Department of Transport and Main Roads v Konrad Gordon Gallaher [2022] QMC 2

MAGISTRATES COURT OF QUEENSLAND CITATION: Department of Transport and Main Roads v Konrad Gordon Gallaher [2022] QMC 2 PARTIES: Department of Transport and Main Roads v GALLAHER, Konrad Gordon (defendant) FILE NO/S: MAG-00062236/22(1) DIVISION: Magistrates Court PROCEEDING: Trial ORIGINATING COURT: Magistrates Court DELIVERED ON: 09th November 2022 DELIVERED AT: Southport HEARING DATE: 08th August 2022 Further submissions: 31st August 2022, 07th September 2022 MAGISTRATE: D Balic ORDER: Not guilty CATCHWORDS: TRIAL – STATUTORY INTEPRETATION – where the defendant was charged with using a mobile phone – where the question was as to the meaning of the phrase ‘mobile phone’ Acts Interpretation Act 1954 (Qld), s 14 State Penalties Enforcement Act 1999 (Qld) Transport Operation (Road Use Management) Act 1995 (Qld) Transport Operations (Road Use Management-Road Rules) Regulation 2009 Burns v Police [2007] SASC 191 Chakley v Munro [2009] QDC 94, cited Kyriakopoulos v Police (SA) [2006] SASC 71, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited R v A2 (2019) 269 CLR 507; (2019) 93 ALJR 1106; [2019] -- 1 of 10 -- 2 HCA 35, cited SOLICITORS: E Grosvenor, for the Department of Transport and Main Roads Self-represented [1] Mr. Gallaher is charged with an offence under regulation 300 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. [2] The offence is created in sub-regulation (1), which states: (1) The driver of a vehicle must not use a mobile phone while the vehicle is moving or is stationery but not parked. [3] Sub-regulation (2) creates an inapplicability section but for reasons of a factual nature, neither it nor sub-regulation (3) or (4) are relevant to these proceedings. [4] Sub-regulation (5) contains definition of ‘use’ and ‘mobile phone’. It is a matter that I will ultimately refer to in the context of a construction point that is the central issue I have had to decide. In essence it’s an exclusionary definition as pertains to the question of what a mobile phone is, in this statutory context. It also defines the word “use” as to such a mobile phone. [5] Mr. Gallaher was unpresented at his trial. I have aided him, within appropriate bounds, as to the conduct of the trial1. [6] Mr. Gallaher pleaded not guilty to the offence. My role was to determine whether I am satisfied beyond a reasonable doubt as to his guilt of the offence. [7] It was uncontroversial that Mr. Gallaher was driving the vehicle at the relevant time. That proposition was a matter of statutory proof in the way that these types of cases are conventionally prosecuted. [8] Photographic evidence was placed before me which was also proof of the driving of that vehicle by Mr. Gallaher, who was also said to be registered owner of the vehicle. [9] Mr. Gallaher also gave evidence; I have had regard to that and its importance to the case will be highlighted later in these reasons. Mr. Gallaher did not assume a burden of proving his innocence by giving evidence. I have acted on his evidence. As I said, the prosecution must satisfy me of proof beyond reasonable doubt of the offence. [10] I have not had regard to anything outside the court room. And certainly not any public opinion as to the use of mobile phones in these circumstances. [11] The arguments by both parties ultimately descended to one central question: was the device that Mr. Gallaher used, a mobile phone? 1 TT, Day 1, PP 3.1-6.35 -- 2 of 10 -- 3 [12] I have paid attention to the oral submissions and later written submissions by the parties, including reference to the ordinary use of language as well as statutory interpretation techniques to be employed. The prosecution ultimately submitted that the verb ‘use’ contextually expands the noun ‘mobile phone’. [13] As this is an element of the offence, the prosecution must therefore satisfy me beyond a reasonable doubt that the device that Mr. Gallaher was using, was indeed a mobile phone. [14] Mr. Gallaher in that context gave sworn evidence to the court. [15] According to Mr. Gallaher, there were two relevant devices in the car. He stated that his mobile phone was mounted on the dashboard and that the device that is depicted in the photograph tendered into evidence, was a portable music player2. [16] Mr. Gallaher also gave sworn evidence as to his compliance with respect to mobile phones. He referred to electronic equipment that he would connect within his vehicles so that his mobile phone is always mounted and as such, complies with legislation3. [17] He in fact presented with the physical items that I have viewed, and that the prosecution had an opportunity to view, to support that evidence in the general sense. Photographs of the phone were taken in court, and they became exhibits in the trial. Although it is difficult to categorise the nature of such evidence, it may be akin to evidence pertaining to