Driving Disqualified Lawyers in Adelaide

Driving Disqualified Lawyers in Adelaide

Driving while disqualified is a criminal offence in South Australia, with recently increased penalties. Disqualified driving is difficult to detect and courts impose severe penalties including imprisonment for first time offenders. Book a free 30 minute consultation.

If you have any previous conviction for driving whilst disqualified or suspended, you face even more severe penalties. The risk of imprisonment increases even further if you engage in contumacious driving, or if the offence was committed in aggravated circumstances.

What is Driving Disqualified?

Under section 91 of the Motor Vehicles Act 1959 (SA), a licence or learner’s permit that is suspended or disqualified has no force or effect. A person must not drive a motor vehicle on a road in South Australia or elsewhere in Australia while disqualified. The legislation states:

1. While a licence or learner’s permit is suspended, it has no force or effect.
2. While a person is disqualified from holding or obtaining a licence or learner’s permit, any licence or permit that person holds or obtains has no force or effect.
3. The Registrar of Motor Vehicles must not issue a licence or permit to a person who remains disqualified.
4. A person must not drive while they are disqualified under the laws of this State or another State or Territory.

Even if you are not “driving disqualified”, you may be charged under section 74 for driving unlicensed if your licence lapsed or was never held.

Driving Disqualified Penalties SA

Will I go to Jail for Driving While Disqualified?

Sections 3 and 9 of the Sentencing Act 2017 (SA) make it clear that the primary sentencing purpose is the protection of the community. When determining a sentence, courts must treat public safety as the paramount consideration.

The rationale is that disqualification orders help ensure obedience to traffic rules and deter dangerous driving behaviour on the roads.

Read our guide if you are asking yourself “Will I Go To Jail For Driving While Disqualified?” or book a free instant 30 minute consultation to speak with a traffic lawyer in Adelaide.

Alcohol & Drug Dependency Disqualification

Section 79B of the Motor Vehicles Act 1959 (SA) focuses on alcohol dependency evaluations. If there is a suspicion that an applicant (who was previously disqualified) is dependent on alcohol, the Registrar must seek an assessment by an approved provider. The applicant may not be issued a new licence until they prove they are no longer dependent on alcohol or, alternatively, agree to a mandatory alcohol interlock scheme licence.

Defence to Driving Disqualified

Defences to driving disqualified may still arise from factual misunderstandings or procedural errors. While not every case will succeed on these grounds, possible defences may include:

1. Not Driving

In Harvey v Police [2009] SASC 302, the accused was seated in the front passenger seat of a moving vehicle. The Court found that his brief involvement in steering did not conclusively prove he was ‘driving’ beyond a reasonable doubt. The Judge reasoned that a person should not be penalised for taking evasive action in an emergency, even if it momentarily appears they are in control of the vehicle.

2. Honest and Reasonable Mistake of Fact

This defence stems from the principle in Proudman v Dayman (1941) 67 CLR 536. If a person has an honest and reasonable belief in facts which, if true, would make the act innocent, they may be excused. However, a mistake of law such as that the disqualification had ceased is not a defence nor is a mistake as to the effect of a court order of disqualification.

In Morcom v Police [2017] SASC 147, this defence was successfully made out because the the defendant was told by Service SA that the licence was not suspended. The defendant held and honest and reasonable belief they were permitted to drive. This amounted to a mistake of fact.

In Davis v Bates (1986) 43 SASR 149, the Supreme Court confirmed this common law defence is available for charges under section 91(5) of the Motor Vehicles Act 1959 (SA), provided there is a genuinely held, reasonable belief in a state of facts that would render the conduct lawful.

Although Davis v Bates confirms a “Proudman v Dayman” type defence (i.e., an honest and reasonable mistake of fact can excuse the offence), section 91(5) is still classed as a strict liability offence. The prosecution does not have to prove the defendant knew they were disqualified for liability to arise.

Accordingly, a “mistake of law” (for example, believing your disqualification had ended by operation of law) will generally not provide a defence, whereas a mistake of fact (e.g., being wrongly told by Service SA that your licence was valid) may exonerate the accused if it is genuinely held and reasonable in the circumstances.

