Mobile Phone Offences & Driving without Proper Control of Vehicle
The NSW Government implemented a significant number of stationary cameras across the State which have been used to identify drivers that are either using their mobile phones or do not have full control of their vehicle.
A common misconception is that these cameras are used only for mobile phone use. However, it can include other distractions such as having an animal sit on the drivers lap, eating meals, and putting on makeup so long as the Prosecution can prove that you did not have proper control of the vehicle.
What are the Penalties?
The penalty for using your mobile phone carries 5 demerit points and a $362 fine and driving without proper control of the vehicle carries 3 demerit points and a fine of $464.
What are the Defences?
The following are the legal defences against a charge of using a mobile phone while driving in NSW:
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Necessity
The accused was using their mobile phone for a necessary purpose, such as to call emergency services or to report a crime.
An examples of how the Necessity defences that may be used in a case involving a charge of using a mobile phone while driving in NSW:
A driver sees a serious accident on the road and calls emergency services on their mobile phone. The driver may be able to argue that they were using their mobile phone for a necessary purpose.
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Duress
The accused was forced to use their mobile phone while driving by the threat of immediate and serious harm to themselves or another person.
For example, driver is forced to use their mobile phone while driving by a passenger who is threatening them with a weapon. The driver may be able to argue that they were acting under duress.
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Automatism
The accused was not in control of their actions at the time of the offence, such as if they were suffering from a medical condition.
For example, a driver suffers a medical condition that causes them to lose consciousness and crash their car. The driver may be able to argue that they were acting in automatism.
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Honest & Reasonable Mistake
The accused believed that they were allowed to use their mobile phone in the circumstances, such as if they were using a hands-free device.
For example, A driver is using a hands-free device to talk on their mobile phone. The driver may be able to argue that they believed that they were allowed to use their mobile phone in the circumstances.
It is important to note that the prosecution has the burden of proof to prove that the accused is guilty of the offence beyond a reasonable doubt. If the accused raises a defence that casts a reasonable doubt on their guilt, then the accused must be acquitted.
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