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In South Australia, it is mandatory for every driver to possess a driving licence. This is because a driver's licence can help prevent an unqualified person from getting behind the wheel, consequently putting themselves and other road users in danger.
To this end, the state of South Australia has put some laws and penalties in place regarding having a driver's licence. This legislation is evident in the Motor Vehicles Act 1959 (SA).
This write-up will discuss what the law says regarding driving while unlicensed, its penalties, and possible defences to the allegation.
If an individual is convicted in a South Australian court for a driving unlicensed offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check in SA.
According to Section 74 of the Motor Vehicles Act 1959 (SA), driving while unlicensed is an offence with different categories. These categories can determine the penalty that the court will give an offender.
Here are the categories:
#1. Previously Authorised to Drive
According to Section 74(1) of the Motor Vehicles Act 1959 (SA), it is a crime for an individual who has had authorisation in the past but no longer has permission to operate a particular class of vehicle. The individual might have received authorisation in the past under the laws of South Australia or another State.
The offence of operating a vehicle with an expired licence comes with the maximum penalty of a $1250 fine.
#2. Completely Having No Authorisation
Based on Section 74(1) of the Motor Vehicles Act 1959 (SA), anyone who operates a vehicle of a particular class on the road without ever possessing authorisation (in SA or the other Australian States) is guilty of a crime.
Under this section, the maximum punishment for this offence is a fine of $2500 or 1-year imprisonment.
#3. No Authorisation to Drive as a Consequence of a Drink Driving Offence
Section 74(2a) of the Motor Vehicles Act 1959 (SA) states that it is an offence for an individual to drive a vehicle of a particular class on the road after disqualification from holding a licence as a result of a serious drink driving offence. An offender under this section may have to pay a $5,000 fine or face 1-year imprisonment.
#4. No Authorisation to Drive as a Result of a Drug Driving Offence
Under Section 74(2ac) of the Motor Vehicles Act 1959 (SA), a person commits an offence that is punishable by a maximum of $5000 fine or 1-year imprisonment when:
There are several defences that a person can claim when facing an allegation for driving while unlicensed. If the defendant can properly prove their defence, this may result in the court acquitting the defendant.
Some of the defences an individual can raise to counter the allegation of driving while unlicensed include:
#1. The Accused Did Not Operate a Motor Vehicle
In a situation where the accused did not operate the vehicle at the time of the incident, this defence will be suitable. In this scenario, the prosecution might have mistaken the suspect's identity. However, the accused must have all it takes to convince the court that they did not drive the motor vehicle.
#2. The Accused Was Not Driving on the Road
The law makes it clear that for the court to convict a person for the crime of driving while unlicensed, they must have driven a motor vehicle on the road. If the defendant can show that they did not operate a motor vehicle on the road, they can easily use this defence.
#3. Mistake of Fact
Mistake of fact only applies if the defendant made the mistake of thinking that their driver's licence is still valid. Nonetheless, successfully raising this defence requires that the accused show the court that any reasonable person in their position could have made the same mistake.
#4. A Relevant Interstate licence
There are times when a person might not have a South Australian licence but an interstate licence. If such a person faces charges for driving without authorisation, simply proving that they have a valid interstate licence can lead to the court dismissing the case.
#5. Coercion or Duress
A defendant can only claim this defence if they did not commit the crime of driving without authorisation of their own free will but due to a threat. This threat could involve the use of violence.
When the accused raises this defence, the court will expect the defendant to show evidence that they received a threat from a third party. Also, the court will require them to prove that their action was a reasonable response to the threat perceived.
In a proceeding for driving without a licence, raising the defence of necessity means that the defendant committed the crime to prevent a terrible occurrence. For instance, a person might have committed the crime of driving without a licence to help a person get immediate medical attention.
In many cases, when the defendant raises the defence of necessity, the court will try to determine if the response of the accused to the situation was not an overreaction.
#7. Poor Mental State
The defence of poor mental state applies when the defendant committed the crime due to not being in the right frame of mind. The reasons why a person can be in a poor mental state include mental illnesses or the use of intoxicating substances.
In South Australia, the Magistrates Court handles most of the trials regarding driving without authorisation.
There are several defences that a person can use against the allegation of driving without authorisation. However, it takes someone who has a good grasp of the law to argue most of the defences during a proceeding successfully. As such, getting legal assistance when facing charges for driving without a licence cannot be overemphasised, as this can help a person get the best result possible.
If an individual is found guilty of a driving unlicensed offence in a SA court, the offence will show up as a disclosable court outcome (DCO) on the results of their police record check.
Individuals can obtain a nationally coordinated criminal history check via the Australian National Character Check - ANCC® website.
Motor Vehicles Act 1959 (SA) - https://www.legislation.sa.gov.au/lz?path=%2Fc%2Fa%2Fmotor%20vehicles%20act%201959
Legal Services Commission South Australia (Driving without a licence) - https://lawhandbook.sa.gov.au/ch12s08s05s08.php
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