Director of Public Prosecutions v Eseque

Issues and principles

1. The question of law arising on this appeal was submitted to be: "Whether, in relation to an offence of 'Use mobile phone while driving' pursuant to section 300-1(1) of the Road Rules (NSW) 2014, it is necessary to prove that, at the time of use, the device was capable of sending or receiving voice or other data over a mobile phone network."
2. There was no issue between the parties about the applicable principles of law, given the construction question which arises to be resolved. In Tasmania v Commonwealth & State of Victoria [1904] HCA 11; (1904) 1 CLR 329 it was long ago observed that the intention of an enactment is to be gathered from its words. If they are plain, effect must be given to them and if they are doubtful, the legislature's intention is to be gathered from the other provisions of the statute, aided by a consideration of surrounding circumstances. Recourse to contemporaneous circumstances, the history of the law and the object of the legislature in passing it is also permitted: at 359.
3. More recently in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 it was explained that the statutory provision must be construed consistently with the language and purpose of all the provisions of the statute and by reference to the language of the instrument, viewed as a whole. Thus the context, general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. This process of construction must always begin by examining the context of the provision itself: at [69].
4. The words of a statute must be read as whole and if the language used is clear and unambiguous, consistent and harmonious with the other provisions of the enactment and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if that leads to a result that may seem inconvenient or unjust: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305.
5. Construction must thus begin with the statutory text, considering the statutory purpose and taking care with the use made of dictionary definitions, because a fortress may not be made of a dictionary: Thiess v Collector of Customs [2014] HCA 12 at [23].
6. It must also be remembered that the meaning of a term may change over time, because of changes to technology or social conditions. So that for example, a tax exemption for taxi travel was held to extend to travel by UberX, even though the technology by which that service operated did not exist at the time of enactment: Uber B.V. v Federal v Commissioner of Taxation [2017] FCA 110. There it was concluded that it was not determinative, in construing the defined phrase "taxi travel" used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), that software technology of the type used in providing the UberX service may not have been known at the time that the statutory provision was inserted into that legislative scheme: at [130]. The phrase thus had to be given its ordinary, everyday meaning, which was found to include the UberX service.

Evidence

1. In the Local Court there was little dispute about the evidence and no dispute that Ms Eseque was using her phone when stopped by police as a navigation device. No expert evidence was called about mobile phones.
2. In evidence was the statement of Senior Constable Frencham, who stopped Ms Eseque's vehicle at about 1.12 am on 20 May 2022, having observed her driving her vehicle without the headlights on. As he approached her car, he had seen that a mobile phone was mounted on a hands-free holder with the screen illuminated, showing a GPS application.
3. Their conversation included: "I Said - … In addition to that you have a mobile phone displaying a map which you are not allowed to have displayed. As a P plater you are not allowed to use a phone for any reason. Just wait here a minute I'll be back. I Said - You don't know. Any P plater can not use a mobile phone for any reason. She Said - I didn't understand." … "She Said - No. I don't go without the lights I don't normally ... I Said - There will be some tickets in relation to not having headlights on while you are driving at night and also while using a phone while driving, ok they will come on In the next two weeks. Make sure your headlights are on when you leave. It looks like you have turned them off." … "I Said Well you need to make sure you have your headlights on and your not using your phone while driving ok. So take the phone down and tum your headlights on an keep going. See you later."
4. In evidence was a photo of the phone mounted on the holder, with the illuminated screen, as well as footage of the incident, about which the Senior Constable gave an explanation, as it was played in court.
5. In cross examination he agreed that in addition to the phone in the holder, when Ms Eseque produced her license, she pulled it from a little package which contained another phone. He also agreed that there was no suggestion that she had touched the phone in the holder and that he had not asked her whether it contained a SIM subscriber identity module card, or whether it was capable of making and receiving calls or messages.
6. In her evidence Ms Eseque explained that she had another mobile phone inside her bag, which was on the passenger seat and that the phone on the dashboard had no SIM card in it and so she could not then use it to make or receive calls or send or receive messages. She said that phone was displaying a map, which was capable of being used as a satnav, without a SIM card, which she had learned from a Google search she had made. The result of that search was in evidence.
7. She also said that she used that phone as a satnav and also to check her speed.
8. In cross examination Ms Eseque did not accept that even without a SIM card a mobile phone was capable of making a phone call to 000. She said it was a new phone, the latest Samsung S21, which she had just purchased but had not begun using to make calls. She agreed that if a SIM card were placed into the device, it would operate as a normal mobile phone.
9. Ms Eseque also said that before she was stopped she had been using the phone's map function, by using the map app, while driving. She explained that it had a big monitor that she liked and that it did not require a service provider to operate the map, which just showed the route, so that it could be used even when the phone was offline. She said she had not put a SIM card in the phone, because she did not want to be disturbed while driving.
10. On that evidence the prosecution accepted that the phone Ms Eseque was using did not contain a SIM card at the time of the alleged offence.
11. What was in issue in the Local Court turned on the proper construction of r 300-1(1) and what the prosecution had to prove, to establish the commission of such an offence.

