Man beats mobile phone driving charge in “unusual” ruling
A Queensland man has had his charge of using a mobile phone successfully overturned in court - but the ruling could see state legislation changed to close any existing “loophole” that exists.
Konrad Gordon Gallaher appeared in the Southport Magistrates Court last week to fight the charge from the transport department after he was photographed holding an electronic device while driving by traffic cameras.
Mr Gallaher provided evidence that he was actually handling an Apple iPod, highlighting the fact that his mobile phone could be seen mounted on the dashboard in the photo.
Showing the device in question to the court, he said it had “no phone functionality”.
His evidence was accepted by magistrate Dzenita Balic, who also clarified that it was up to the prosecution to prove beyond unreasonable doubt that Mr Gallaher was using a mobile phone.
While she found that the device in question was actually an iPhone, Mr Gallaher had testified that the device didn’t have a SIM card and was unable to make calls.
“I could not find, and I do not, that he was dishonest in his description of the device as a portable music player,” she said in her verdict delivered on Friday.
“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.
“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.
“(But) a mobile phone therefore must take on its natural meaning. It is a device capable of communication.
“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.”
In Queensland, rules about driver distractions are under the Transport Operations (Road Use Management-Road Rules) Regulation 2009, which states that it’s an offence for a person to hold a phone or rest it on any part of their body while the car is moving or stationary but not parked outside of limited circumstances, such as using it to pay in a drive-through or to provide their digital documents to police.
These laws specifically refer to mobile phones rather than any kind of electronic device.
Queensland Transport Minister Mark Bailey told 7News that Balic’s ruling was “unusual” and that he would be seeking advice on the matter.
“Clearly the driver was still distracted, which is the intent of the legislation,” he said.
“So I’ll be getting advice on this matter.
“If there is any loophole that exists, we’ll be seeking to close it.”
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