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Intoxication and Criminal Offences (NSW)

Intoxication is sometimes erroneously referred to as a criminal defence. Rather than a defence, intoxication by alcohol or drugs is a factor that can sometimes be taken into account when determining whether a person had the intent to commit an offence. Whether evidence of intoxication can be taken into account depends on the offence in question. It also depends on whether the accused was intoxicated voluntarily or involuntarily.

What is voluntary intoxication?

Voluntary intoxication occurs when a person consumes alcohol or takes drugs of their own free will.

What is involuntary intoxication?

Involuntary intoxication occurs when a person is forced or tricked into taking drugs or alcohol.  This may occur when a person is threatened if they do not consume alcohol or drugs, when they are forcibly drugged, or when they are affected by the unforeseen side-effects of a drug. Involuntary intoxication may also occur when a person is dosed with alcohol or drugs without their knowledge.

Offences of specific intent

An offence of specific intent is an offence where the offender intended to cause a specific result. An example of this is stealing. To be found guilty of stealing, a person must have intended to take something that did not belong to them and to keep it permanently.

When dealing with an offence of specific intent, a court may take into account evidence that the accused was intoxicated in determining whether the accused formed the intent required to make out the charge. The effect that the alcohol or drug had on their state of mind is one factor that may be considered when making this assessment. The accused’s intoxication will not be relevant to assessing any other matters.

A person may be acquitted of an offence of specific intent if their level of intoxication was such that they were incapable of forming the requisite intent.

However, Section 428C of the Crimes Act 1900 states that an accused’s intoxication cannot be taken into account if he or she:

  • formed a specific intent to commit the offence before becoming intoxicated; or
  • became intoxicated in order to strengthen his or her resolve to commit the offence.

Other offences

Offences that do not require a specific intent are offences where the offender can be found guilty regardless of whether they intended to cause a specific result. When a person is charged with an offence that does not require specific intent, evidence of the accused’s intoxication is not relevant to determining whether they are guilty of the offence.

The reasonable person test

In a situation where the reasonable person test must be applied, the reasonable person is one who is not intoxicated.

For example, where a person commits an act of violence and runs the defence of self-defence, it is necessary to decide whether a reasonable person would have considered it necessary to do what the accused did in self-defence.

In this situation, if the accused was intoxicated at the time, the jury may take into account their intoxication when considering whether the accused thought it was necessary to act as he or she did. However, when deciding what would have been a reasonable response, it must not take into account intoxication. Rather, it must consider what a reasonable sober person would have done in the circumstances as the accused (drunkenly) perceived them.

Law reform

The question of how much significance should be attached to intoxication when determining criminal responsibility is far from settled. A number of problems with the current approach of criminal law to intoxication have been highlighted, including:

  • There is no comprehensive definition of ‘intoxication’ in legislation;
  • Court often have to assess a person’s level of intoxication based on limited evidence with the amount of alcohol consumed usually self-reported and imprecise;
  • Expert evidence as to the effects of alcohol or drugs is usually not adduced;
  • The effects of alcohol are presumed to be a matter of ‘common knowledge’, based on the assumption that jurors have personal experience with alcohol. This line of reasoning is problematic, particularly when applied to drugs other than alcohol, as only a minority of Australians have experience with illicit drugs.

In the last few years, intoxication has been a focus in discussions of the exercise of police powers, criminal responsibility and punishment. As a result, increasing attention is now being paid to the way the criminal law deals with intoxication and how the law balances the need to hold people responsible for their actions with the principle that one should only be held accountable for voluntary conduct.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.


Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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