A NSW P-plater has lost a court battle over using a mobile phone as a GPS without being connected to a phone network.
The driver, Chiqui Eseque, was pulled over by police in May 2022 for driving without headlights when officers noticed she had a mobile phone mounted on a hands-free holder with a map on the screen, according to court documents.
Under NSW laws, learner and P-plate drivers are prohibited from using a phone while driving.
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However, an issue arose over whether the driver was using the device as a “mobile phone”.
The matter first appeared in local court in April, when the driver argued she was using the phone solely as a navigation device and had a separate mobile phone in her bag for making calls.
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She was found not guilty since the device did not have a SIM card and therefore couldn’t make calls or connect to the internet.
“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,” Magistrate Hugh Donnelly said.
“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.
“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.”
However, the matter ended up in front of the Supreme Court this month after the Office of the Director of Public Prosecutions appealed the decision.
Justice Monica Schmidt upheld the appeal, ruling the device was still a mobile phone as phones can make calls without SIM cards.
“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,” she said.
“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 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.
“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 initial decision of the local court was set aside and the matter was remitted to the local court.
The driver was ordered to pay the DPP’s costs.