The parties' cases in the Local Court

1. The prosecution's case was that a mobile phone has many functions, one of which was operating maps. The regulatory scheme intended that drivers such as Ms Eseque not use such phones while driving, they not having a full license.
2. There was no issue that she was using the phone's map function at the time of her offence, even though it was not then capable of making calls. But the prosecution contended that the rule intended to capture use of a broad range of functions on a mobile phone, including the use Ms Eseque was making of it.
3. Ms Eseque's case was that the evidence established that the phone did not fall within the relevant definition of "mobile phone" in r 300, given that it did not then have cellular connection.

Donnelly LCM's decision

1. His Honour concluded, having been taken to Department of Transport and Main Roads v Konrad Gordon Gallaher [2022] QMC 2 that: "I find in this case that I am to accept that the definition of a mobile phone just cannot be anything, there has to be some limitation to what the expression means. This is a case where the phone itself, there was evidence of having no SIM card. This is a case where it could not send or receive voice or other data over a mobile phone network at the time of the driving. And this is a case where the use related to maps, the use of maps. I may be wrong about this, but I am prepared to make a finding in this case I am not able to accept beyond reasonable doubt that what was in the cradle of the car was a mobile phone. It is the case that it was being used for a purpose but in this case the use as operating any other function of the phone disclosed it to be a phone as defined. When the parliament use the word "phone" it means mobile phone. SO, ON THAT BASIS I FIND THE DEFENDANT NOT GUILTY."

The parties' cases

1. The Director's case was that his Honour erred in so concluding, his approach to the construction of the road rules not according with the applicable principles and giving insufficient attention to the regulatory scheme, especially what was provided in r 300.
2. Ms Eseque's case was that his Honour did not err, his conclusion taking necessary note of the ordinary meaning of the term "mobile phone" used in r 300-1 and what the rules otherwise provided. It being clear that the rules were directed toward proscribing generally the "use" of a mobile phone while driving, while also clearly distinguishing between the modes of their use. But the word "use" being formative, it was dependent on the noun "mobile phone".
3. Thus even if the road rules intended to encompass the use Ms Eseque had made of her phone while driving, the words used in the rules had not achieved that aim. To advance this submission reliance was placed on the Queensland road rules which were in similar terms to the NSW rules when Gallaher was decided. They were later amended to include a new definition of "mobile phone" which provided: (5) In this section - mobile phone - (a) includes a mobile phone - (i) whose telephone function is not capable of being used; or Example for subparagraph (i) - a mobile phone whose telephone function is not capable of being used because the phone does not have a SIM card or other means of connecting to a cellular radio system (ii) that is being used for a function other than its telephone function; but Example for subparagraph (ii) - a smartphone being used as a music player or camera (b) does not include a CB radio or any other two-way radio.
4. It was also contended that if the Parliament wished the road rules to operate in the way for which the Director contended, it was necessary for the NSW rules also to be amended in a similar way.
5. That was disputed, the Director contending that Gallaher had been wrongly decided and could not be followed in this State.

