Drive While Suspended

by Jonathon Taylor

Drive while Suspended is a serious offence in the state of New South Wales. If found guilty, the automatic period of disqualification is 12 months. This is obviously a lengthy period of time of the road and can have a very significant impact on an individual’s work and personal life. Indeed in many cases it would almost inevitably mean the loss of a job with all that entails.

It is, however, possible to defeat a charge pf Drive While Suspended by asserting an “Honest and Reasonable Mistake of Fact” as to the validity of your drivers licence. Here we will provide a brief summary of this area of the law and will explain when the defence applies and the distinction between a question of law and a question of fact.

Ignorance of the Law

There is an ancient legal maxim that says “ignorance of the law is no defence”. This means that everyone is presumed to know the law and there is no point in a defendant saying he didn’t know certain conduct was a defence.

For many years a claim of Honest and Reasonable Mistake of Fact was met with an assertion from the prosecution that the validity of your drivers licence is a question of law. It would then follow that a mistaken belief as to its validity would be a mistake of law and the maxim would apply.

However, the Supreme Court of NSW determined in El Hassan v DPP (2000) NSWCA 330 that the validity of a drivers licence is a question of fact rather than law and the “Honest and Reasonable Mistake of Fact” defence is available specifically for Drive While Suspended or Disqualified and also for OFFENCES of strict liability in general

Mistake of Fact or Mistake of Law

Courts distinguish between questions of law and questions of fact. The law applies to everyone but a fact, for these purposes, is something that relates only to a particular person or group of people.

The law requires all drivers to have a valid drivers licence and there is no point in a defendant claiming he was unaware of this. However, the validity of the defendant’s drivers licence at a particular point of time is a question of fact only to the defendant.

The defendant does not claim he didn’t realise he was required to have a valid drivers licence. This would be a mistake of law. Rather, he claims a mistaken belief as to the validity of his drivers licence on a particular day.

Circumstances Where the Defence Applies

There are many circumstances where this defence can apply. Often a defendant will say that that they didn’t receive a letter from the Roads and Maritime Services advising of the suspension. The RMS have only to prove that they sent the letter to the address on the driver licence register. It is up to very driver to ensure their details are up to date. So simply moving house isn’t good enough. The defendant would normally have to produce evidence to show that the mail was stolen, they were living somewhere else temporarily or the letter was confusing in some way.

Another common situation where the defence applies occurs when the defendant has set up a payment plan with the State Debt Recovery Office (SDRO). If someone’s drivers licence is suspended for unpaid fines, the suspension will be lifted when the fine is paid or when the driver sets up a payment plan. Defendants with multiple fines often pay some but not all the fines. It only takes one outstanding fine to lead to a suspension. Another common situation is that a defendant sets up a payment plan but then incurs an additional fine which is not covered by the existing payment plan

Drivers should be aware that every call to the SDRO is noted on their computers system.


Drivers charged with “Drive While Suspended” or “Drive While Disqualified” should be aware that they do not automatically have to plead guilty to these charges, and that defences may be applicable, including the defence of “Honest and Reasonable Mistake of Fact”. A lawyer representing a client facing these charges should thoroughly investigate any possible defences because the potential penalties facing the client in these situation are very steep and potentially life changing.


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