IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000002 [2013] NZHC 90

BETWEEN	JIN JIN TAN Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	5 February 2013

Appearances: Appellant in Person
M Wilkinson for the Respondent

Judgment:	7 February 2013

RESERVED JUDGMENT OF GODDARD J

This judgment was delivered by me on 7 February 2013 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	Crown Solicitor, PO Box 10-357, Wellington
Copy To:	J J Tan, 21A Tuki Street, Titahi Bay, Porirua

TAN V POLICE HC WN CRI-2013-485-000002 [7 February 2013]

[1]       On 12 December 2012 Mr Tan was found guilty by Justices of the Peace of using a mobile phone whilst driving.

[2]       The appeal is by way of rehearing on the record from the Court below.  It is not a hearing de novo.

Brief facts

[3]       On 22 August 2011, Mr Tan was driving through the Wellington Central business district with his fiancé (now his wife).  He stopped at the traffic lights on the corner of Victoria and Vivian Street and whilst stationery there a police officer (in a marked vehicle) stopped in the left hand lane beside Mr Tan’s vehicle.  Mr Tan, in submissions on appeal before me, disputed that the officer pulled into the left lane beside him and contended that the officer was on his right hand side.  However, the officer gave evidence about his movements at the defended hearing which were accepted by the Justices and I therefore discount Mr Tan’s recollection of their relative positions. In any event they are not of critical relevance as it is not disputed that the officer pulled alongside Mr Tan and followed him.

[4]       The  officer,  Constable  Barnett,  in  his  evidence-in-chief  described  what happened as follows:

On the 22nd  I was driving a marked police patrol car up south on Victoria Street, central Wellington.  I came to the lights at Vivian Street and Victoria, I  stopped at  the  lights and looked to  my  right, I  believe, and I  saw a defendant driving a motor vehicle.  He had both hands off the steering wheel and holding a cellular mobile phone with both his hands pushing the buttons on his mobile phone with both hands.  There was a gap between his car and the one in front.  He proceeded to move his car forward while still holding the mobile phone with both hands and no hands on the steering wheel and he stopped and once the light turned green proceeded to move forward still holding the mobile phone in a hand.   I’d been beside the car, I pulled in behind the defendant’s car, I followed it until a staff [sic] place to stop, I stopped the defendant and spoke to him.  I then issued the defendant a ticket, an infringement notice, for using his mobile phone.

[5]       Subsequently,  under  cross-examination  by  Mr  Tan,  Constable  Barnett confirmed what he had said in his evidence-in-chief, stating:

I saw you holding the hand of your cellphone in both hands, using your thumbs to push the buttons and a clear gap between your hands and the wheel and you proceeded to move forward still during that with no hands on the steering wheel. That’s what I saw at the time.

[6]       In a succinct decision the Justices of the Peace noted that the elements to be proven were that Mr Tan was the driver of a motor vehicle and used a mobile phone. The first element was not in issue and as correctly noted by the Justices, the use of a mobile  phone  is  not  limited  to  making  and  receiving  a  telephone  call  but encompasses using it in any way.

[7]       The Justices were satisfied that Constable Barnett had seen Mr Tan holding his phone and using the buttons and clearly stated this in his evidence on oath.

[8]       In relation to Mr Tan’s defence, that he was simply holding the mobile phone and not using it, the Justices observed that Mr Tan had stated in evidence that he was trying to retrieve an address from his mobile phone and this indicated that he was using his mobile phone.  That may however have misunderstood Mr Tan’s evidence as, whilst he did state that he “tried to retrieve” an address from his mobile phone, he also said that as soon as he pulled out his cellphone his fiancé warned him of a police car behind them so he did not actually use the phone but simply held it in his left hand, with his right hand on the bottom of the steering wheel.  He denied using both hands to hold the phone and denied having used his thumbs to press any buttons on the phone.  His fiancé also gave evidence and said that she had not seen him using his cellphone, including pushing any buttons, at the time they noticed there was a police car behind them.

[9]       In addition to Mr Tan’s assertion that he did not actually use his mobile phone but simply intended to do so and had not in fact pushed any buttons on the phone but was merely holding it in one hand, Mr Tan also questioned whether “using” a mobile phone could include merely holding or having it in a driver’s hands?

[10]     The interpretation of “use” in relation to the ban on use of mobile phones while  driving  under  the  Land  Transport  (Road  User)  Rule  2004  7.3A,  is  not restrictive and includes any use whilst driving.   The Justices of the Peace were cognisant of this.  The difficulty for Mr Tan is that the Justices clearly found that, on

Barnett when the officer pulled alongside Mr Tan’s vehicle.  This finding was open to the Justices on the basis of Constable Barnett’s evidence and clearly involved a finding of credibility over the issue and consequential rejection of Mr Tan’s evidence that:

Q.	... you were stopped –

A.	Yes, yes.

Q.	- at the red light? A.	Yes
Q.	So you had the cellphone in your hand? A.	Yes.
Q.        You had – so you must have had at least one hand off the steering wheel to hold it?

A.        You can always do that, you know, I got cellphone here you can do this.

Q.	Are you saying that that’s what you did?

A.	Yes that’s what I did.

Q.	Okay, so you heard the police officer’s evidence that he saw you
with both hands off the steering wheel, pressing buttons?

A.	Yes.

Q.	And you are saying that that did not happen?

A.        That did not happen.  The closest, the closest that happened maybe I had my hand on the bottom of the wheel but I did not use it because that’s the reason I gave it again and again I know there’s a police car behind me or somewhere along, I didn’t do that.

Conclusion

[11]     In light of the Justices of Peace’s acceptance of Constable Barnett’s evidence and consequential implicit rejection of Mr Tan’s evidence in relation to the critical point of “use” of his cellphone, the appeal must fail.  On the evidence it was open to the Justices to reach the conclusion which they did on the basis of the officer’s direct observation and the circumstance of the phone being in Mr Tan’s hand.

Goddard J