Traffic Lawyers for Using a Mobile Phone While Driving in NSW

Rule 300(1) of the Road Rules 2014 (NSW) makes it an offence for a fully licensed driver of a vehicle to use a mobile phone while the vehicle is moving, or stationary but not parked, unless:

(a) The phone is being used to make or receive an audio phone call or perform an audio playing function, and the body of the phone:

(i) Is secured in a mounting that is affixed to the vehicle while being used, or

(ii) Is not secured in such a mounting and is not being held by the driver, and the driver does not at any time press any thing on the body of the phone or otherwise manipulate any part of the phone while using it, or

(b) The phone is functioning as a visual display unit that is being used as a driver’s aid and is secured in a in a mounting that is affixed to the vehicle, or

(c) The vehicle is a police or emergency vehicle, or

(d) The driver is exempt from these rules under a New South Wales law.

Additional exceptions to the offence

In addition to the outlined exceptions, the offence does not apply if the vehicle is stationary in a road related area and the phone:

• Is functioning as a payment device to pay for goods or services in that area,
• Is being used to display an electronic coupon, voucher, card or similar article that requires the phone to be held in close proximity to a payment or redemption device, or
• Is being used as an electronic device to enter the area.

The offence also does not apply where a communication is received by the phone automatically and on or after its receipt, the communication itself – rather than an indication of the communication being received – does not automatically become visible on the screen.

Penalties for the offence

At the time of writing, the penalty notice comes with a fine of $387 and 5 demerits points, or 10 demerit points during double-demerit periods, or the same points and a maximum fine of $2,200 if the matter comes before a court.

Definitions that apply to the offence

The definitions that apply to the terms contained in the offence are as follows:

A ‘road related area’ is an area that divides a road, a footpath or nature strip adjacent to a road, an area that is not a road and is open to the public for cyclists or animals, or used by the public for driving, riding or parking vehicles.

‘Driver’s aids’ include CCTV cameras, dispatch systems, navigational or intelligent highway and vehicle system equipment, rearview screens, ticket issuing machines and vehicle monitoring devices.

To ‘use’ a phone means to enter or place anything into it, other than by the use of voice, or to send or look at anything in the phone, to turn the phone on or off, to operate any other function of the phone, or to hold the body of the phone in the hand except the process of handing the phone to a passenger.

‘Affixed to’ includes forming any part of the vehicle.

‘Body’ of a phone means the part of the phone that contains most of its mechanisms.

‘Audio phone call’ does not include email, text message, video call, video message or other similar communication.

‘Held’ includes held by, or resting on, any part of the body, but does not include in the pocket or pouch worn by the driver.

To ‘park’ includes to stop and allow the vehicle to stay, whether or not the driver leaves the vehicle. A vehicle may be considered as parked for the purposes of the offence even though the key is in the ignition and/or the engine is running.

An ‘emergency vehicle’ is any vehicle driven by an emergency worker such as a member of the Ambulance Service, State Emergency Service, Airservices Australia or approved member of Transport for NSW in the course of that employment.

Rule 300-1(1) of the Road Rules 2014 (NSW) makes it an offence for the holder of a learner or provisional license to use a mobile phone while driving a motor vehicle, whether or not the phone is held, and whether or not the vehicle is moving or stationary, but not if it is parked. 

Exceptions to the offence

The offence does not apply if the vehicle is stationary in a road related area and the phone:

• Is functioning as a payment device to pay for goods or services in that area,
• Is being used to display an electronic coupon, voucher, card or similar article that requires the phone to be held in close proximity to a payment or redemption device, or
• Is being used as an electronic device to enter the area.

Penalties for the offence

At the time of writing, the penalty notice comes with a fine of $387 and 5 demerits points, or 10 demerit points during double-demerit periods, or the same points and a maximum fine of $2,200 if the matter comes before a court.

Definitions that apply to the offence

The definitions that apply to the terms contained in the offence are as follows:

A ‘road related area’ is an area that divides a road, a footpath or nature strip adjacent to a road, an area that is not a road and is open to the public for cyclists or animals, or used by the public for driving, riding or parking vehicles.

To ‘park’ includes to stop and allow the vehicle to stay, whether or not the driver leaves the vehicle. A vehicle may be considered as parked for the purposes of the offence even though the key is in the ignition and/or the engine is running.

General legal defences have developed over generations and apply to all traffic offences unless they are expressly excluded by legislation.

Where a person raises evidence of a general legal defence, the prosecution must then prove beyond reasonable doubt that the defence does not apply.

