A man fined for using a hand-held device while driving has won a Supreme Court appeal after Chief Justice Ian Kawaley ruled one must be “actively using” that device to be convicted.

Lincoln Raynor-Saldana was fined $400 last July after Senior Magistrate Archibald Warner found him guilty of using a cell phone while driving a car.

The legislation states that it is illegal to use a hand-held device while operating a vehicle but does not include a definition for the word “use”.

As a result, the courts have been using the Oxford Dictionary definition, which includes having a device “available for use”. Mr Warner had found that earphones had been connected to the iPhone, which was affixed to Mr Raynor-Saldana’s waist, and as a result the magistrate was satisfied that the device had been available for use.

During a hearing in the Supreme Court earlier this month, lawyer Eugene Johnson, representing Mr Raynor-Saldana, argued that the legislation was aimed at preventing “active use”, while Victoria Greening, representing the Crown, argued that the legislation was deliberately broad to give the trial judge latitude to determine the facts in specific cases.

In a written judgement, Chief Justice Ian Kawaley upheld the appeal, finding that in order to be using a hand-held device one must be listening to music, playing games, making or receiving phone calls or carrying out some other form of interactive communication involving the transmission or reception of data.

“If Parliament wishes to prohibit merely wearing headphones connected to a hand-held device whilst driving, or merely having a hand-held device available for use whilst driving, Parliament must create such offences using explicit language,” he wrote.

“Particularly in the case of statutes creating offences or having other penal consequences, it is the function of the courts to interpret and apply legislation by ascertaining the presumed intention of the Legislature from the language of the statute.

“It would be encroaching on the proper jurisdiction of the Legislature for the courts to effectively create new statutory offences under the guise of implementing some broad, general and unarticulated policy intent. I accept Mr Johnston’s central thesis that the meaning of ‘using’ cannot, in effect, be shifted by the courts this way, to help fill evidential gaps in the Prosecution’s case.”

Given the circumstances of the case, the Chief Justice ruled that the evidence put before Magistrates’ Court was not enough to prove Mr Raynor-Saldana has been “using” his cell phone while driving.