his good character generally and as such ought to be paid regard to. Irrespective of its legal epithet, I have done that. [18] Mr. Gallaher explained to the court that the device that he was using, as depicted in exhibit 4, only played music and it had no mobile phone functionality. It also cannot send or receive messages4. [19] Mr. Gallaher was cross-examined. [20] Mr. Gallaher did not dispute being the driver of the car and holding the device he described as a portable music player. When further pressed about the device, Mr. Gallaher described the device as an Apple iPod or as he put it, ‘what are they called – 6’5. [21] The device was produced by Mr. Gallaher. Photographs were taken of it by the court. They became exhibits in the trial. [22] Mr. Gallaher explained to me, once I viewed it, that this was the device he referred to as an Ipod 6. He stated that it had no phone functionality; it had no SIM card inserted in it and it was an old device, which was historically owned by his son6. [23] I have looked at the photographs and the device in court, and it is a device, which one knows to be an Iphone. That is within my own experience as a fact finder. I have not looked through the phone; it was not made a physical exhibit, nor did the 22 Day 1, PP11.14-16 33 Day 1, PP11.25-34 4 Day 1, PP16.28-44 5 Day 1, PP18.34-37 6 Day 1, PP 19.14-15 -- 3 of 10 -- 4 prosecution look through the phone or interact with it in any way, to undermine Mr. Gallaher’s evidence about the nature of device at the relevant time. Or more the point, as to its capacity or functionality. [24] Therefore, the only evidence was that the device had no phone functionality, nor any SIM attached thereto. It only played music. [25] It was also not suggested to Mr. Gallaher that a 000 call could be made from the same. [26] Mr. Gallaher certainly disputed the suggestion that the device that he held was in fact a mobile phone7. [27] Mr. Gallaher’s evidence is to be added to that of the prosecution case for my consideration. I must be satisfied beyond a reasonable doubt upon the whole of the evidence therefore, that the prosecution has proved its case before he could be convicted. [28] In the context of his evidence, I needn’t be satisfied that he is telling the truth before he is entitled to be acquitted. [29] I certainly considered Mr. Gallaher to be an honest witness. Although he may not have been reliable as to how long he had had the device for, he was definite as to the device not having the capability to make calls or in fact communicate in any way. [30] I could not find, and I do not, that he was dishonest in his description of the device as a portable music player. Although to my mind he is clearly wrong about the device being an Ipod, his other assertions as to the limited musical functionality of the device remained unchallenged. [31] He brought the device to court and photographs were taken of the same, as earlier mentioned. The phone was capable of inspection by the prosecution. The other accessories that he similarly used for a hands-free approach as to an actual mobile phone, leads me to conclude that he was an honest and reliable historian. [32] It is in that context, that the construction question arose: is this a mobile phone within the meaning of the offence, as pleaded, irrespective of the limited functionality of the Iphone? [33] Out of that factual analysis arose the necessity to consider such a question through the lens of statutory interpretation. Statutory interpretation [34] The relevant regulation is the Transport Operations (Road Use Management-Road Rules) Regulation 2009; it is also known according to regulation 1 as the Queensland Road Rules. [35] The object of the regulation ‘is to provide road rules in Queensland that are substantially uniform with road rules elsewhere in Australia8’. 7 Day 1, PP22.27-30 -- 4 of 10 -- 5 [36] Regulation 300, which is headed “Use of mobile phones” is under the part of the regulation which is headed “Miscellaneous Road rules9”. [37] For example, it is surrounded by offences that are of variable content. Regulation 299 is headed “Television receivers and visual display units in motor vehicles” and regulation 301 is headed “Drinking liquor while driving”. [38] Relevantly then, rule (as they are described as rules) 300 provides: 300 Use of mobile phones (1) The driver of a vehicle must not use a mobile phone while the vehicle is moving or is stationary but not parked. Maximum penalty—20 penalty units …... (5) In this section— mobile phone does not include a CB radio or any other two-way radio. use, in relation to a mobile phone, means hold the phone in the driver’s hand, or rest the phone on any part of the driver’s body— (a)whether or not the phone is on or operating; and (b)whether or not for the purpose of operating the phone or a function of the phone; and (c)whether or not the phone is partially or wholly supported by another part of the driver’s body or another thing. [39] In relation to the exclusionary provision as to what is not a mobile phone, both a CB radio and any other two-way radio implies a component of active communication between at least two persons. That remains its focus. It does not answer the construction point. [40] Undoubtedly, the correct approach as to construction is that found and honoured by the High Court in such cases as Project Blue Sky Inc v Australian Broadcasting Authority10. [41] Within that, relevantly the court stated: “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument as a whole’.” 