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…

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.

Continue reading Burns v Police

Details

AGLC: Burns v Police [2007] SASC 191
Case: [2007] SASC 191
Decision Date: 25 May 2007

CaseChat Overview and Summary

In the matter of Burns v Police, the appellant, Mark Patrick Burns, appealed against his conviction for using a hand-held mobile phone while driving, in contravention of Rule 300 of the Australian Road Rules. The conviction arose from an incident where the appellant answered a call on his mobile phone while his vehicle was stationary at a red traffic light and subsequently spoke on the phone using hands-free Bluetooth technology without holding the phone while driving. The legal issues in the appeal centred around the interpretation of the phrase "hand-held mobile phone" under Rule 300 of the Australian Road Rules, specifically whether depressing a button on the phone to answer it and then speaking via hands-free Bluetooth technology constituted a breach of the rule. Additionally, it was questioned whether the mobile phone must be held in the hand to be classified as a "hand-held mobile phone" under Rule 300.

The court found that the phrase "hand-held" in Rule 300 operates as an adjectival phrase qualifying "mobile phone", rather than an adverbial phrase qualifying "use". This interpretation meant that it was not necessary for the appellant to be holding the mobile phone in his hand at the time of use for a conviction under Rule 300. This decision was made in accordance with the purpose behind Rule 300, which is to ensure the safety of motorists and pedestrians is not adversely affected by the use of hand-held mobile phones. The court dismissed the appeal, holding that the appellant's actions constituted a breach of Rule 300, as the thumb is considered part of the hand, and the appellant had not had both hands available for control of the vehicle. This interpretation aligns with the broader legislative intent to prevent any use of a mobile phone in a manner that could distract the driver or otherwise compromise vehicle control.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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