The proper construction of the legislation

1. I am satisfied that the approach urged for Ms Eseque cannot be accepted and that his Honour did fall into legal error in reaching his conclusions about the proper construction of the rules. That the Queensland road rules have been amended, is irrelevant to the proper construction of the NSW rules.
2. In arriving at his conclusions Donnelly LCM made reference to a definition of mobile phone in s 253F of the Crimes (Administration of Sentences) Act 1999 (NSW). But this definition is also irrelevant to the proper construction of the road rules, which define the term differently. Their construction must have regard to the words there used, as well as to the objects specified in r 3.
3. They are to consolidate in a single instrument the road rules applicable in the State; to provide for road rules based on the Australian Road Rules so as to ensure that the road rules applicable here are substantially uniform with road rules applicable elsewhere in Australia; and to provide for other road rules not otherwise dealt with in the Australian Road Rules.
4. That these objects are ultimately concerned with safety can be gleaned from the objects of the Road Transport Act 2013 (NSW), under which the rules are made. They include consolidating existing statutory provisions concerning road users, road transport and the improvement of road safety and providing systems for the improvement of road safety: s 3. It is that legislative scheme which establishes the State's driver licensing system, including demerit points which may result in licence suspension or loss, when driving offences are committed.
5. The Act also refers to mobile phones in various of its provisions, but the term is not there defined.
6. As the principles require, the construction of the rules must begin with the text of the rules in question. Rule 300-1(1) provides that: The driver of a motor vehicle (except an emergency vehicle or police vehicle) who is the holder of a learner licence or a provisional P1 or P2 licence must not use a mobile phone, whether or not held by the driver, while the motor vehicle is moving or is stationary but not parked.
7. On its face what is thereby proscribed is any use, whatsoever, of a mobile phone by such a driver, in the specified circumstances.
8. That is supported by r 300-1(2), which provides that the words "held, mobile phone and use" all have the same meanings as in rule 300. That rule does not apply to the holders of a learner licence or a provisional P1 or P2 licence, but permits the use of some functions of a mobile phone by other drivers, in specified circumstances. It 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, unless - (a) the phone is being used to make or receive an audio phone call or to perform an audio playing function and the body of the phone - (i) is secured in a mounting affixed to the vehicle while being so used, or (ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone, or (b) the phone is functioning as a visual display unit that is being used as a driver's aid and the phone is secured in a mounting affixed to the vehicle, or (c) the vehicle is an emergency vehicle or a police vehicle, or (d) the driver is exempt from this rule under another law of this jurisdiction. Maximum penalty - 20 penalty units.
9. Examples of driver's aids are given, including "Navigational or intelligent highway and vehicle system equipment". This is the use to which Ms Eseque was putting her phone. It is in r 300(2), that securing a mobile phone in a mounting affixed to the vehicle is further regulated.
10. The term "mobile phone" is defined in r 300(4) by exclusion of "a CB radio or any other two-way radio". It must be understood in the context of the definitions of both "use" and "held". The former is there defined "in relation to a mobile phone, includes any of the following actions by a driver - (a) holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle, (b) entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone, (c) turning the phone on or off, (d) operating any other function of the phone.
11. "Held" is there defined to include "held by, or resting on, any part of the driver's body, but does not include held in a pocket of the driver's clothing or in a pouch worn by the driver".
12. It can immediately be seen from r 300 that it intends to regulate more than the use of a mobile phone as a device which can send and receive telephone calls. This is reinforced by r 300(1-1) which provides exceptions to r 300(1), providing that it does not apply if: (a) the vehicle is stationary in a road related area, and (b) the phone - (i) is functioning as a payment device to enable the driver to pay for goods or services that are required to be paid for in the road related area, or (ii) is being used to display an electronic coupon, voucher, card or similar article that requires the body of the phone to be held in close proximity to another device located in the road related area in order for the article to be used or redeemed, or (iii) is being used as an electronic device that enables the driver to enter another road related area or land adjacent to the road related area.
13. Further exceptions appear in r 300(3), which provides: (3) For the purposes of this rule, a driver does not use a phone to receive a text message, video message, email or similar communication if - (a) the communication is received automatically by the phone, and (b) on and after receipt, the communication itself (rather than any indication that the communication has been received) does not become automatically visible on the screen of the phone.
14. It is in light of these provisions that what is intended to be encompassed by the term "mobile phone" must be ascertained. It is pertinent that a requirement for cellular connectivity is not one imposed by the rules.
