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Intoxication in Tasmania

Intoxication in itself does not amount to a criminal defence in Tasmania. There are, however, provisions in the Criminal Code Act 1924 that require a court to take into account an accused person’s intoxication in certain circumstances. This article examines how the criminal law deals with intoxication in Tasmania and discusses the common law defence of involuntary intoxication.

Intoxication and intent

If a person is charged with an offence that requires them to have had a specific intent, the Tasmanian law allows for evidence that they were intoxicated to be taken into account in determining whether they had that intent. Examples of offences of specific intent include stealing, where the accused must intend to permanently deprive a person of their property; and murder, where the accused must intend to cause a person’s death.

If a person committed an offence while intoxicated, their intoxication may be relied on by the defence to suggest that they were not capable of forming the requisite intent.

Intoxication and insanity

The defence of insanity may be relied on by a person who was suffering from a disease of the mind caused by intoxication. However, intoxication that does not amount to such an incapacity does not rebut the presumption that a person intends the consequences of their actions.

Involuntary intoxication

Though the criminal code act does not make specific mention of involuntary intoxication, the common law has established that a person has a criminal defence if their intoxication was involuntary. Involuntary intoxication occurs when a person consumes an intoxicating substance accidentally, or when they are forced or tricked into consuming it.

In some jurisdictions, evidence of involuntary intoxication provides a full defence even where the accused can be shown to have had the requisite intention but only formed the intention after becoming involuntarily intoxicated.  

It is unclear to what extent involuntary intoxication provides a defence in Tasmania.

R v Weiderman

In the 1996 Tasmanian Supreme Court decision of R v Weiderman, the court was asked to make a ruling during a murder trial as to how evidence of the accused’s intoxication could be taken into account by the jury.

The accused was charged with murder after shooting his father with a firearm. The victim had been physically and mentally unwell and the accused had been his live-in carer. There was evidence that the victim had wished to end his life to avoid being placed in a home. The prosecution case was that the accused murdered his father either to avoid the burden or caring for him or to end his suffering.

The accused gave evidence that he had gone outside to the shed with his father with the intention of being present while the man committed suicide, but that the victim had asked him to assist, and he had fired the fatal shot. He had been heavily intoxicated at the time and said he had no memory of his thoughts and that he did not intend to kill the man.

The accused suffered from an anxiety disorder and argued that this, combined with the effects of alcohol, rendered him unable to appreciate the consequences of his actions and the fact that they were likely to cause death.

The court found that the jury should be directed that it could take into account the accused’s mental illness and its interaction with his intoxication in assessing whether the accused ought to have known that death was the probable result of his act. If the jury is not satisfied that the accused was suffering from a mental disorder, then evidence of his intoxication could not be taken into account.  

Criticisms of the law

Laws that permit evidence of an accused person’s intoxication to be taken into account in any way at trial have long caused controversy. Some have argued that evidence of voluntary intoxication should never be allowed to be considered on public policy grounds as a person who has chosen to become intoxicated should be held fully responsible for their actions while in that state. It has further been argued that evidence of intoxication should not be allowed to be considered even when assessing whether an accused person had a specific intent. However, at present, there is no proposal to change the law around the defence of intoxication in Tasmania.

If you require legal advice or representation in any 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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