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 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
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 28^th 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.
A similar point arose in Mead v Whisson.[2] In that decision I referred to two authorities concerning the proper approach when the prosecution case, as ultimately presented, constitutes a departure from the particulars previously provided. It is convenient to repeat those citations. In Environmental Protection Authority v Sydney Water Corporation Ltd[3], Gleeson CJ emphasized the distinction between proof of the elements of the offence on the one hand and proof of the particulars alleged to comprise those elements. It is the former which must be established, and not the latter. Gleeson CJ said:
In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged.
It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons.
There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case is being conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment or the summons. Failure to establish a particular is not fatal. [Citation of authorities omitted][4]
[2] [2006] SASC 69.
[3] (1997) 98 A Crim R 481 at 484.
[4] Ibid at 484.
I also referred to the decision of Duggan J in Hayes v Kenning[5]. Duggan J referred to the importance of particulars in defining the issues and contributing to the fairness of the trial. Duggan J then said:
However, particulars of the type supplied by the prosecution in this matter cannot be elevated to the status of elements of the offence. To say that the prosecution is to be held to the case disclosed by its particulars is not to say that in every case where there is a discrepancy between the particulars and the evidence there must be an acquittal. If a material averment in the complaint itself has not been proved then the prosecution must fail. But where particulars which are supplied in addition to the facts contained in the statement of the charge are at variance with the facts relied on by the prosecution at trial and there is a conviction on that evidence, an appellate court will be required to determine whether there was any unfairness to the person convicted giving rise to the possibility of a miscarriage of justice[6].
[5] (Unreported, Supreme Court of South Australia, Duggan J, 17 September 1992).
[6] Ibid.
For the purpose of dealing with this aspect of the appeal, I will assume, in favour of the appellant, that pre-trial particulars were provided and that they were to the effect that the prosecution case would be that he was using his mobile telephone by holding the mobile telephone unit itself to his right ear as he drove along Hanson Road. On those assumptions, the question is whether it was unjust for the magistrate to find the appellant guilty on the basis of use of his mobile telephone by some other means.
The appellant did not point to any relevant prejudice or unfairness. At trial, he gave evidence himself and also adduced evidence from his passenger. The evidence and issues were able to be fully canvassed before the magistrate. Even if there was some departure from particulars, I am not satisfied that there was any prejudice or injustice occasioned thereby. Accordingly this part of the appeal is not made out.
Use of a Hand-held Mobile Telephone
The appellant’s evidence included an acknowledgement that he was conducting a conversation using his mobile telephone as he drove along Hanson Road. That conversation was conducted using the earpiece held in his right ear by his right hand. As already noted, that earpiece was attached by a flexible cord to the mobile telephone unit. A microphone was also attached to the cord in such a position so as to be able to transmit the appellant’s own voice. As I understand it, the mobile telephone unit itself was placed in the console between the driver’s seat and the front passenger seat.
Although at one stage in his submissions on appeal, the appellant was inclined to contend that his holding of the earpiece in the ear might have only been momentary, that submission cannot be accepted. The magistrate found that the appellant was able to have the conversation by holding the earpiece to his ear. That finding was based on the appellant’s admission that the reason he was holding his right hand to his ear was in order to hold the earpiece to the ear.
It seems clear enough on the appellant’s own evidence that he was using his mobile telephone to have a conversation with his caller while at the same time driving his vehicle. 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. This suggests that ARR 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, and perhaps with avoidance of a circumstance in which the vision (in particular the peripheral vision) of the driver may be restricted by the position of the arms in holding a mobile telephone to the ear. It would be consistent with this purpose that r 300 should be understood as proscribing the holding of an earpiece to the driver’s ear where that was necessary to permit use of a mobile telephone. But even so, the language of the rule still has to be capable, on a reasonable construction, of supporting that construction.
