Burns v Police - [2007] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BURNS v POLICE
[2007] SASC 191
Judgment of The Honourable Justice Gray
25 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal against conviction - appellant answered incoming call on mobile phone whilst stationary in a vehicle at a red traffic light and then spoke on the phone via hands free Blue Tooth technology without holding the phone whilst driving - appellant convicted of using a hand-held mobile phone whilst driving a vehicle under Rule 300 of the Australian Road Rules - whether depressing a button on the phone to answer it and then speaking via hands free Blue Tooth technology constitutes a breach of Rule 300 of the Australian Road Rules - whether the mobile phone must be held in the hand in order to be classified as a "hand-held mobile phone" under Rule 300 of the Australian Road Rules - Held: appeal dismissed - in Rule 300 "hand-held" operates as an adjectival phrase qualifying "mobile phone", rather than an adverbial phrase qualifying "use", and so it is not necessary for someone to be holding the mobile phone in their hand at the time that they use it in order to be convicted under Rule 300 - this interpretation accords with the purpose behind Rule 300 of ensuring that the safety of motorists and pedestrians is not adversely affected by motorists using hand-held mobile phones.
Magistrates Court Act 1991 (SA) s 42(1); Australian Road Rules r 300; Criminal Law (Sentencing) Act 1988 (SA) s 15(1)(a); Acts Interpretation Act 1915 (SA) s 21, s 22; Copyright Act 1912 (Vic), referred to.
Kyriakopoulos v Police [2006] SASC 71; DPP v Chresta [2005] NSWSC 233; Stevenson v Reliance Petroleum Ltd; Reliance Petroleum Ltd v Canadian General Insurance Co [1956] 5 DLR (2d) 673; Chappell and Co Ltd v Assoc Radio Co of Australia Ltd [1925] VLR 350, considered.

BURNS v POLICE
[2007] SASC 191
Magistrates Appeal
GRAY J

This is an appeal against conviction. The appeal is brought pursuant to section 42(1) of the Magistrates Court Act 1991 (SA).
Background
On 6 March 2006, the appellant, Mark Patrick Burns, was stopped by a police officer while driving on Richmond Road in Marleston. The appellant was issued with an expiation notice alleging a breach of Rule 300 of the Australian Road Rules. Rule 300 provides:
(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.
Offence provision.
Note –
Emergency vehicle, park and police vehicle are defined in the dictionary.
(2)In this rule:
mobile phone does not include a CB radio or any other two-way radio.
The appellant elected to be prosecuted and the matter proceeded to trial. The reporting officer and the appellant both gave evidence.
The officer recounted that he was riding his motorcycle alongside the appellant’s vehicle and observed the appellant holding a black mobile phone in his hand with his thumb on the keypad.
The appellant’s account was that he was stationary at a red traffic light when his wife telephoned. He said the phone was wedged in the centre console of his car and he used his thumb to depress the green button on the front panel to the mobile phone in order to answer the call. He did not pick up the phone, but he did have to look at it to see who was calling and to press the button. He explained that the mobile phone’s “Blue Tooth” technology allowed him to conduct a telephone conversation through the car’s loudspeakers. He answered the call whilst stationary at a red traffic light, and then spoke to his wife whilst driving when the traffic light turned green. Other than the contact between his thumb and the button there was no evidence of any other contact between the appellant’s body and the mobile phone.
The Magistrate’s Decision
The Magistrate was not satisfied that the police officer’s version of what occurred had been proved beyond reasonable doubt. The Magistrate accepted the appellant’s version of events.
The Magistrate concluded that, on the appellant’s account, the offence had been committed:
It saddens me to say that on the authorities that I have been referred to, I have to find that [the appellant] has committed the offence.
[Counsel for the appellant] has referred me to paragraph 17 of the decision in DPP v Chresta and seeks to say that there must be some use by the hand “of a hand-held mobile phone”. My view is that a thumb is part of a hand and in that regard that submission fails. Added to that, in paragraph 24 of the same decision, his Honour James J stated that “the ambit (of the legislation) is sufficiently wide to include the use of the hand held phone by turning it on or off or operating it”. In my view that is exactly what the [appellant] was doing in this case.
Added to that, the decision in Kyriakopoulos v Police, the decision of the Supreme Court of Justice White at paragraph 16 states that:
“APR 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-”
On the [appellant’s] evidence, he did not have both hands available for control of a vehicle and therefore I find this charge proven beyond reasonable doubt on the facts given by the [appellant].
The Magistrate utilised section 15(1)(a) of the Criminal Law (Sentencing) Act 1988 (SA), and without recording a conviction, dismissed the charge. He imposed no penalty. The appellant was ordered to pay a levy and costs of $150.