If the prosecution is unable to do so, the person is entitled to a not guilty verdict.

General legal defences to using a mobile phone while driving include:

Duress 

Duress is where a person or someone close to them is threatened with serious and imminent harm if they refuse to commit the offence.

Mental Health 

Those who were suffering from a mental health and/or cognitive impairment at the time of the alleged offence which resulted in being unaware of the nature and quality of their act, or in not knowing their act was wrong are not criminally responsible for their conduct.

This is colloquially known as the ‘mental illness defence’ and, if made out, means a person must be found not guilty.

Automatism 

The legal defence of automatism applies where a person’s otherwise unlawful conduct was undertaken when he or she was not conscious of the nature of their actions nor exercising a choice to conduct themselves in that manner.

It most often applied to situations of ‘blackouts’ or sleepwalking, and is separate and additional to the defence of mental health or cognitive impairment.

Necessity 

The defence of necessity applies where a person’s otherwise criminal conduct was to avoid serious consequences to the person or another he or she was bound to protect, the person honestly and reasonably believed the consequences would occur and the conduct was not disproportionate the consequences.

Self-defence 

Self-defence is where a person engaged in otherwise unlawful conduct because he or she believed it was necessary to defend themselves or another person, or too prevent the unlawful deprivation of their liberty or that of another person, or protect their property from being taken, destroyed, damaged or interfered with, or to prevent criminal trespass to their land, or remove a person criminally trespassing, and the conduct was a reasonable response in the circumstances as the perceived them.

Honest and reasonable mistake of fact 

This is not a general legal defence as it applies only strict liability offences, which include using a mobile phone or viewing a visual device while driving.

The defence applies where you are able to establish on the balance of probabilities that you were honestly mistaken about a fact essential to proving the offence, and your belief was reasonable in the circumstances.

The defence does not excuse ignorance of the law, but relates to your understanding of the facts of your situation.

The test for whether your mistake was honest relates to your own belief at the time, while the test for whether it was reasonable assesses whether a reasonable person in your situation would have held the same belief.

Whether you are pleading not guilty to using a mobile phone while driving and defending the allegations in court, or pleading guilty and seeking leniency by way of a non-conviction order such as a section 10 dismissal or a reduction in the period of suspension, it is vital to undertake thorough preparations in the lead-up to the court date in order to maximise your prospects of success.

If you are contesting the allegations by way of a not guilty plea and defended hearing, any evidence which may raise reasonable doubt regarding your guilt can be vital in securing an acquittal. This includes your evidence (or testimony in court) as well as any witnesses that were in the vehicle at the time and can verify you were not using your phone, and may also include witnesses through additional evidence such as your phone records or evidence of an exception or legal defence to the offence may be substantiated.

It is important to bear in mind that the onus rests on the prosecution to prove the offence beyond a reasonable doubt, as well as to disprove any legal defences that may be raised on the evidence.

You are entitled to an acquittal – which is a finding of not guilty – if the prosecution is unable to do this.

If you are accepting the allegations and seeking leniency, materials that evidence your acceptance of responsibility, remorse, unlikelihood of engaging in the conduct again, otherwise good character and strong need for a licence can be crucial in enabling your lawyer to persuade the magistrate to exercise leniency.

These materials can include character references, an apology letter, documents that show you need a licence for work or business purposes, and will be considered by the magistrate when the case comes before the court.

Your lawyer will be able to guide and assist you on the preparation of these materials, and ensure your position is presented in a way that gives you the highest likelihood of a positive outcome.

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

1. Proven Track Record of Exceptional Results

   Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

   Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

   Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

   We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

   Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

2. Highest Level of Client Satisfaction

   We have the best and most comprehensive client review record of any law firm in Australia.

   Regular communication, accessibility and quality service are our team’s highest priorities.

   We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

   We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

3. Australia’s Most Awarded Criminal Law Firm
   

   We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

   The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

4. Fixed Fees
   

   We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

   We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

   Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

5. Free First Appointment
   

   For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

   We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

6. Specialist Lawyer Guarantee
   

   We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

   This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

7. All NSW Courts
   

   From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

   And we offer fixed fees for most criminal and traffic law cases throughout the state.

8. Accredited Specialists

   Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

   All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

   An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

   Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

   Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

9. Results-Focused Law Firm
   

   Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

   The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

   Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

   No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

   The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

10. Team of Lawyers Behind You
    

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

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    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

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11. Familiar with Magistrates and Judges
    

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

12. Convenience
    

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Parramatta, opposite the Justice Precinct carpark,
    • Liverpool, and
    • Sutherland.

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.