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Supreme Court 14 March 2005

DPP v CHRESTA

[2005] NSWSC 233

Also reported as 152 A Crim R 379
Traffic & driving
CRIMINAL LAW TRAFFIC OFFENCES USE OF A HAND HELD MOBILE PHONE WHEN CRIMINAL.

Citation: DPP v Chresta [2005] NSWSC 233
Court: Supreme Court of New South Wales (Common Law Division)
Date: 14 March 2005
Judge(s): Greg James J

Background

A driver was charged with using a hand-held mobile phone while her vehicle was in motion, contrary to Road Rule 300 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999. Police observed her holding a phone to her ear while driving. She gave evidence that she had not been making a call, but had taken the ringing phone from a passenger and switched it off so as not to wake her sleeping child, briefly raising it to her ear to check it was off.

The Local Court magistrate accepted her account and dismissed the charge. The magistrate reasoned that turning a phone off was not a "use" of it within the meaning of the rule, as the word "use" carried a positive connotation of putting the device into operation rather than deactivating it.

The Director of Public Prosecutions appealed on a question of law alone, under s 56 of the Crimes (Local Courts Appeal and Review) Act 2001. The appeal was brought not to set aside the acquittal but to obtain a declaration clarifying the correct legal interpretation of "use" in Road Rule 300.

  • Whether turning a hand-held mobile phone on or off while driving constitutes "use" of that phone within the meaning of Road Rule 300
  • Whether the magistrate erred in law by construing "use" too narrowly
  • What remedy, if any, was appropriate given the appeal was against an acquittal

Decision

Greg James J held that the magistrate had erred in law. The word "use" in Road Rule 300 is broad enough to encompass any operation of the phone, including turning it on or off. Switching the phone off is an act of operating the device, and therefore falls within the prohibition.

The Court considered dictionary definitions and the range of functions modern mobile phones perform, including photography, music playback, calendars, and calculators, as well as communications. While it was accepted that using a phone as a physical object for a wholly unrelated purpose (such as swatting an insect) would fall outside the rule, any act of operating the phone's functions is covered. Turning a phone on or off engages the phone's operational capacity and plainly satisfies the definition of "use."

Because the appeal was against an acquittal and the magistrate had accepted the defendant's evidence and found little culpability, Greg James J declined to disturb the acquittal or remit the matter. The Director had not sought that outcome either. The appropriate course was simply to publish reasons correcting the legal error.

Orders Made

  • Declaration made in accordance with paragraph 2 of the summons, confirming the correct construction of "use" in Road Rule 300
  • Summons otherwise dismissed (the acquittal was not set aside)
  • No order as to costs

Key Takeaways

  • Road Rule 300 prohibits the "use" of a hand-held mobile phone while driving; the Supreme Court confirmed this word extends beyond making or receiving calls to include any operation of the phone, including turning it on or off.
  • Turning a phone off while driving is an act of operating the device and falls squarely within the prohibition, even if no communication is made or received.
  • The breadth of "use" encompasses operating any function of a hand-held mobile phone, including sending or receiving texts or other messages, and accessing other built-in features.
  • A purely incidental physical handling of the phone wholly unconnected to its functions (the "bludgeon" example) was acknowledged to fall outside Rule 300, though the Court left the precise outer boundary of that exception to future cases.
  • Where a DPP appeal against an acquittal raises a pure question of law, the Supreme Court retains discretion under s 59 of the Crimes (Local Courts Appeal and Review) Act 2001 to limit relief to a declaration of correct legal principle, without setting aside the acquittal.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), incorporating Australian Road Rules, Road Rule 300
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 56, 59

Cases:
No cases were cited in the portions of the judgment provided.