Issues on Appeal
Counsel for the appellant submitted that, as the appellant was not holding the mobile phone in his hand aside from pressing the green button with his thumb to activate the call, he was not using a “hand-held mobile phone”.
Counsel referred to Kyriakopoulos.[1] There, the defendant was found to have been holding an earpiece, which contained a speaker and microphone, to his ear in order to talk on his mobile phone. The Court held that this conduct constituted a breach of Rule 300:[2]
The ARR 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.
[1] Kyriakopoulos v Police [2006] SASC 71.
[2] Kyriakopoulos v Police [2006] SASC 71 at [16].
Kyriakopoulos was a case where the defendant had used his hand to operate the mobile phone, by holding the earpiece, and so did not have both hands available for driving. Whilst preventing this type of conduct is certainly a relevant purpose behind the enactment of Rule 300, in my view it is not the only purpose.
The overriding purpose of Rule 300 is to prevent drivers from causing a danger to themselves and to other motorists and pedestrians as a result of using a mobile phone. A driver can be distracted by a mobile phone in a number of ways. Use of a mobile phone can result in a driver diverting attention from the task of driving by looking at the mobile phone instead of the road ahead, and can also result in one or both of a driver’s hands being unavailable for driving. Preventing distraction of the eye is an important purpose of Rule 300.
This approach finds support from observations in DPP v Chresta,[3] where James J observed in relation to Rule 300:[4]
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.
[3] DPP v Chresta [2005] NSWSC 233.
[4] DPP v Chresta [2005] NSWSC 233 at [18].
In the present case there was no positioning of the mobile telephone to the ear. The only contact between the appellant’s body and the mobile telephone was between his thumb and a single button on the phone so as to enable the incoming phone call to be received. A Blue Tooth system had been installed to allow “hands free” conversation. The appellant did concede that he had to divert his attention, by looking at the phone, in order to see who was calling and answer the phone. During cross-examination at trial the following exchange took place:
QIs it possible that on this occasion you took the phone in your hand to answer the call.
A     No, there’s no need to hold it. All I’ve got to do is push a button.
Q     Presumably you look down at the phone to do that.
A     Yes.
Q     Because it would be next to impossible to find that –
A     Plus you want to see who’s calling.
Q     So you would have to concentrate almost momentarily on the phone.
AYes, you take a glance down to see who’s calling, but I was at a red traffic light as well.
QSo at that time your eyes are taken from the road to your phone.
ACorrect.
QWhich hand do you –
ALeft one.
QSo at that point your eyes aren’t on the road and you’ve only got one hand to drive the vehicle, even if it is momentary.
AYes.
As earlier observed, the Magistrate accepted the appellant’s version of events.
Counsel for the appellant submitted that the Magistrate erred in finding the appellant guilty. It was contended that a breach of Rule 300 can only occur where, at the time of the commission of the alleged offence, the mobile phone was held in the hand.
As the interpretation of Rule 300 is reasonably open to more than one construction, section 22(1) of the Acts Interpretation Act 1915 (SA) has application:
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
The phrase “hand-held mobile phone” in Rule 300 should be read in its entirety. The term “hand-held” operates as an adjective to qualify the noun phrase “mobile phone”, rather than an adverb qualifying the verb “use”. The Macquarie Dictionary defines the adjective “hand-held” as:
1. held in the hand; supported only by the unaided hand;
2.of or relating to a device which is designed to be small enough to be held in the hand: a hand-held computer.
A “hand-held mobile phone” is a mobile phone which is designed to be small enough to be held in the hand. If, at any particular time, it is not held in the hand, it does not lose its character as a “hand-held mobile phone” – in the same way that a pocket calculator is still a pocket calculator even when it is not placed in a pocket.
This interpretation gives effect to the intention of Parliament in enacting Rule 300. As earlier observed, an evident purpose of the Rule was to prevent motorists becoming distracted by mobile phones whilst driving.
On the appellant’s evidence at trial, the appellant diverted his attention from the road by looking at the mobile phone in order to see who was calling and to answer it. That the appellant did this whilst stationary at a red light does not assist him – Rule 300 applies to drivers “while the vehicle is moving or is stationary but not parked” [emphasis added]. It is clear that a car at a red light is stationary but is not parked.
The final issue to consider is the meaning of the word “use” in Rule 300. In Stevenson v Reliance Petroleum Ltd[5] the Supreme Court of Canada considered the meaning of the words “use” and “operation”. The issue was whether the liability of an employer for the negligence of its employee arose out of the “use” of a tank truck, and so fell within the policy of insurance that the employer held, which provided:[6]
The Insurer agrees to indemnify the Insured against the liability imposed by law upon the Insured for loss or damage arising from the ownership, use or operation of the automobile.
