Driver is cleared of cell charge

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  • A person uses a cell phone while driving

    A person uses a cell phone while driving

A “curious” case resulted in Senior Magistrate Archibald Warner acquitting Deborah Smith of charges of using a hand-held device while driving a vehicle.

Ms Smith, a Pembroke resident,was stopped by Police near the Shelly Bay MarketPlace after one officer said he had seen her drive by with a cell phone held to her ear.

Ms Smith admitted she had stopped in the bus lay-by in front of the Hamilton Parish supermarket’s car park to take a telephone call.

But she said she had put the cell phone down before she drove off again, heading towards Hamilton.

She had explained during the trial: “My cell phone is switched on because I have a special child; it’s always on.”

Senior Magistrate Archibald Warner said: “It is a duty of the Crown to prove (the case) beyond a reasonable doubt. The defendant did not have to prove anything.”

Summing up the case, he said the evidence came from two Police officers who were parked in the car park exit of the MarketPlace in Shelly Bay.

One had testified that he had seen that the driver of the vehicle had a cell phone against her ear, but the other testified that he had not seen the cell phone. The second officer also testified that he had received “certain information” from the first officer, and as a result he had stopped Ms Smith’s car.

Calling the case “very curious”, Mr Warner said: “Ms Smith’s evidence is that she pulled over and took the call. On the completion of the call she placed the phone on the seat next to her before moving off.

“And she had seen the Police officer. She knows better than to drive with a hand-held device in her hand past Police officers. Therefor it was not possible for the Police officer to see her with her cellphone in her hand, because had no cellphone in her hand.”

Mr Warner concluded:; “This is a curious case . . . I must remind myself that I must be satisfied so that I feel sure it is my duty to decide who is lying and who isn’t lying. But not withstanding these niceties, I must be satisfied so that I feel sure.”

He said there was no reason to doubt either Police officer’s evidence, and there may have been “101 reasons” why he didn’t see the cell phone. But, “ . . . at the end of the day, the test is, I must go back and look at every element and be satisfied so I feel sure.

“In all the circumstances, I am not satisfied I feel sure,” he said, and acquitted the defendant, who had conducted her own defense.

Ms Smith thanked Mr Warner, saying: “Thank you so much, Your Worship,” before leaving the court.

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Published Nov 20, 2012 at 8:00 am (Updated Nov 20, 2012 at 12:43 am)

Driver is cleared of cell charge

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