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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Intoxication and Criminal Offences (NSW)


Intoxication is sometimes thought to be a criminal defence. Rather than a defence as such, intoxication by alcohol or drugs is a factor that is sometimes taken into account when assessing whether an accused had the requisite intent to commit a criminal offence. Whether evidence of a person’s intoxication can be taken into account at trial depends on the offence in question. It also depends on whether the accused person became intoxicated voluntarily or involuntarily.

What is voluntary intoxication?

Voluntary intoxication is when a person chooses to consume alcohol or to take drugs of their own free will.

What is involuntary intoxication?

Involuntary intoxication is when a person is forced or tricked into consuming drugs or alcohol. This may occur because they are threatened if they do not consume alcohol or drugs, when they are tricked into taking drugs (eg drink spiking), or when they are affected by the unforeseen side-effects of a prescription drug.

Offences of specific intent

An offence of specific intent is an offence that involves intentionally causing a specific result. An example of such an offence this is stealing. To be found guilty of stealing, an accused must be proven to have intended to take something that belonged to someone else and to keep it permanently.

When dealing with an offence of specific intent, courts may take into account evidence that at the tiem of the offending the accused was intoxicated by drugs or alcohol in determining whether they formed the intent required for the offence to be made out. The effect that alcohol or drugs had on the accused’s state of mind is one factor that the court may consider when assessing this. The accused’s intoxication is not relevant to assessing any other aspect of the matter.

A person may be acquitted of an offence that requires specific intent if their intoxication was such that they were unable to form such an intent.

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

  • formed a specific intent to commit the offence prior to getting intoxicated; or
  • became intoxicated in order to strengthen their resolve to commit the offence.

Intoxication and other offences

Offences that do not require the accused to have had a specific intent are those where the offender can be found guilty even if they did not intend to cause a specific result. When someone is charged with an offence that does not require specific intent, evidence of their intoxication is not relevant to determining whether the offence is made out beyond a reasonable doubt.

Intoxication and the reasonable person test

In a situation where the court has to apply the reasonable person test, the reasonable person is a person who is not intoxicated.

For example, where someone commits an act of violence and advances the defence of self-defence, the court must assess whether a reasonable person in their situation would have considered it necessary to do what they did in self-defence.

In this situation, if the accused was intoxicated, the jury may take into account their intoxication when assessing whether their belief that it was necessary to act as they did was reasonable. However, when deciding what would have been a reasonable response, it is not permitted to take into account the accused’s intoxication. It must instead consider what a reasonable sober person would have done in the accused’s situation as he or she (drunkenly) perceived it.

Law reform

The question of how much significance ought to attach to a person’s intoxication when determining their criminal responsibility is far from settled. A number of problems with the criminal law’s current approach to intoxication have been highlighted, including:

  • Legislation lacks a comprehensive definition of ‘intoxication’;
  • Courts often have to assess an accused’s level of intoxication based on limited evidence, usually relying on the accused’s own estimate of how much alcohol was consumed;
  • Expert evidence about effects of alcohol or drugs is usually not adduced;

The effects of intoxication are considered a matter of ‘common knowledge’, based on the assumption that jurors have personal experience of this. This is a problematic line of reasoning, particularly when applied to drugs other than alcohol, as only a minority of Australians have used illicit drugs.

In the last few years, intoxication has been much discussed in relation to the exercise of police powers, punishment and criminal responsibility. As a result, more and more attention is being paid to how the criminal law deals with intoxication and how it balances the need to hold people responsible for their actions with the principle that a person should only be held accountable for acts that they did voluntarily.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal. 

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