15. Given this regulatory approach, I am satisfied that the meaning of the term "mobile phone" as it is used in r 300 does not depend on the dictionary definitions on which the case advanced for Ms Eseque depended. The Macquarie Dictionary definition of that word term being "a portable cellular telephone" and that of a telephone being "a system or process for the transmission of sound or speech converted into electrical or radio signals to a distant point" and "an electrical device consisting of a microphone and a receiver with a handset, used to connect to this system."
16. Contrary to the case advanced for Ms Eseque, the verbs variously used in the definitions in r 300 do not advance the confined construction urged. Nor do they evince an intention that "absent a communicative ability", a mobile phone is no longer a mobile phone for the purpose of r 300, as was also submitted.
17. A communicative capacity is not required in order for a user to look at everything that can be displayed on such a phone, as the rules recognise. That is why looking at a phone is there regulated as it is and not only while driving. It is also apparent on the face of the rule that its regulation is not intended to be confined to times when the phone is capable of sending or receiving data or making or receiving calls, let alone when it has cellular connectivity.
18. To the contrary, rule 300 recognises that a mobile phone is a portable device on which numerous things can be displayed and which has a variety of functions. Their lawful use to look at what can be displayed on them is expressly confined to "when the phone is functioning as a visual display unit that is being used as a driver's aid and the phone is secured in a mounting affixed to the vehicle": r 300(1)(b).
19. It is apparent from its text that r 300 recognises that a mobile phone can have functions other than making and receiving audio calls and data, the use of which it also regulates. It follows that approaching the meaning of the term in the way explained in Project Blue Sky, does not permit it to be constrained in the way for which Ms Eseque contended.
20. That is because the way that the term is used in r 300 is reflective of its ordinary meaning, of which I am satisfied judicial notice must be taken, in the way explained in Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153. The guiding principle is that "wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court 'notices' it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt": as recently discussed in Amante v R [2020] NSWCCA 34 at [66].
21. There was no issue that mobile phones have been in use in Australian society now for decades. Or that technology has advanced significantly over that time, with the result that these devices have become increasingly more powerful and have offered users ever more functions.
22. The result has been that they are now no longer merely handheld, portable devices which allow users to make and receive audio phone calls when they have cellular connectivity. They also permit text messages and other data to be sent and received when they have such connectivity and contain other functions, such as calculators, clocks, calendars and note taking functions, which do not require such connectivity.
23. Mobile phones, commonly referred to as "smart phones", now also contain powerful computers. It is commonplace for such mobile phones to be able to connect to Wi- Fi, so that audio calls and text messages can be made, sent or received around the world, in the latter case including by email, even when the phone does not have cellular connectivity. They can also now be used to make and receive audio visual calls.
24. Such mobile phones contain powerful cameras which can also take photos and videos and allow users to edit images and to send them to and receive such images from others. These phones can also be used to access social media, make searches on the internet and read books, newspapers and other publications. They allow users to access an ever-increasing array of apps, some freely and others commercially available, which can be downloaded into the phone and then utilised. Computer games are but one example. Maps and navigation tools are another.
25. I am satisfied that the ordinary meaning of the term mobile phone now encompasses a device which has these capacities and that the purpose of the road rules whose construction is here in issue, is to regulate all the uses to which they can be put.
26. Nothing turns on this, but it should be noted that Ms Eseque's evidence was consistent with this conclusion. Not only had she downloaded a map into her phone, which she could access and use as a navigation tool without the phone being connected. She also said that she was using the phone to monitor her speed. That this was not possible without the phone receiving data about the speed she was driving at from moment to moment, is consistent with her Google search. It indicated that the phone contained a built in GPS receiver which was capable of tracking her location without cellular service. Presumably, it also enabled the phone to access data about the speed at which she was driving, which was also displayed on its screen, so that she was able to look at her speed there, as she drove.
27. This appeal turns on the proper construction of r 300-1. That turns on r 300 which I am satisfied uses the term "mobile phone" with its ordinary meaning, which is as I have discussed. I am also satisfied that given the language there used, the obvious purpose of all that is there regulated, viewed as a whole in the context of these road rules, intended as they plainly are to regulate driving in this State with safety in mind, that the case advanced for the Director must be accepted.
28. It follows that these rules do not require the prosecution to prove beyond reasonable doubt that at the time of the offence, the mobile phone Ms Eseque was using had a cellular connection.
29. Even if the term "mobile phone" were defined in the way for which Ms Eseque contended, that would not follow. That is because a device designed and manufactured to operate as a mobile phone, does not only become one, when it has cellular connection.
