Defence of Intoxication (NSW)

In NSW, when a person is intoxicated and commits an offence, their intoxication may be taken into account in assessing whether they had the requisite intent to commit the offence and/or whether their intoxication resulted in the relevant conduct of the offence. Part 11A of the Crimes Act 1900 contains the relevant provisions and dictates how intoxication may be considered and applied when determining an offender’s criminal responsibility. 

The availability of the defence of intoxication will heavily depend on the offence charged and whether the intoxication was self-induced or was not self-induced.  

How offences are proven:

In order for a person to be found guilty of any offence, the Prosecution must prove every element of the offence to the standard of beyond a reasonable doubt. 

The ‘elements’ of an offence are the ingredients that make up the offence. All offences contain physical elements known as the ‘actus reus’ of the offence (such as driving a motor vehicle, hitting or slapping another person, or being in possession of a drug) and mental or ‘fault’ elements known as the ‘mens rea’ for the offence (such as intent, recklessness or knowledge). When the Prosecution is unable to prove each and every element of the offence to the standard of beyond a reasonable doubt, the person charged should be found not guilty.

Even if the Prosecution can satisfy all the elements of an offence to the standard of beyond reasonable doubt, the person charged may raise a defence to the charge which, if accepted, means they are not criminally liable and therefore not guilty of the offence. 

Definitions – Intoxication and Self-Induced Intoxication

The Act at Section 428A provides the relevant definitions for the defence of intoxication including:

Intoxication – means intoxication because of the influence of alcohol, a drug or any other substance.

Self-induced intoxication – means any intoxication except intoxication that—

1. is involuntary, or
2. results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or
3. results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions.

Relevant conduct – means an act or omission necessary to constitute the actus reus of an offence. 

Intoxication and Actus Reus (Acts of Offence):

In determining whether a person has committed an offence:

1.  Evidence of self-induced intoxication cannot be taken into account when determining whether the relevant conduct was voluntary – Section 428G(1), 
2. A person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced – Section 428G(2). 

Intoxication and Mens Rea (Mental Element of Offence):

Offences of Specific Intent and Intoxication:

Section 428B defines offences of specific intent as an offence in which an intention to cause a specific result is an element. The section provides tables of the relevant offences which are examples of the offence which include acts done to the person with intent to murder, predatory driving, kidnapping, enter dwelling-house, money laundering, destroy or damage property with intention to injure person, 

Section 428C(1) of the Act provides that evidence that a person was intoxicated (whether self-induced or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. 

Such evidence of intoxication however cannot be taken into account if the person had resolved before becoming intoxicated to do the relevant conduct or became intoxicated in order to strengthen his or her resolve to do the relevant conduct. 

Intoxication in relation to Murder, Manslaughter and Assault Causing Death:

Section 428E of the Act creates a specific provision in relation to the offences of murder, manslaughter and assault causing death. The section provides that if evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder:

1. In the case of intoxication that was self induced – evidence that intoxication cannot be taken into account when determining whether the person had the requisite intent for manslaughter or assault causing death, or 
2. In the case of intoxication that was not self-induced – evidence that intoxication may be taken into account in determining whether the person had the requisite intent for manslaughter or assault causing death. 

Other Offences and Intoxication:

Section 428D of the Act provides that in relation to other offences when determining whether the person had the mens rea (the mental or fault element) for an offence, evidence that a person was intoxicated at the time of the relevant conduct:

1. If the intoxication was self-induced – cannot be taken into account, or
2. If the intoxication was not self- induced – may be taken into account. 

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