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Motorist wins court challenge over mobile phone infringement

A Gold Coast motorist has successfully defended a charge of driving while using a mobile phone despite a court being shown a traffic camera photograph of him holding an ‘iPhone’.

Southport Magistrate Dzenita Balic last week found Konrad Gordon Gallaher not guilty of an offence under Queensland’s Transport Operations (Road Use Management-Road Rules) Regulation 2009 for operating a motor vehicle while using a mobile phone.

Gallaher – who represented himself during a summary trial on 8 August 2022 – had argued the device he was seen using in the Department of Transport and Main Roads-issued infringement notice was not a mobile phone, but rather a portable music player.

Under current Queensland laws, using a mobile phone while driving attracts a $1078 fine and four demerit points.

The penalty also applies when a motorist uses a phone while a vehicle is stationary but not parked – as in stopped in traffic or at traffic lights.

The court was told Gallaher testified he was in possession of two devices in the car at the time he was photographed – one a mobile phone mounted on his dashboard, and the other a music player.

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Gallaher, in giving evidence, testified the Apple iPod he was holding “only played music and it had no mobile phone functionality”.

However, when pressed about the device by Ms Balic, Gallaher conceded it was what most people called an iPod 6.

Ms Balic, in a 10-page decision delivered on Thursday, said it was accepted by both Gallaher and the prosecution there was photographic evidence before the court showing him holding what appeared to be a phone.

“The arguments by both parties ultimately descended to one central question: was the device that Mr. Gallaher used, a mobile phone?” Ms Balic said.

“Mr. Gallaher explained to the court that the device that he was using, as depicted in (the photo marked) exhibit 4, only played music and it had no mobile phone functionality. It also cannot send or receive messages.

“The device was produced (in court) by Mr. Gallaher (and he) … explained to me … that this was the device he referred to as an Ipod 6. He stated the phone had no functionality; it had no SIM card inserted in it and it was and old device, which was historically owned by his son.

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“Mr. Gallaher certainly disputed the suggestion that the device that he held was in fact a mobile phone.”

The prosecution, in support of its case, submitted photographic evidence which showed Gallaher holding a device while driving a vehicle registered in his name.

It also asserted the device used by Gallaher was “aesthetically” an iPhone and that his argument that the device had no functionality as a mobile phone was simply a “convenient” excuse.

Ms Balic said: “My view is that, at the time of the driving, I cannot be satisfied … that this was indeed a mobile phone at the relevant time.”

“A mobile phone … must take on its natural meaning. It is a device capable of communication. According to the Macquarie Dictionary, a mobile phone is a ‘portable cellular telephone’.

“Equally, a telephone is defined as ‘a system or process for the transmission of sound or speech converted into electrical or radio signals to a distant point.’

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“The second definition is ‘an electrical device consisting of a microphone and a receiver with a handset, used to connect to this system.’

“Returning to the dictionary definition: my conclusion therefore is based upon the natural and ordinary meaning of that noun, in this context.

“Reasonable minds might differ as to the presentation of the device and its possible use but to my mind, paying regard to the nature of the evidence, this was not a mobile phone at the relevant time.

“Mr. Gallaher is therefore not guilty of the offence.”

The court also noted infringement notices for this type of offence were not regularly challenged in court.

It is not known at this stage if the Department of Transport and Main Roads will appeal the decision.

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Should it be appealed, the matter would be referred to a District Court judge for consideration.

Read the decision.

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