[5] Stevenson v Reliance Petroleum Ltd; Reliance Petroleum Ltd v Canadian General Insurance Co [1956] 5 DLR (2d) 673.
[6] Stevenson v Reliance Petroleum Ltd; Reliance Petroleum Ltd v Canadian General Insurance Co [1956] 5 DLR (2d) 673 at 674.
Rand J observed:[7]
An analogous “use”, as distinguished from “operation”, is exemplified in the case of a bus. The undertaking in such a case includes the entrance and exit to and from the bus of passengers. If the steps are defective and a passenger is injured, could it be said that injury did not arise out of the “use”? The expression “use or operation” would or should, in my opinion, convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service. It may be said that in these instances “use” and “operation” are equivalents: but the statute uses both words and meaning can be given to each in this manner where the “use” is that in fact of the automobile.
[7] Stevenson v Reliance Petroleum Ltd; Reliance Petroleum Ltd v Canadian General Insurance Co [1956] 5 DLR (2d) 673 at 676-677.
There are many ordinary and well-known ways in which one may “use” a “hand-held mobile phone”. These include saving a phone number in the phone’s electronic address book, retrieving a phone number from the phone’s electronic address book, dialling a phone number, talking on the phone, answering an incoming phone call, writing and sending an SMS (Short Message Service), reading a received SMS, writing and sending an e-mail, reading a received e-mail, playing a video game, listening to music, reading news articles from the internet or subscription based services, browsing the internet and downloading content (e.g. videos, music, games), taking a photo and browsing the user’s photo library, and recording a video and browsing the user’s video library.
It is possible that a number of these activities were not envisaged by the legislature at the time that it enacted the Australian Road Rules, but this does not mean that “use” should not encompass these broader activities - what is important is the fact that the offence that the legislature enacted proscribes the “use” of a hand-held mobile phone.
As the number of uses of mobile phones has expanded over the years, so has the number of activities that Rule 300 prohibits. This approach is supported by section 21 of the Acts Interpretation Act 1915 (SA), which provides:
Every Act will be considered as speaking at all times, and every enactment, whether expressed in the present or the future tense, will be applied to the circumstances as they arise, so that effect may be given to each Act and every provision according to its spirit, true intent and meaning.
The maxim that legislation is deemed to be always speaking is well established, particularly where technological changes lead to circumstances that could not have been envisaged when the legislation was enacted. In Chappell and Co Ltd v Assoc Radio Co of Australia Ltd,[8] public radio broadcasts were held to breach the Copyright Act 1912 (Vic) despite the suggestion that radio broadcasts could not have been contemplated at the time that the Act was passed. The Court observed:[9]
[I]t was suggested that at the time of the passing of the Copyright Act 1912 acoustic representations by means of broadcasting were unknown, and could not have been contemplated. The correctness of the suggestion may be doubted. … But, apart from this, it was not disputed that if things not known at the time of the coming into operation of an Act fall on a fair construction within its words, they should be held to be included. The things such as motor cars, now held to be included in the word “vehicle,” afford a good illustration. And so here the general expressions such as “does anything,” “performance,” “acoustic representation,” are sufficiently wide in their natural meaning to apply to the present case.
[8] Chappell and Co Ltd v Assoc Radio Co of Australia Ltd [1925] VLR 350.
[9] Chappell and Co Ltd v Assoc Radio Co of Australia Ltd [1925] VLR 350 at 361.
Rule 300 is sufficiently wide in its natural meaning to apply to the present case. Moreover, there is no reason to interpret Rule 300 in any other way. This interpretation accords with the purpose behind Rule 300 of ensuring that the safety of motorists and pedestrians is not adversely affected by motorists using hand-held mobile phones. The appellant diverted his attention from the task of driving in order to answer the incoming call and then speak on the phone. It is clear that the legislature intended to prohibit any ordinary use of a hand-held mobile phone. This does not mean that the mobile phone must be held in the hand at the time of use, because as observed above, the phrase “hand-held” is operating as an adjectival phrase rather than an adverbial phrase – qualifying “mobile phone” rather than “use”. But there is no reason to limit “use” so that it does not include depressing a button on the phone to answer an incoming call.
Conclusion
The Magistrate did not err in finding the appellant guilty of the offence. The facts as admitted by the appellant were sufficient to constitute a breach of Rule 300 of the Australian Road Rules.
The appeal is dismissed.