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For most criminal offences that are not of strict or absolute liability, the prosecution needs to prove:

  1. You committed an act or behaved in a particular way (actus reus); and

  2. You had the intention of committing the crime, either deliberately or recklessly (mens rea); and

  3. Your actions were voluntary.


There are some offences that require the accused to have a specific intent to commit the crime and proof of the requisite intent might be defeated of the accused was intoxicated at the time of the offence. If intoxication is successfully raised as a defence, the accused cannot be said to have had the capacity to form specific intent to commit the offence and the prosecution would not be able to prove the accused’s mental intent beyond reasonable doubt.


Offences of specific intent are set out in s 428B of the and are offences “of which an intention to cause a specific result is an element”. Generally intoxication is relevant to whether the accused had the necessary specific intention at the time when the act was committed giving rise to the offence: s 428C.


If you are charged with a criminal offence alleged to have occurred while you were under the influence of drugs or alcohol, it is important that you seek legal advice to determine whether you have the defence of intoxication available to you. Should you wish to discuss your options please contact KF Lawyers to arrange for a free initial consultation.

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