Section 268(2) of the Criminal Law Consolidation Act 1935 (SA) operates whenever an issue would otherwise arise at common law whether the defendant would be entitled to an acquittal because of lack of voluntariness or lack of the requisite mental element due to intoxication; it does not require proof that the defendant was incapable of forming the requisite mental state. Section 269(1) positively precludes a trial judge from raising with the jury the question of intoxication impairing consciousness to the point of criminal irresponsibility unless specifically requested to do so by the defendant or prosecutor; there is no residual common law discretion to do so. In South Australia, a Markuleski direction is not required in the ordinary case of multiple sexual offence counts resting on the evidence of a single complainant, though in exceptional circumstances it may be desirable or necessary.
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