8 See regulation 3 of the Transport Operations (Road Use Management-Road Rules) Regulation 2008 (Queensland Road Rules) 9 Part 18, Division 1 of the Queensland Road Rules 10 (1998) 194 CLR 355; [1998] HCA 28. -- 5 of 10 -- 6 [42] That exercise is about the words in the statute itself read in their context. And of course, ‘context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy11.” [43] This common law position reflects the statutory interpretation landscape of Queensland12. Under section 14A of the Acts Interpretation Act 1954 (Qld), ‘the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.’ The use of extrinsic material is governed by section 14B. Mr. Gallaher asserts that the term ‘mobile phone’ is to be given its ordinary and unambiguous meaning. The prosecution asserts that the ordinary meaning, were it ascribed that which Mr. Gallaher contends, would lead ‘to a result that is manifestly absurd or is unreasonable13’. I do consider that under s14B (2), I should consider the extrinsic material. [44] I stated earlier that these types of prosecutions rely upon other statutory instruments to prove certain aspects. Court colloquialism attributes it a name of ‘paper prosecutions.’ [45] I thought it prudent to analyse those other statutory instruments which are relied upon. [46] The first statutory ally is the State Penalties Enforcement Act 1999. There is nothing within this Act that would assist the interpretation of a mobile phone; none of the evidentiary provisions are specific enough for this type of offence. [47] The second statutory instrument is the Transport Operations (Road Use Management) Act 1995. A certificate citing section 123C (1) was tendered that the car was registered to Mr. Gallaher, amongst other matters. A further certificate relying upon under section 120(2AA) was tendered. Section 120 is evidence of location, time, accuracy of the image, the matters depicted within it and other relevant specifications14. [48] No challenge has been made by Mr. Gallaher to any of these matters. [49] A more specific provision is applicable. Section 120E is headed “Photographic or video evidence of mobile phone use”. According to sub-section (2), insofar as definitive proof matters, the production of the image is proof that the ‘vehicle depicted in the image or video is taken to be moving, or stationary but not parked.” The word mobile phone takes its meaning from the offence itself15. [50] Intriguingly, section 120F (1) allows for a report as pertains to ‘particular elements of the offence’. No certificate to that effect has been relied upon the prosecution. Additionally, neither the word ‘mobile phone’ or ‘phone’ is defined within Schedule 4 of this Act. 11 R v A2 (2019) 93 ALJR 1106 at 1117-1118; per Kiefel CJ and Keane J with whom Nettle and Gordon JJ agreed. 12 Acts Interpretation Act 1954 (Qld) 13 Section 14B(1)(b) 14 Section 120(2)(a), (b),(c) and (d). 15 Section 120E(3) -- 6 of 10 -- 7 [51] There is no provision within these Acts, for example, that deems a mobile phone as a mobile phone. This is to be contrasted with some of the earlier provisions as to deemed proof. [52] That directed my query back to the Queensland Road Rules themselves. Undoubtedly, there is a statutory relationship between it and the Transport Operations (Road Use Management) Act 1995. [53] The Queensland Road Rules commenced on the 12th of October 2009. The original regulation 300 was different16. Its focus was upon a mobile phone being held in the ‘driver’s hand’. The definition of use was narrower. It referred to a person “holding the phone.”, “writing, sending or reading a text message”, “turning the phone on or off” or “operating any function of the phone”. [54] On the 01st of August 2013, the Transport and Other Legislation Amendment Regulation (No.1) 2013 commenced. A change that was inserted, at that time, regulation 244O, prohibited the use of a mobile phone whilst the person held it in their hands while using a personal mobility device. The use component remained as it had been in 2009. [55] On the 01st of January 2015, the Transport and Other Legislation Amendment Regulation (No.3) 2014 commenced. That concerned an amendment to regulation 299. It notably was an expansion of what concerned a ‘visual display unit’ and one of the statutory examples was “mobile