Kyriakopoulos v Police - [2006] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KYRIAKOPOULOS v POLICE
Judgment of The Honourable Justice White
14 March 2006
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OTHER OFFENCES
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction and sentence - appellant convicted and fined for driving a motor vehicle on a road while using a hand-held mobile telephone, contrary to r 300 of the Australian Road Rules - whether the use of a mobile telephone by means of an extension cord and earpiece held to the ear constitutes use of a "hand-held" mobile telephone for the purpose of r 300 - whether fine and conviction imposed was excessive - where appellant self-represented and not advised about s 16 of the Criminal Law (Sentencing) Act 1988.
Held: the cord and earpiece formed part of the mobile telephone at the time of its use by the appellant - the appellant was holding the ear piece in place by hand and therefore, the appellant was using a hand-held mobile telephone within the meaning of r 300 of Australian Road Rules - fine imposed was not excessive - appropriate for penalty to be imposed without the recording of a conviction - appeal against conviction dismissed - appeal against sentence allowed so as to set aside the recording of a conviction only.
Australian Road Rules r 80, r 101, r 300; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Reguations 1999 reg 50; Criminal Law (Sentencing) Act 1988 (SA), s 16, referred to.
DPP v Chresta [2005] NSWSC 233; Mead v Whisson [2006] SASC 69; Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481; Hayes v Kenning (Unreported, Supreme Court of South Australia, Duggan J, 17 September 1992); Sims v Police [2000] SASC 102; Cuthbert v Police [2003] SASC 55; (2003) 225 LSJS 472; McQuade v Police [1999] SASC 277, considered.

KYRIAKOPOULOS v POLICE
[2006] SASC 71
Magistrates Appeal

WHITE J: The issue on this appeal is whether the use of a mobile telephone 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 r 300 of the Australian Road Rules (“ARR”).
The appellant was found guilty of the offence of driving a motor vehicle on a road while using a hand-held mobile telephone, contrary to R 300. The magistrate imposed a fine of $182 in addition to court fees and costs.
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 rule of this jurisdiction.
(2)In this rule: mobile phone does not include a CB radio or any other two-way radio.
Background Circumstances
The appellant was charged with driving a vehicle on Hanson…

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.

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Details

Case: [2006] SASC 71
Decision Date: 14 March 2006

CaseChat Overview and Summary

The appeal before the Supreme Court of South Australia involved Constantinos Kyriakopoulos, who was convicted by a magistrate for using a hand-held mobile telephone while driving, in breach of Rule 300 of the Australian Road Rules. The appellant contested the conviction and sentence on two grounds: the interpretation of the term "hand-held" mobile telephone and the appropriateness of the fine and conviction. The appellant had been using a mobile telephone connected by an extension cord to an earpiece held to his ear while driving, and he argued this did not constitute a "hand-held" mobile telephone as defined by the rule.

The court needed to determine whether the use of a mobile telephone connected by an extension cord and earpiece could be considered "hand-held" under Rule 300 and whether the penalty imposed was appropriate. The court found that the earpiece, cord, and microphone were integral components of the mobile telephone at the time of use, and since the earpiece was held by hand, the appellant was indeed using a hand-held mobile telephone. The court also concluded that the fine was not excessive, but it was appropriate for the penalty to be imposed without the recording of a conviction due to the appellant's self-representation and lack of awareness of section 16 of the Criminal Law (Sentencing) Act 1988.

The court dismissed the appeal against the conviction but allowed the appeal against the sentence, setting aside the recording of the conviction. This decision effectively means that while the appellant remains liable to the fine, the conviction will not be recorded on his criminal record. This nuanced approach balances the need for road safety with considerations of procedural fairness and the appellant’s lack of legal representation.

