A Queensland man has beaten a charge of using a mobile phone while driving after successfully arguing in court that the device in question wasn’t actually a mobile phone.
And the ruling in the Southport Magistrates Court last week may force the state government to change its legislation designed to stamp out distracted driving.
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Konrad Gordon Gallaher went to court to fight the charge by the transport department after being photographed by traffic cameras holding an electronic device while driving.
He gave evidence that the device he was handling was actually an Apple iPod music player, highlighting the fact that his actual phone could be seen mounted on the dashboard in the photo.
He also showed the iPod in question to the court and said it had “no phone functionality”.
Magistrate Dzenita Balic accepted his evidence, also clarifying it was up to the prosecution to prove beyond reasonable doubt that the device Gallaher was using was a mobile phone.
Balic also noted that the relevant legislation explicitly refers to drivers not using a mobile phone, rather than any other device.
“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,” she said in her verdict delivered on Friday.
“(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.”
Queensland Transport Minister Mark Bailey described Balic’s ruling as “unusual”.
“Clearly the driver was still distracted, which is the intent of the legislation,” he told 7NEWS.
“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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