phones or tablet computers equipped with GPS receivers, or paired with GPS receivers by Bluetooth, being use as navigational aids”. [56] On the 26th of July 2021, the Transport Legislation (Distracted Driver and Other Matters) Amendment Regulation 2021 commenced. The authorising Act was the Transport Operations (Road Use Management) Act 1995. It reflects the current regulation. [57] It is true that there has been an expansion of culpability through the widening of the term of “use”. The nature of the interaction between the driver and the mobile phone has been changed. Indeed, one can reliably conclude that there has been a metamorphosis of the word “use”. However, the same cannot be said as to the noun “mobile phone”. In the 2015 amendment, the legislature was clearly aware of other technological devices and had made a reference to the same (for example tablet computers as an example to the amendment of regulation 29917). But no changes had been made to the noun “mobile phone”. [58] It was then necessary for me to consider the intention behind the legislation. The policy objectives of the 2021 amendments are logical. They are to ‘address unsafe driving behaviours by providing that it is an offence for the driver of a vehicle to hold a mobile phone in the driver’s hand or rest a mobile phone on any part of the driver’s body while the vehicle is moving or is stationary by not parked’. It was also about the facilitation of ‘camera enforcement of mobile phone and driver- related seatbelt offence18.’ It was to achieve that objective by the amendment of the Queensland Road Rules. 16 See repealed rule 300 headed “Use of mobile phones’ 17 See amendments in 2015 18 Explanatory Notes for SL 2021 No. 102, page 1 -- 7 of 10 -- 8 [59] Within the explanatory notes, a reference is made to driver distraction being ‘one of the ‘Fatal Five’ driving behaviours19’. [60] There was a part dedicated to mobile phone use. It referenced several matters of community concern. The first was that mobile phone use was the one of the ‘most prevalent behaviours associated with driver distraction20.’ It referred to statistical analysis of mobile phone offences including the increase to both the fine penalty and demerit point consequences. It certainly does refer to drivers ‘taking their eyes off the road, their mind away from the driving task and their hand/s off the steering wheel21.’ There is reference thereto to the driver being distracted by ‘touching or tapping’ or accessing ‘social media content22.’ [61] That background made it necessary to transform enforcement of mobile phone offences through the introduction of camera enforcement23. The expansion of the word “use” was to embrace that technology. [62] In this case, Mr. Gallaher can be seen to have had clearly a device resting in his hand which he was using. All that was able to be determined with clear precision. [63] Having absorbed the policy objective, which is reflective of safety to road users, there is no assistance within that, that would allow for an expanded view as to the word ‘mobile phone’. The stated objectives and subsequent amendment to the word ‘use’ strongly suggests that its focus was on the minimisation of distraction from mobile phones. The widening of the meaning of the verb is therefore so understood and echoes such an objective. It is based on the technological ability to detect such interaction between user and mobile phone. [64] This level of detail may explain why there are no deeming provisions for mobile phones, despite the nature of the available technology. This device [65] In my respectful view, the word ‘mobile phone’, in context, does not permit a conclusion of the wide meaning of the noun, based on the expansion of the verb itself. [66] Whilst they are inextricably linked considering that any allegation requires both ‘use’ and ‘mobile phone’, one could not impute an expansion of the noun from the verb itself, despite their relationship. [67] And indeed, viewing the word, ‘use’, in 300(5), it states ‘in relation to a mobile phone’. To my mind, considering that phrased fragment and the consequential nature of the definition ‘use’, which follows ‘mobile phone’ and its exclusion, it could only mean that a determination has been made that it is a mobile phone, and nothing else, which then triggers the verb. 19 Explanatory Notes for SL 2021, No. 102, page 2 20 Explanatory Notes for SL 2021, No. 102, page 2 21 Explanatory Notes for SL 2021, No. 102, page 2 22 Explanatory Notes for SL 2021, No. 102, page 3 23 Explanatory Notes for SL 2021, No. 102, page 3 -- 8 of 10 -- 9 [68] If I were wrong about that, then the use of the verb to enhance the noun would include any number of now digital devices that have not been legislated for. [69] The argument then really turns to what this device really is, in the context of this trial. The prosecution correctly submits that aesthetically this is an Iphone. Or