As it is the use of a mobile telephone which is hand-held while driving which is proscribed, the question on this appeal is whether the earpiece attached by a cord to the mobile telephone unit formed part of the appellant’s mobile telephone. If it did, then given that the appellant was holding the earpiece to his ear in order to conduct the conversation, it would follow that he was using a mobile telephone which was hand-held.
As I understand it, the cord was attached to the mobile telephone unit by the insertion of a steel pin attached to the cord into a socket within the mobile telephone unit designed for that purpose. The cord served a two-fold purpose. First, it enabled the transmission of the sound received by the mobile telephone unit to the earpiece at the end of the cord, thereby enabling the appellant to listen to his caller by the holding of the earpiece to his ear. Secondly, the microphone attached to the cord enabled sounds made by the appellant to be transmitted, via the mobile telephone unit, to the caller. The mobile telephone could be used with or without the cord and earpiece. The cord and earpiece were not essential for its use in some circumstances but were essential for use of the mobile telephone when it was not held close to the ear and mouth of the appellant. Conversely, there was no point in the appellant holding the earpiece to his ear unless it was attached to the mobile telephone unit.
In my opinion, the magistrate was correct in concluding that the cord, earpiece and microphone formed part of the appellant’s mobile telephone so that the holding of the earpiece, while the appellant conducted a conversation, constituted a holding of the mobile telephone. Each was attached to the other and the mobile telephone unit. Each formed an integral part of the equipment being used by the appellant to conduct the conversation. If hypothetically the earpiece and microphone were attached by a form of rigid rod to the mobile telephone unit, and positioned so as to be adjacent to the ear and mouth by a hand holding either the mobile telephone unit itself or the rod, it would be natural to conclude that the mobile telephone was being hand-held. Clearly it would be so in that circumstance if the hand held the mobile telephone unit itself. I consider that the holding of the rigid rod instead of the mobile telephone unit itself in this hypothetical example would also be a holding of the mobile telephone. In this case the earpiece had to be held to the appellant’s ear because of the lack of rigidity in the cord. I am not able to see any relevant difference between this circumstance and the hypothetical situation involving use of a rigid rod.
When the cord and earpiece were attached by the appellant to the mobile telephone unit, they became part of the mobile telephone. This does not involve any expansive view of the language. Ordinarily, when an accessory is attached to an appliance, it is regarded as forming part of the appliance. It is not to the point that when not so attached, the appliance may still be used, but in some other way. When a hand hold is attached to a power drill so as to permit it to be held by both hands during its operation, it is natural to regard the hand hold as part of the drill. It is also natural to speak of persons holding the drill when they are gripping it by means of the (detachable) hand hold only. The earpiece attached by the cord to the mobile telephone unit is analogous to the hand hold attached to a power drill. In this case, as the appellant was holding an accessory attached to the mobile telephone unit he was properly held, in my opinion, to have been holding the mobile telephone. It is not necessary to consider in this case, the use of wireless earpieces.
Some support for this conclusion can be drawn from ARR 80 and 101. ARR 80 requires a driver approaching a children’s crossing to stop at the stop line if “a hand-held stop sign” is displayed at the crossing. ARR 101 requires a driver approaching “a hand-held stop sign” to stop before reaching the sign. Each of ARR 80 and 101 contain diagrams of the form of signs to which they refer. Each diagram is comprised of a circle with the word “stop” printed in large letters inside it. None of the diagrams make any provision for any form of a handle to be fixed to the sign. Yet it is common experience for such signs to be used when attached to the end of a pole or, in some circumstances, when suspended by a rope or cord. It is sensible to speak of such signs as being hand‑held when the hand is holding a handle attached to the sign rather than the sign itself.
In the circumstances of this case, the cord and earpiece formed part of the mobile telephone at the time of its use by the appellant. The appellant was holding the earpiece in place by hand. In those circumstances the appellant was, in my opinion, using a hand-held mobile telephone within the meaning of ARR 300. Accordingly, the appeal against conviction should be dismissed.
