary to r 300 of the Australian Road Rules (SA). After entering his plea, the appellant applied for a reduction in the number of demerit points incurred in respect of that offence, pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) (the Motor Vehicles Act). The appellant gave evidence…

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.

Keep reading for free

Create a free CaseChat account to read Apostolakos v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] SASC 90
Decision Date: 15 June 2017

CaseChat Overview and Summary

In the case of Apostolakos v Police, the appellant was appealing against a decision by a Magistrate to refuse a request to reduce demerit points incurred for using a mobile phone while driving. The appellant argued that his use of the phone to check the Bluetooth functionality while stationary at traffic lights was an atypical offence and thus warranted a reduction in demerit points. The respondent opposed an extension of time to appeal, arguing that the ground of appeal was unmeritorious, but did not oppose an extension of time if the Court was to find a proper basis to allow the appeal. The Court needed to determine whether the Magistrate was plainly wrong in concluding that proper cause did not exist to warrant a reduction in demerit points.

The Court found that while the appellant's use of the mobile phone did not fall within the paradigm uses of a mobile phone prohibited by Rule 300, this did not necessarily mean that it was an atypical offence that provided proper cause to reduce demerit points. The Court noted that the offending was deliberate and not the product of an emergency or some urgency. The appellant could have waited until he had parked his vehicle to check its Bluetooth functionality. The Court also referred to a previous case where an appeal from a decision of a magistrate to reject an application for a reduction in demerit points was dismissed, where the appellant had picked up his mobile phone to check the time while driving. The Court held that the offence created by Rule 300 was directed at the distraction created by the use of a phone and the consequent danger to road users or pedestrians from a distracted driver.

The Court concluded that the Magistrate was not plainly wrong in concluding that proper cause did not exist to warrant a reduction in demerit points. The Court was not persuaded that the Magistrate's decision was so unreasonable that it could be described as plainly wrong. The Court would not allow the appeal, but considered it sufficiently arguable that it would grant an extension of time within which to institute the appeal. The Court would hear the parties as to the costs of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STANLEY J

I am not persuaded that the Magistrate was plainly wrong in concluding that other proper cause did not exist to warrant a reduction in demerit points.Conclusion In the circumstances, while I would not allow the appeal, I consider it sufficiently arguable that I would grant an extension of time within which to institute the appeal. However, I would dismiss the appeal. I would hear the parties as to the costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

The appellant’s notice of appeal was filed 18 days out of time. The respondent opposes an extension of time on the basis that the ground of appeal is unmeritorious and, accordingly, an extension of time should be refused. On the other hand, the respondent does not oppose an extension of time if the Court was to find a proper basis to allow the appeal.Consideration The appellant seeks to invoke the reasoning of Blue J in Chan v Police[14] that the paradigm uses of a mobile phone prohibited by r 300 include making a phone call, listening to a message and sending or receiving a text. While the definition of “use” in r 300 also includes operating a function on the phone, such as looking at the time displayed, doing so does not necessarily represent the normal or typical example of the offence. The appellant submits that his momentary use of the mobile phone to identify whether the Bluetooth function was operating while the vehicle he was driving was stationary at traffic lights is an atypical offence. He submits that r 300 is concerned with road safety, and that his use of the phone in these circumstances does not fall within the conduct identified in Chan as the paradigm uses of a mobile phone prohibited by r 300. In these circumstances, he submits that the Magistrate was plainly wrong in not concluding that proper cause existed to reduce demerit points in these circumstances. [14] [2014] SASC 35 at [34]. I do not agree. I am not satisfied that, in these circumstances, it was not open to the Magistrate to conclude that proper cause did not exist to reduce the demerit points incurred for this offending. Accepting the observation of Blue J that this particular use of the mobile phone by the appellant does not fall within the paradigm uses of a mobile phone prohibited by r 300, does not lead inevitably to the conclusion that this is the sort of atypical case that provides proper cause to reduce demerit points. The offending was deliberate. It was not the product of an emergency or some urgency. The appellant could have waited until he had parked his vehicle to check its Bluetooth functionality.[15] In Savage v Police,[16] Nyland J dismissed an appeal from a decision of a magistrate to reject an application for a reduction in demerit points on the basis, inter alia, that proper cause existed to do so in circumstances where the offending consisted of the appellant picking up his mobile phone to check the time while he was driving. That process took approximately two seconds. Nyland J said:[17]The Magistrate appears to have accepted that the offence was at the lower end of the scale of seriousness, as reflected by the fine which he imposed. That factor alone, however, is insufficient justification for the exercise of discretion to reduce the demerit points. In my opinion, this cannot be regarded as an atypical example of the offence. The offence created by Rule 300 is directed at the distraction that is created by use of a phone and the consequent danger to road users or pedestrians from a distracted driver. In modern times mobile phones have a multitude of functions, all of which have the potential for distraction and that is not limited to simply making a call or texting.[15] See Miles v Police [2012] SASC 69 at [27].[16] [2011] SASC 13.[17] [2011] SASC 13 at [16].