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District Court 23 January 2009

Crescente, Lionel v D.P.P

[2009] NSWDC 129

Traffic & driving
CRIMINAL LAW CONVICTION APPEAL FROM LOCAL COURT AUSTRALIAN ROAD RULES USE OF MOBILE PHONE BY DRIVER MEANING OF MOBILE PHONE BLUETOOTH CAPABLE OF DOING SO.

Citation: Crescente, Lionel v D.P.P [2009] NSWDC 129
Court: District Court of New South Wales
Date: 23 January 2009
Judge(s): Nicholson SC DCJ

Background

The appellant was a driver observed by a highway patrol officer stopped at traffic lights in Bourke Street, Zetland. The officer saw the appellant holding a silver-grey flip phone to his left ear, with his lips moving as if in conversation. When the appellant noticed the officer, he dropped the phone from his hand.

The appellant disputed this account. He claimed he was not holding a mobile phone but was instead using a Bluetooth hands-free system connected to his vehicle's steering wheel controls, with an earpiece in his ear. He argued that Bluetooth technology did not fall within the definition of a "mobile phone" under the applicable road rule.

The Local Court magistrate preferred the officer's evidence and convicted the appellant, imposing a $230 fine and $70 in court costs. The appellant brought an all-grounds appeal to the District Court.

  • Whether a Bluetooth-capable device held in a driver's hand constitutes a "mobile phone" for the purposes of Australian Road Rules, Rule 300.
  • Whether the appellant was in fact holding a device in his hand while driving, as a matter of credibility.
  • Whether the conviction and penalty imposed by the magistrate should be confirmed on appeal.

Decision

The District Court first addressed the definitional question: does a Bluetooth-enabled device qualify as a "mobile phone" under Rule 300? Nicholson SC DCJ held that any portable device capable of being held in the hand and capable of conveying or activating a carriage service (that is, enabling a telecommunications transmission) constitutes a mobile phone. The fact that such a device may also perform other functions is irrelevant to this classification.

On the facts, the court noted that the appellant's immediate response to the officer's allegation was "This is a Bluetooth," rather than a denial that he was holding anything in his hand. The court found this response consistent with the officer's account that a device was being held.

The credibility findings of the magistrate were central to the appeal's resolution. The magistrate had expressly found the appellant to be an unreliable witness, and the District Court, lacking the benefit of directly observing the witnesses at trial, deferred to those findings. Nicholson SC DCJ concluded that whether the device held was a Bluetooth unit or a conventional mobile phone, the appellant was using it while holding it in his hand, satisfying the elements of the offence.

The court also commented briefly on an RTA pamphlet the appellant produced, noting that its contents appeared misleading insofar as they suggested broader lawful use of mobile phones while driving than Rule 300 permits.

Orders Made

  • Conviction appeal dismissed.
  • Fine of $230 confirmed.
  • Court costs of $70 confirmed.

Key Takeaways

  • The District Court held that a portable device capable of conveying or activating a carriage service qualifies as a "mobile phone" under Australian Road Rules, Rule 300, regardless of what other functions it may perform.
  • A Bluetooth-enabled device is not automatically excluded from the definition of a mobile phone simply because it has hands-free capabilities; the determining factor is whether it is held in the hand and capable of enabling a telecommunications service.
  • In dismissing the appeal, the court deferred to the magistrate's credibility findings, affirming that appellate courts hearing conviction appeals are generally bound by the trial court's assessment of witness reliability where the appellate court did not itself observe the witnesses.
  • Rule 300 prohibits use of a mobile phone held in the hand while a vehicle is moving or stationary but not parked, and "use" is broadly defined to include holding the phone to or near the ear, whether or not a call is actually in progress.
  • Official RTA publications do not necessarily reflect the full extent of legal restrictions on mobile phone use while driving; the court noted that one such pamphlet appeared to overstate the circumstances in which mobile phone use is lawful.

Legislation and Cases Referenced

Legislation:
- Australian Road Rules, Rule 300 (Mobile Phones by Drivers)

Cases cited: None cited in the judgment.