Bonifacio vs. Dalgreen - (12 Jan 2022)

Driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked

Motor Vehicles

The Appellant was convicted of a contravention of regulation 265(2) in the Magistrates Court. Pursuant to Part 2 Division 2 of the Criminal Appeals Act 2004 (WA), the appellant in this application seeks to appeal against his conviction.

Regulation 265(2) of the Road Traffic Code, 2000 (WA) provides that a driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked. Regulation 265(1) defines 'use' to include holding the phone or operating any function of the phone.

The learned magistrate accepted the evidence as credible, and in particular, found that the police officers' concessions regarding what they had and had not observed increased their credibility and the persuasiveness of their evidence. It was uncontroversial that the appellant had a black iPhone with him in the car. There was no suggestion of there having been any other relevant object in the appellant's car other than an alarm clock.

It is uncontroversial that the learned magistrate rejected the Appellant's version of events that he was holding an alarm clock and not a mobile phone. It is also uncontroversial that the learned magistrate made a number of references to the appellant having been on an Extraordinary drivers licence (EDL).

It was open to the learned magistrate to reject the Appellant's version of events on the basis of the learned magistrate's assessment of the totality of the Appellant's evidence. the learned magistrate's remarks were intended to be generous and exculpatory. There is no error in the learned magistrate's rejection of the appellant's version of events. Application dismissed.

Tags : CONVICTION EVIDENCE LEGALITY