FAUSKA v Jones

[2008] WASC 173

FAUSKA -v- JONES [2008] WASC 173

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 173
Case No:	SJA:1042/2008	Heard:	5 AUGUST 2008
Coram:	McKECHNIE J	Delivered:	5/08/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for leave to appeal refused
Category:	B
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Parties:	CRICKET SUE BEAR FAUSKA ROSS GORDON JONES
Catchwords:	Road Traffic Code 2000 (WA) Driving while using a hand-held mobile phone No new principles
Legislation:	Road Traffic Code 2000 (WA), reg 265
Case References:	Kyriakopoulos v Police [2006] SASC 71; (2006) 46 MVR 343

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FAUSKA -v- JONES [2008] WASC 173 CORAM : McKECHNIE J HEARD : 5 AUGUST 2008 DELIVERED : 5 AUGUST 2008 FILE NO/S : SJA 1042 of 2008 BETWEEN : CRICKET SUE BEAR FAUSKA

Appellant

AND

ROSS GORDON JONES
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B C GLUESTEIN

File No : RO 8530 of 2007

Catchwords:

Road Traffic Code 2000 (WA) - Driving while using a hand-held mobile phone - No new principles

Legislation:

Road Traffic Code 2000 (WA), reg 265

(Page 2)

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : No appearance

Case(s) referred to in judgment(s):

Kyriakopoulos v Police [2006] SASC 71; (2006) 46 MVR 343


(Page 3)

1 McKECHNIE J: This is an application for leave to appeal against a decision from the Magistrates Court convicting the appellant on a breach of the Road Traffic Code 2000 (WA). Under the Criminal Appeals Act 2004 (WA) I can only grant leave if there are reasonable prospects of success.

2 The facts are that on 7 September 2007, the appellant was driving her car on Kwinana Freeway, Mandogalup. At the time, she was holding a mobile phone in her right hand against the steering wheel while speaking on a speaker phone. She was stopped and spoken to and admitted using her phone. The Road Traffic Code s 265(1) provides:

A driver shall not drive a motor vehicle and use a hand-held mobile phone while the vehicle is moving or is stationary but not parked.

3 When the matter came before the Magistrate, the appellant admitted the facts and argued as a matter of law that there was no breach of the Code because she was not using a hand-held mobile phone. The appellant supports her application by what are entitled Grounds of Appeal but are really submissions on the matter, but the essence seems to be that the Road Traffic Code does not define using hand-held mobile phones and the Magistrate was wrong.

4 The appellant is an appellant in person but has argued her point very well this morning in relation to why leave should be granted. The Magistrate gave written reasons and relied on the South Australian Supreme Court decision of Kyriakopoulos v Police [2006] SASC 71; (2006) 46 MVR 343. In that case, which was a little different, the defendant held an earpiece up to her ear while driving. The Supreme Court in South Australia held there was a breach of the Road Traffic Code. The Road Traffic Code is in common form throughout the country. The Magistrate was obliged to follow this decision. In any event, the Magistrate was plainly right. The phone was being used by the appellant at the time. She was holding it in her hand and was speaking, albeit by speaker phone.

5 The appellant has drawn my attention to references in Hansard, which I had looked at before this morning. Those are interesting but it is unnecessary to go to secondary material because in my opinion the plain meaning of the Road Traffic Code covers this situation. It may be that in certain different cases there will be an ambiguity which is necessary to be decided by a Court but in this case, having regard to the facts the conviction is plainly correct.

(Page 4)

6 There are no reasonable prospects of success, and leave is therefore refused.