to be more accurate, it was an Iphone used by Mr. Gallaher’s son, which now lacked that relevant functionality. [70] The criticisms now made by the prosecution as to Mr. Gallaher’s evidence about his description have been dealt with. But in brief, Mr. Gallaher presented this device to the court and to the prosecution, without hesitation. He also came equipped with other electronic equipment to show the nature of his bona fide position. None of those matters can be ignored. The prosecution argument that I am entitled to reject his evidence is legally correct but would be illogical and inconsistent with the evidence. As I said, there was no significant challenge to his assertions. [71] It is in this factual context within which I am asked to be satisfied beyond a reasonable doubt as to this device being a mobile phone. [72] It is also correct to submit, as the prosecution did, that it would be a convenient argument for anyone to simply assert that the phone had no functionality at the time. But that is not the state of the evidence here. The prosecution’s photographic evidence shows Mr. Gallaher’s own phone being visible in the cradle, and his other device being used. The generous conduct by him as to compliance with legislation through the provision of other apparatuses, to my mind, place this matter into a factually unique category. [73] Even if I were wrong about the methodology and thus the result of the journey of statutory construction, to my mind, the other matter is that of proof beyond a reasonable doubt. Thus, my decision is not acontextual. [74] I should add, that to me, the use of this device by Mr. Gallaher was just as dangerous as the use of a mobile phone. However, inferring an offence based on an intention, would at the least have the potential to be inconsistent with section 14A (2) of the Acts Interpretation Act 1954 and is largely antithetical to the general rules of construction. To that end, any submission of such a nature should be rejected. [75] A mobile phone therefore 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 telephone24’. [76] 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.’ [77] The second definition is ‘an electrical device consisting of a microphone and a receiver with a handset, used to connect to this system’. [78] My view is that, at the time of the driving, I cannot be satisfied, considering the evidence by Mr. Gallaher, which I have now discussed from different angles, that this was indeed a mobile phone at the relevant time. 24 Macquarie dictionary 2022 (online), 08 th edition, Macquarie University, Sydney, NSW -- 9 of 10 -- 10 [79] Some decisions have touched upon the peripheral points of my consideration. For example, the decision of Kyriakopoulos v Police (SA) [2006] SASC 71 did focus on the expansion of the word ‘mobile phone but that was a reference to the cord and the earpiece. To my mind, that does not assist me. A later South Australian decision of Burns v Police25dealt mostly with the meaning of ‘use’ rather than a mobile phone, though some of the matters as to parliamentary intention are sound and have been canvassed. I have not been referred to any other precedents by either party. [80] Returning to the dictionary definition: my conclusion therefore is based upon the natural and ordinary meaning of that noun, in this context. [81] 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. [82] This decision should not be seen as an avenue of escaping criminal responsibility. The critical point in this case was the presence of Mr. Gallaher’s mobile phone in the cradle as evidenced by the police photograph, without any interaction between it and Mr. Gallaher. Added to that are the other factual matters I have variously discussed. It is therefore in that context, that I find that he was not using a mobile phone at the relevant time. [83] An alternative submission was made as to regulation 299. Even if I were to find that it is a cognate offence26, there is insufficient evidence to show that this device is either a ‘television receiver’ or ‘visual display unit’ ‘in or on’ the vehicle. To my mind, this regulation is focused more on the types of statutory examples provided for in 299(2)(b)(ii). Whilst that list is not exclusive, it assists with the general import of those words. And its visibility is a feature that is crucial to the assessment of both of those nouns. Regulation 299(1)(a) refers to it being visible from the ‘normal driving position’. Ignoring the vagueness of the phrase, it does not coincide with the factual features in this matter. And the same level of scepticism can be expressed towards the words ‘or on the vehicle.’ Without the necessity to decide this ancillary statutory point, to my mind the factual features do not fall under the umbrella of this offence. [84] Mr. Gallaher is therefore not guilty of the offence. 25 [2007] SASC 191 26 Chakley v Munro [2009] QDC 94. -- 10 of 10 --