The following case study demonstrates what can happen if you are caught driving with a suspended licence.


What happened to our client driving while suspended

The client was charged with suspended driving. He had previously been on a good behaviour licence due to an accumulation of demerit points.  On the first day into his good behaviour licence he committed a further traffic offence.  Having paid the fine for that traffic offence he did not turn his mind as to whether that was in breach of his good behaviour bond.  The RMS (Roads and Maritime Services – formerly RTA) purported to have sent him a letter notifying him of his suspension however the client never received that notice.

In the intervening time between his suspension and being charged with drive whilst suspended, the client had two separate encounters with police where he was pulled over and asked whether he was driving while suspended.  The client told both police officers that he was on a good behaviour licence at which point the police officers made further checks and told him that that was correct and the client was free to continue driving.

The client attended an RMS office to witness another person’s identity card and again the officer from the RMS questioned the validity of his licence.  When the officer was told that he was on a good behaviour bond and the officer checked the system and confirmed with the client that he was on a good behaviour bond.

Some time after that and just days before the suspension was due to end the client was pulled over by a police officer and questioned about whether he was driving on a suspended licence.  The client once again explained that he was on a good behaviour bond and that police officer checked his on-board computer and informed the client that he had to do a further investigation as he believed he may be driving on a suspended licence.

Later that evening the police officer contacted the client and informed him that he would be charged with drive whilst suspended.

Further adding to the confusion the client went on-line to RMS to check the status of his licence where it indicated that his last known offence was approximately one year before the offence that had breached his good behaviour licence.


Subjective circumstances

Our client was a sole bread winner in his family and worked as an electrician who required his licence in order to be able to make a living and support his family.


Potential penalties

Our client was charged with drive whilst suspended under s.25A(2)(a) of the Road Transport (Driver Licensing) Act 1988 (NSW).  The maximum penalty is a fine of $3,300 or imprisonment for 18 months.  There is an automatic disqualification period for a period of 12 months.


Local Court proceedings

At the Local Court the traffic lawyer ran a defence of honest and reasonable mistake of fact.  The defence of honest and reasonable mistake of fact applies only in circumstances where if the client believed the facts to be true, then they would have been guilty of no offence.  See El Hassan –v- NSW Director of Public Prosecutions [2000] NSWCA 330.

This defence has three elements:

(1) the mistake must be an honest one;

(2)  the belief forming the basis of that mistake must have been a reasonable belief to be have held in the circumstances;  and

(3) the mistake must be one relating to fact and not law.

The difficulty in this case was that the client knew that he had received a penalty notice after his good behaviour licence had commenced however he had not turned his mind as to whether that did in fact breach his good behaviour bond.  There was a further issue that s.76 of the Interpretation Act 1987 (NSW) which states that where relevant provisions are complied with, service of correspondence is taken to have occurred unless the contrary can be proved.  Our traffic defence lawyer had successfully argued that the leading case of Coughlan –v- Curran(2008) QDC 66 which held that a belief of non-delivery is a mistake of law does not have the same affect in New South Wales due to the fact that the defence of mistake of fact in Queensland is a statutory one.

The traffic defence solicitor successfully argued that the encounters with the two police officers and the officer from the RMS formed the basis for our client forming a reasonable belief that he was not suspended.  She further argued that even in the final encounter with the police officer where he was eventually charged there was still confusion at that late date.  Adding to that was the on-line records that did not correctly reflect the true position of our client’s licence status.  The police prosecutors could not negative the possibility that the client held an honest and reasonable mistake of fact beyond or reasonable doubt and our client was found not guilty.

This was an excellent result given that in the defence of honest and reasonable mistake it is usually quite an easy task to provide evidence of an honest mistake however there is often a difficulty in proving that it was reasonable.


How can we help you?

Drive whilst suspended is a serious charge that can result in imprisonment or automatic loss of licence for a significant period of time.

In order to obtain a great result you will need to engage a skilled traffic lawyer that has excellent knowledge of the law relating to such matters including preparation and advocacy skills.  Nyman Gibson Miralis can help you achieve the best result possible.

Contact us if you require assistance.