3. Administrative Issues With Notices of Disqualification or Suspension

Several legislative sections prescribe how disqualification or suspension notices must be issued. If these strict procedures are not followed, the notice (and consequently the disqualification) could be invalid. For example:

Notice of Disqualification From the Registrar of Motor Vehicles

Section 139BD of the Motor Vehicles Act 1959 (SA) sets out how a notice of disqualification must be given. If the notice is not served properly, the disqualification may be unenforceable.

Immediate Loss of Licence issued by SAPOL

Under section 47IAA of the Road Traffic Act 1961 (SA), SA Police (SAPOL) can impose immediate licence disqualifications or suspensions, such as for certain drink driving or drug driving offences. However, strict compliance is required.

In Police v Conway; Police v Parker, the Court highlighted that such immediate disqualifications erode civil liberties, so the process must be followed meticulously. For example, consider where:

• A child provides a their parent’s details to police.
• A suspension notice is issued in the parent’s name but given to the child.
• The police subsequently discover the false details and issue a second notice in the correct name.
• If the first notice remains unaddressed and was never given to the parent, it may be argued that the disqualified was invalid.

Notices from Fines Payment Unit

Section 38 of the Fines Enforcement and Debt Recovery Act 2017 (SA) enables The Chief Recovery Officer to suspend a licence for unpaid fines.

However, the suspension takes effect 14 days from the day the written determination is given to the debtor. If the notice is not provided correctly, a challenge may arise regarding the validity of the disqualification.

What The Court Considers

South Australian courts have repeatedly stated that driving disqualified is serious because it undermines the effectiveness of licence disqualifications and endangers the public.

However, the court still retains discretion to suspend a term of Imprisonment for driving disqualified in exceptional circumstances.

• Police v Nissen underlines that disqualification and suspension orders are crucial mechanisms to ensure road safety. Kourakis CJ stated that people must be left in no doubt about the serious consequences of disregarding disqualification orders. Driving in contravention of these orders is difficult to detect, and strong enforcement acts as a key deterrent.
• In Police v Cadd, the Court stressed that deterrence must predominate in sentencing for disqualified driving. Doyle CJ explained that driving while disqualified must ordinarily attract imprisonment. However, the Court did not rule out alternatives in exceptional cases where strong mitigating circumstances exist (for example, minimal driving distance during an actual emergency).
• Earlier cases such as Eldridge v Bates, reasoned that disqualified drivers who knowingly breach the law display indifference to its requirements, demanding strong punitive measures. General deterrence is considered essential because driving disqualified is difficult to detect.
• In Police v Chilton, Kourakis CJ cautioned against classifying disqualified driving cases too narrowly as ‘contumacious’ or ‘non-contumacious.’ Instead, courts must consider the offender’s attitude and reasons for breaching the disqualification. A repeated offender or one who shows little regard for the order will most likely receive a custodial sentence.
• In Police v Carletti, the Court noted that cases can vary widely, from total disregard of court orders to isolated breaches under desperate personal circumstances – this was referred to as a ‘spectrum of blameworthiness’. Still, the underlying principle remains that disqualification orders are vital for road safety, and breaches must be met with strong enforcement.

The authorities underscore several key sentencing themes:

1. General Deterrence – Courts seek to discourage others from ignoring disqualification orders.
2. Personal Deterrence – A repeat offender may receive a more severe sentence.
3. Public Safety – Disqualification orders aim to reduce the risk posed by drivers who have exhibited unsafe or illegal behaviour.
4. Exceptional Circumstances – While imprisonment is often imposed, the courts may consider factors such as genuine emergencies or an otherwise compelling reason for the breach.

Contumacious Driving While Disqualified

In the context of driving disqualified, “contumacious” is used to describe a deliberate and wilful disregard for the disqualification order and the authority behind it. This goes beyond simply intending to drive; it implies driving with an attitude of outright defiance or indifference toward the ban.

Courts have observed that “contumacy” is an additional element the prosecution must prove beyond reasonable doubt if it is relied upon to seek a harsher sentence (Talbot v Police [2005] SASC 94).

