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In New South Wales, criminal offences are generally classified as either “strict liability” or “mens rea” offences. While mens rea offences require proof of intent or knowledge, strict liability offences do not.


One of the fundamental principles of common law is that individuals should not be subject to criminal charges for merely committing a physical act (actus reus) without a corresponding “guilty mind” (mens rea). However, certain statutes establish strict or absolute liability for specific physical acts, which means that proving mens rea is not necessary to be found guilty of an offence.

What Is a Strict Liability Offence?

Strict liability offences, also known as “absolute liability” offences, are criminal acts that do not require proof of intent, knowledge, or negligence on the part of the offender.


The prosecution only needs to establish that the accused committed the prohibited act, regardless of whether they intended to do so or were aware of the consequences. Strict liability offences are often regulatory in nature and are commonly associated with minor infractions rather than serious crimes. Mens rea and actus reus are two fundamental concepts in criminal law that relate to the mental element and physical act required to establish criminal liability.


Mens Rea


Mens rea, often referred to as the guilty mind, is the mental state or intention of the offender at the time of committing a crime. It refers to the awareness, knowledge, or intent of the accused to engage in the prohibited conduct or achieve a particular result. Mens rea examines the mental culpability or blameworthiness of the accused and plays a crucial role in determining the degree of criminal liability. Mens rea can vary across a spectrum of mental states, including:


  • The person deliberately and consciously plans to commit the offence.
  • The person is aware that their actions are likely to result in a particular outcome.
  • The person recognises the risk involved but proceeds with the actions regardless.
  • The person fails to exercise reasonable care, resulting in unintended harm.

The presence and level of mens rea are essential elements in establishing criminal intent and differentiating between different degrees of offences including the offence of murder and manslaughter.


Actus Reus


Actus reus refers to the physical act or conduct that constitutes the external element of a crime. It encompasses the voluntary, deliberate, and prohibited action or omission committed by an individual. Actus reus involves a specific behaviour or an act.


To establish criminal liability, both mens rea and actus reus must be proven. The prosecution must prove that the accused not only committed the prohibited act (actus reus) but also possessed the required mental state (mens rea) at the time of the offence. However, in strict liability offences, actus reus alone is sufficient for conviction, without the need to establish a corresponding mens rea.

Strict Liability Offences Examples



In NSW, exceeding the prescribed speed limit is considered a strict liability offence. Even if the driver is unaware of the speed limit or did not intentionally exceed it, they can be charged and penalised based solely on the act of speeding.


Offences such as high range drink driving is also an example of of a strict liability offence.


Underage drinking


Consuming alcohol while being underage is another example of a strict liability offence. A person may be held responsible for drinking alcohol, irrespective of their knowledge of the age restriction or their intent to break the law.


Environmental Offences


Many environmental regulations are classified as strict liability offences. Activities such as improper disposal of waste, unauthorised emission of pollutants, or failure to comply with environmental protection laws can lead to strict liability charges, even if the offender was unaware of the specific regulations or lacked intent to harm the environment.

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Defences To Strict Liability Offences

Although strict liability offences do not require proof of intent, individuals accused of such offences still have certain defences available to them. These defences can help mitigate or challenge the charges.


The Defence of Honest and Reasonable Mistake of Fact


If the accused can demonstrate that they made an honest and reasonable mistake of fact, it may provide a valid defence. For example, if someone unknowingly possessed a prohibited substance due to a mislabelling error or incorrect information, it could be argued that they did not intentionally commit the offence. For this defence, you must show the following;


  • It is essential to provide evidence of sincerely and genuinely holding the mistaken belief. For instance, if you face charges of driving while disqualified but were unaware of your disqualification because the RMS informed you that your licence was still valid.
  • The reasonableness of your belief will be assessed based on whether an average person in your situation would have held the same belief. The court will consider any actions you took to confirm your belief. For instance, in a case involving a sexual offence, the court will examine the steps you took to establish if consent was given.
  • The belief should pertain to specific facts rather than the law itself. Simply arguing that you were unaware of the illegality of your actions will not be sufficient.

Furthermore, you must demonstrate that if the facts aligned with your belief, you would not have committed an offence.


Understanding strict liability offences is crucial for individuals in NSW to navigate the legal system effectively. While strict liability offences do not require proof of intent, knowledge, or negligence, individuals accused of such offences can still explore the defence of honest and reasonable mistake of fact.


Being aware of these defences can help individuals protect their rights and mount a strong defence against strict liability charges. It is advisable to consult with a qualified legal professional to ensure the best possible outcome when facing strict liability offences in NSW. If you’ve been charged with a strict liability offence, you should seek legal representation immediately.


An experienced criminal lawyer will be able to understand the nuances of your case, as well as help with creating defence based around an honest and reasonable mistake of fact.


At Lyons Law Group, our team of traffic lawyers in Sydney are best in the business. If you would like to discuss a defence for a strict liability offence, get in touch with our lawyers.


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