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Is intoxication a defence to a criminal charge?


If you watch too much prime-time TV you might be forgiven for thinking that you can get off a criminal charge because you’re drunk.

The reality is quite the opposite.

It’s not uncommon for people to say that they wouldn’t have behaved in a particular way, or committed an offence at all, if they hadn’t been drunk. Sometimes, they are so drunk they can’t remember doing it.

Generally speaking the idea is that people should not be able to excuse bad behaviour because they were drunk, when they made the decision to get drunk in the first place.

If your intoxication was not voluntary, it’s a little different.

It’s important to note that even if your offence falls into one where intoxication can be taken into account, it does not mean that you are automatically not guilty – just that the Court can take that fact into account when looking at your intent.

How it works depends on whether the offence is one of specific intent or not.

Specific Intent Offences

There are many kinds of offences which are ones of specific intent – this is not an exhaustive list, but some examples of offences include:

  • Murder;
  • Wound with intent;
  • Choking with intent to commit an indictable offence;
  • Assault with intent to have sexual-intercourse;
  • Intimidation;
  • Kidnapping; and
  • Being armed with intent to commit and indictable offence.

These types of offences require an intent to bring about a specific result.

Your intoxication can be taken into account in determining whether you intended to bring about that specific result.

For all other types of offences, the rules are different.

Other types of offences

In very very limited circumstances, intoxication can be taken into account in determining whether you have a mens rea to commit an offence. Mens rea is the mental element, or knowledge or intention required to commit an offence.

If your intoxication was self-induced, it cannot be taken into account.

If it was not self-induced (for example if your drink was spiked or you’ve had a bad reaction to a drug taken in accordance with medical practitioners instructions) your intoxication can be taken into account in determining whether or not you formed the mens-rea.

Practically speaking, if you got yourself drunk, and then committed any of the following offences, your intoxication cannot be taken into account in determining whether you are guilty:

In some circumstances, the Court might actually regard the fact that you were drunk when you committed an offence as an aggravating feature – so its important to ensure you get some legal advice before raising it with the Court.

Image Credit – Rostislavsedlacek © 123RF.com

Written by Angela Cooney on June 21, 2018

Angela is able to assist clients with all criminal offences such as assaults, drug charges, traffic matters, theft, break and enters, firearms, sexual offences and apprehended violence orders. Angela is an experienced Court advocate having appeared in the Local and District Court, the Court of Criminal Appeal as well as in Federal jurisdictions in a multitude of matters, including complex strictly indictable trials. View Angela's profile


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