A single act of wilfulness does not necessarily amount to contumacy; there must be “something more”, usually an attitude of defiance or repeated history of disregarding orders.

Conversely, factors such as genuine emergencies, mental health concerns, or honest mistakes of fact can negate a finding of contumacy ((Jackson v Police [1999] SASC 345; Rhodes v Police [1999] SASC 191))

Examples of Contumacious Driving

Police v Cadd

• It means something more than mere intention to drive disqualified which is an essential element of the charge.
• It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it.
• That standard…should be imprisonment in the ordinary case of contumacious offending by a first offender.

Johns v Police 

• If the driving exhibits an attitude of defiance then that would usually amount to contumacy and may call for a sentence of imprisonment.
• To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance.

Bates v Police

• To satisfy the element of defiance required for a contumacious breach of section 95(5) of the Act, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or other situation of duress.

Police v Brookman 

• In Police v Brookman it was submitted that the offending was not contumacious because the driver had a valid reason to drive.
• In that case, the driver attended a hotel in circumstances loosely described as an emergency.
• He was called by surprise in the middle of the night by a friend who had been involved in a disturbance at the local hotel.
• It was submitted that the respondent in driving to help his friend in these circumstances was not contumacious conduct because it was not planned or premeditated and was not merely an act of convenience.
• This Court disagreed and the driver was sentenced to 1 month of imprisonment.

Driving Disqualified Previous Conviction

The timing and nature of the prior offending, is relevant to the exercise of the sentencing discretion. In Veen v The Queen [No 2] (1988) 164 CLR 465 Mason CJ and Brennan, Dawson and Toohey explained:

• The antecedent criminal history is relevant…to show whether the instant offence is an uncharacteristic aberration or whether the… commission of the instant offence is a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 
• What aggravates this type of offence is the reason for, and circumstances of the driving itself, and the nature and extent of the disregard of the law, given that the disqualification itself will invariably have been imposed by a court or competent statutory authority because of some other breaches of the law – learn more about circumstances of aggravation.

Proof of Contumacious Driving

In practice, a common police tactic when stopping a suspected disqualified driver is to ask whether or not the driver knew he or she was disqualified from driving, and their reason for driving despite the disqualification order.

The driver’s response is then relied on to demonstrate a contumacious attitude toward the order of disqualification. Coupled with previous driving history or convictions for driving while disqualified, a previous record may indicate a continuing attitude of disobedience to the law.

This is directly relevant in assessing the gravity of the offence in question. Furthermore, what many motorists do not realise is that there is technically no time limit for what constitutes a subsequent offence – which attracts even higher terms of imprisonment, particularly after the penalty for drive disqualified was increased in recent years.

This means that even an offence committed many years ago, may still result in the imposition of a much longer term of imprisonment. It is therefore crucial to get expert advice from an experienced traffic lawyer in order to mount either a robust defence to the charge or to obtain the best possible outcome by booking a free consultation.

Suspended Sentence or Good Behaviour Bond

In Police v Cadd, it was the respondent’s third time driving while disqualified. Lander J stated at [201]:

• For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing magistrate that good reason exists for suspending the sentence, increase.
• A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence… because a second offence exhibit contumacy.
• That person will also be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence.

The Full Court in Police v Cadd made clear that courts retain a wide sentencing discretion for offences of driving while disqualified. Although imprisonment is often imposed—especially for repeat offenders or contumacious cases—it is not an ironclad “standard” for every breach.

If a court determines that, in all the circumstances (including personal factors), a different sentencing option will adequately serve the statutory purposes (particularly community safety), it may impose a lesser penalty, or even a suspended sentence, provided there is good reason to do so.

However, for subsequent offences or clear defiance of authority, the scope for leniency narrows considerably.

Book a Free 30-Minute Consultation

Every case involves unique facts, and professional guidance can help assess whether any legal defences might apply or whether exceptional personal circumstances exist.

Above all, courts consistently indicate that it is better to respect disqualification orders in the first instance, as failure to do so can result in significant penalties, including lengthy prison terms for repeat or egregious breaches.

If you are charged with driving disqualified, getting early advice from criminal defence lawyers specialising in traffic offences in Adelaide is critical. Click here to get started.