Appeal Against Sentence
The maximum penalty for a contravention of ARR 300 is a fine of $1,250[7].
[7] ARR 10; Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999, reg 50.
The appellant, who is now aged 39, has no prior court appearances.
As already noted, the appellant was fined $182 in addition to court fees and costs. The appellant submits that the amount of the fine was excessive.
The appellant sought to contrast the offence constituted of a breach of ARR 300 with other offences. More particularly, he sought to contrast the fine imposed in his case with penalties imposed in respect of other contraventions of the criminal law. Such comparisons are notoriously difficult. The offences themselves, the circumstances in which they may be committed, and the personal circumstances of those who commit them vary so widely that I do not consider that useful comparisons may be made.

I have referred already to the evident purpose of ARR 300. It serves an important purpose in promoting road safety. The appellant submitted that his offending was not the worst of its type. It involved limited distraction from his driving. He had not had to dial any number, he had not been sending any text message, and he had stopped his car in order to answer the call and fix the earpiece before resuming his journey. The appellant also submitted that his actual conduct was not materially different from that involved in the use of a CB radio, which the ARR did not proscribe. There is substance in each of those points, but there is no reason to suppose that they were not considered by the magistrate.
The imposition of a sentence involves the exercise of a discretionary judgment. The circumstances in which an appellate court will interfere with such a discretionary judgment are well established. Such interference occurs only where the court considers that the sentencing court has proceeded on some wrong principle, has taken into account an irrelevant consideration, has failed to have regard to a relevant consideration, or, where no precise error can be identified, the court is satisfied that the penalty imposed is wholly erroneous.
But for one circumstance, I would not be satisfied that those circumstances exist in the present case. The appellant submitted that a conviction should not have been recorded. He referred to his good record, the conduct involved in the commission of the offence to which I have just referred, and the potential detrimental effects on his future employment.
Section 16 of the Criminal Law (Sentencing) Act 1988 provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)    the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.
By s 16, the court may, having regard to defined matters, impose a penalty without recording a conviction if it is satisfied that there is “good reason” for so doing. As was pointed out by Bleby J in Sims v Police the assumption behind s 16 is that in most cases a conviction will be recorded. The application of s 16 is an exception to the normal rule[8].
[8] [2000] SASC 102 at [7].
Where s 16 may be of possible application, it is appropriate for a magistrate to inform an unrepresented defendant of its provisions, and to invite submissions as to its application in the circumstances of his or her case[9]. That obligation does not arise in all cases, as often it will be apparent that s 16 could not, on any reasonable view, be invoked.
[9] Cuthbert v Police [2003] SASC 55; (2003) 225 LSJS 472; McQuade v Police [1999] SASC 277.
The appellant submitted that he had not been advised about s 16. Mr Wait, for the respondent, did not seek to contend to the contrary. The matter is not addressed in the affidavit of the police prosecutor. The fact that it is not mentioned may confirm that the matter was not raised at all before the magistrate. The appellant submits that had he been informed of s 16 he would have sought not to have a conviction recorded. He is particularly concerned about the possible effect of any conviction on his prospects on future employment.
In these circumstances I am prepared to accept that the magistrate was in error in not considering the possible application of s 16, and in not drawing its provisions to the attention of the appellant. I consider it appropriate therefore to consider that aspect of the sentencing myself.
I am satisfied that there was good reason not to record a conviction in the appellant’s case. He is a person of good character as his record reveals. In addition, I note that the magistrate described him as a good witness who was apparently truthful. I do not consider the circumstances of the offence to be trifling but, as I have said, this is far from the worst offence of its kind. Those circumstances, in combination, lead me to conclude that there was good reason not to record a conviction.
I will allow the appeal therefore so as to set aside the recording of a conviction.
Conclusion
The appeal against conviction is dismissed. I allow the appeal against sentence so as to set aside only the recording of a conviction. In all other respects the appeal against sentence is dismissed.