30. In order for a particular mobile phone to be used to make audio calls, it may still require a SIM card to be installed. But loss of the resulting cellular connection can result from a network failure, the phone moving out of range of service coverage, or as the result of removal of the SIM card. In some parts of the State a mobile phone being transported in a car can go in and out of such range, but the mobile phone may still be able to connect to the 000 network.
31. But many mobile phones do not require a SIM card for users to access its audio call functions, because such functions can be accessed with a Wi-Fi connection.
32. It follows that it cannot sensibly be concluded that a mobile phone only becomes one, when a SIM card is placed into it and ceases being one, whenever such a card is removed. A particular phone may not be able to be used to make or receive cellular calls, without a SIM card, but that won't preclude use of other of its other functions and will not have the result that it is not a mobile phone. That is what it was designed and manufactured to be.
33. It thus cannot be sensibly accepted, as was urged "that a device that does not have a SIM regardless of cellular service range, is presumed to always be incapable of receiving or sending telecommunications". The rules contain no such presumption and that submission flies in the face of the text of the rules themselves.
34. Such connection is not what the road rules depend on. On their face they are concerned with all the uses that a mobile phone has the capacity to be put. They regulate such use in the various ways r 300 and r 300-1 do and do not permit. That regulation is reflective of the ordinary meaning of the term mobile phone, that technology having advanced as it has.
35. It follows that contrary to the case advanced for Ms Eseque, she not having a SIM card in her mobile phone while she used it as a navigation device, did not have the result that it was not a mobile phone, the use of which was regulated by the road rules. Nor did the road rules require the prosecution to prove beyond reasonable doubt that her phone had cellular connectivity, at the time of her alleged offence.
36. The approach she urged to the construction of r 300-1, given its regulatory context, is not available, given what the undisputed principles of construction require and what their application to this rule must necessarily result in.
37. Namely, that the meaning of the term "mobile phone" must be gleaned from the specific provisions made in r 300, not from the dictionary definitions relied on: r 300-1(2).
38. It follows that Donnelly LCM erred in concluding that it was necessary for the prosecution to prove that Ms Eseque's mobile phone had cellular connectivity at the time of the commission of the alleged offence.
39. This is supported by what was concluded in Chandler v Transport for New South Wales [2023] NSWCA 6. It was concerned with prosecutions under r 300, mobile phone use offences being detectable traffic offences under the Road Transport Act: s 135. The term "mobile phone" is not defined in that Act and so also takes its ordinary meaning.
40. Mr Chandler's offence had been detected by a traffic enforcement device which had photographed him holding an object in his left hand, as permitted by s 138(1)(f). His belief was that what he had been photographed holding was mostly likely the phone cover or a note pad, not the phone.
41. It was observed at [22] that the photograph disclosed the size, shape, colour and appearance of the object shown in the photographs and the positioning of the object in Mr Chandler's hand. It was concluded that had permitted the conclusion that the photograph showed, a "classic standard photograph of someone looking at their mobile phone". It was also held at [23] that the photograph provided a sufficient evidentiary basis for the finding, as a matter of inference, that the object was a mobile phone: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356.
42. In Chandler, understandably given the statutory provisions and the rule, there was no suggestion that the Act and the road rules were only concerned with the regulation of a mobile phone which had cellular connectivity at the time it was looked at or held by a driver. Or that a r 300 offence depended on proof that it had such connectivity at that time.
43. What was concluded reflects the rules' prohibition on the use of a mobile phone to look at anything that can be seen on the phone, other than in the case of the exceptions specified in r 300, that not depending on connectivity, as I have explained.
44. While reliance was placed on the conclusions reached about the former Queensland road rules in Gallaher, what his Honour had to determine was this State's regulation of the use of mobile phones, the construction issue being approached in accordance with the principles of construction I have explained.
45. That his Honour was led to the conclusions he reached by what had been decided in Gallaher, cannot lead to the dismissal of the appeal, given that necessary consideration was not given to what the NSW Road Rules actually provided. That is reflective of the functions which mobile phone technology now permits them to offer users, given the powerful computers that they nowadays commonly contain.
46. That could not be overlooked, given the way in which the term "mobile phone" is defined in r 300, as I have explained, the context in which the term is used there and in the legislative scheme and the purpose of this regulatory regime.
47. In the result the appeal must be upheld.

Costs

1. The usual costs orders under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42.1. In this case that is an order that Ms Eseque bear the Director's costs, as agreed or assessed. Unless the parties approach to be heard within 7 days that will be the Court's order.

Orders

1. For these reasons I order: 1. The appeal is upheld. 2. The decision of the Local Court is set aside. 3. The matter is remitted to the Local Court. 4. Unless the parties approach to be heard within 7 days Ms Eseque is to bear the Director's costs, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2023