Orders

Orders of the court

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Background

Background to the litigation

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 rule of this jurisdiction.(2)In this rule: mobile phone does not include a CB radio or any other two-way radio.Background Circumstances The appellant was charged with driving a vehicle on Hanson Road, Athol Park on 28 March 2005 while using a hand-held mobile telephone. The police officer who stopped the appellant believed that she had seen him holding a mobile telephone to his ear as he drove along Hanson Road. At the trial, the appellant denied that he had been holding a mobile telephone to his ear. He said that what he had been holding to his ear was an earpiece which, together with a microphone, was attached by a flexible cord to the mobile telephone. The magistrate summarised the appellant’s evidence as follows:The defendant says that what in fact happened on this occasion is that he did have a mobile phone with him. That the mobile phone rang. That when the phone rang, he stopped his vehicle. He inserted an attachment to the mobile phone unit and he put the earpiece in his ear. That there is a microphone on the cord running from the earpiece to the mobile phone unit and that he did in fact have a phone conversation using his mobile phone. He says that the conversation lasted for some time … What is significant is that he acknowledges that he saw the police vehicle going in the opposite direction. At that time he had the earpiece in his ear. He had his right hand to his ear holding the earpiece in place. Apart from r 300(2) the ARR do not contain any definition of “mobile phone”. Nor do the ARR contain any definition of the expression “hand-held” or of the word “use”[1]. The Macquarie Dictionary defines “mobile phone” as a portable cellular telephone.[1] One meaning of the word “use” in the context of ARR 300 was discussed in DPP v Chresta [2005] NSWSC 233, but the issue in that case was quite different from the present.The Magistrate’s Decision In his reasons, the magistrate referred to four items of componentry: the mobile telephone unit, the extension cord, the earpiece and the microphone. The magistrate used the expression “mobile phone unit” to refer to the unit to which the extension cord was attached and which was capable, independently of use of the extension cord, to be used as a mobile telephone. The magistrate was not satisfied beyond reasonable doubt that the police officer’s evidence established that the appellant had been holding his mobile telephone unit to his ear as he drove along Hanson Road. He accepted that it was reasonably possible that the police officer was mistaken in that respect. The magistrate considered, however, that the appellant’s own evidence provided evidence that the offence with which he had been charged had been committed. The magistrate considered that the earpiece being held to the appellant’s ear was part of the mobile telephone so that it could be said that the appellant was using a hand-held mobile telephone. The magistrate said:Pragmatically [the] earpiece, the cord and the microphone must be part of the mobile phone at the time when the defendant was using the mobile phone. To my mind it does not make sense to say that it is not part of the mobile phone when the evidence reveals that the use of the attachment or accessory, the earpiece and the microphone, was necessary to enable the mobile telephone to be used. … I find that the mobile phone was “hand-held” because the earpiece was hand-held and the earpiece must be regarded as part of the mobile phone in this context.The Complaint and the Particulars

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Apart from r 300(2) the ARR do not contain any definition of “mobile phone”. Nor do the ARR contain any definition of the expression “hand-held” or of the word “use”[1]. The Macquarie Dictionary defines “mobile phone” as a portable cellular telephone.[1] One meaning of the word “use” in the context of ARR 300 was discussed in DPP v Chresta [2005] NSWSC 233, but the issue in that case was quite different from the present.The Magistrate’s Decision In his reasons, the magistrate referred to four items of componentry: the mobile telephone unit, the extension cord, the earpiece and the microphone. The magistrate used the expression “mobile phone unit” to refer to the unit to which the extension cord was attached and which was capable, independently of use of the extension cord, to be used as a mobile telephone. The magistrate was not satisfied beyond reasonable doubt that the police officer’s evidence established that the appellant had been holding his mobile telephone unit to his ear as he drove along Hanson Road. He accepted that it was reasonably possible that the police officer was mistaken in that respect. The magistrate considered, however, that the appellant’s own evidence provided evidence that the offence with which he had been charged had been committed. The magistrate considered that the earpiece being held to the appellant’s ear was part of the mobile telephone so that it could be said that the appellant was using a hand-held mobile telephone. The magistrate said:Pragmatically [the] earpiece, the cord and the microphone must be part of the mobile phone at the time when the defendant was using the mobile phone. To my mind it does not make sense to say that it is not part of the mobile phone when the evidence reveals that the use of the attachment or accessory, the earpiece and the microphone, was necessary to enable the mobile telephone to be used. … I find that the mobile phone was “hand-held” because the earpiece was hand-held and the earpiece must be regarded as part of the mobile phone in this context.The Complaint and the Particulars The appellant’s first submission was that the finding by the magistrate that he was not satisfied beyond reasonable doubt that the mobile telephone unit itself was being held to his ear meant that the charge should have been dismissed. The complaint charged the appellant in the following terms:On the 28th day of March 2005 at Athol Park in the said State being the driver of a vehicle moving on road namely Hanson Road, you [Constantinos Kyriakopoulos] used a hand-held mobile phone. Rule 300 of the Australian Road Rules. This is a summary offence.The complaint did not contain any particulars as to the way in which the mobile telephone was alleged to have been used. It seems that the appellant may have been told in pre-trial discussions that the prosecution case was that he had been using the mobile telephone whilst the mobile telephone unit itself was held to his right ear. The appellant’s submission was that he should not have been found guilty of the offence by use of his mobile telephone in some other way. In short, the submission was that the prosecution should not have been permitted to depart from the particulars which had been provided informally.

Ratio Decidendi

Legal Principle Established

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