It is an offence to drive, use, or interfere with a motor vehicle, without first obtaining the consent of the owner of the vehicle.

Reference to 'use' means that if you are a passenger in a vehicle and you know the driver is driving it without the consent of the owner, you may be guilty of this offence: Ramsey v Samuels (1975) 14 SASR 77. 

This offence in contained in section 86A of the Criminal Law Consolidation Act 1935 (SA)

Our criminal lawyers at Caldicott Lawyers are experts in all driving matters and specifically illegal use of a motor vehicle. 

The maximum penalty for a first offence of illegal use of a motor vehicle is 2 years imprisonment.

However, if you have previously committed this offence, there is a minimum period of 3 months imprisonment, and a maximum period of 4 years imprisonment.

You will also be disqualified from holding a driver’s licence for 1 year.

Deciding whether or not to plead guilty to an offence of illegal use of a motor vehicle has important implications and should be made after proper discussions with a criminal lawyer.

If you do decide to plead guilty we can assist you to get the best result possible.

Our team of specialist criminal lawyers have extensive criminal law experience and know the best way to present your case before each of the Magistrates in the State. The results they obtain speak for themselves.

Call 08 8120 3783 to make an appointment with one of the knowledgeable lawyers at Caldicott Lawyers for assistance with your driving matter.

You weren’t driving

In some cases the wrong person is charged with an offence. There are a variety of ways in which this can occur. It may be that there was an administrative error on the prosecution’s behalf or perhaps the offender was carrying your identification which they presented to police. It is a complete defence to this charge if it can be shown that you were not driving the vehicle.

You had the consent of the owner

If you had the consent of the owner of the vehicle or you genuinely and reasonably believed that you had the owner’s consent, you may have a defence to this charge.

You did not interfere with the vehicle

There may be some dispute as to the facts surrounding this charge insofar as you did not drive, use or interfere with the vehicle. Presenting evidence to support this claim may offer a defence to this charge.


It is a complete defence to this charge of illegal use of a motor vehicle if we can show that you were acting under duress. That is, you were acting as a result of violence or some other threat against you. The Court will need to be presented with evidence that indicates that you were coerced into the act by a third party, effectively rendering you an instrument of someone else’s criminal conduct.


The common law defence of necessity operates where the circumstances at hand (natural or human threats) require you to break the law in order to avoid even more dire consequences. Therefore, there is some overlap with the defence of duress. It will need to be shown that you believed on reasonable grounds that you were placed in a situation of imminent peril. You may have a medical justification or it may be the case that you were acting in the course of protecting yourself or someone else.

Essentially, the Court will need to weigh up the act you have committed against the harm you would have experienced had you not acted in that manner. Further, the Court will need to be convinced that the act was proportionate to the potential harm.

Mental Impairment

The law recognises that in some cases people will not be capable of evaluating the nature and quality of their conduct or more categorically, they will not know what they are doing is wrong. If it can be shown that you were suffering from some sort of mental disease, disorder or disturbance, as distinguished from a mere lack of self-control or impulsiveness, then you may have a defence to this charge.

Mental impairments may be either permanent or non-permanent and may include disorders such as:

  • Schizophrenia
  • Hyperglycaemia
  • Psychomotor epilepsy
  • Cerebral arteriosclerosis

No Conviction

In the event that you are found guilty of an offence, section 16 of the Criminal Law (Sentencing) Act 1988 provides for the imposition of a penalty without a conviction being recorded.

In order to achieve this result, we will need to convince the court that you are unlikely to reoffend and that there exists some other good reason (e.g. young age, good working background) for not recording the conviction.

Suspended Sentence

If you find yourself in the unfavourable position of not only having been found guilty of an offence but also having been sentenced to a term of imprisonment, we may be able to obtain a suspended sentence on your behalf under section 38 of the Criminal Law (Sentencing) Act 1988. If you receive a suspended sentence, you will be required to enter into a good behaviour bond and to comply with any other conditions the court sees fit to impose.

The Prosecution must prove that:

  1. you drove, used or interfered with a motor vehicle; and
  2. you did not have consent to do so.

This is a summary offence and will be dealt with in the Magistrates Court of South Australia.

Come and see the helpful team at Caldicott Lawyers for assistance with your driving matter.