Using an Intoxicating Substance to Commit an Indictable Offence

In New South Wales you can be charged with an offence if you give someone else alcohol, drugs or some other intoxicating substance with the intention of committing certain types of offences called ‘indictable offences’. An ‘indictable offence’ is an offence which can be dealt with in the District Court. In New South Wales this includes any “table offence” and any “strictly indictable offence”. A “table offence” is an offence where the accused person or the DPP can seek to have the matter finalised in the District Court. A “strictly indictable offence” is an offence that must be finalised in the District or Supreme Court.

This offence is known as Using an Intoxicating Substance to Commit an ‘Indictable Offence’.

You can be charged with the offence if you administer an intoxicating substance (such as alcohol or drugs) or if you cause someone to take an intoxicating substance, with or without their knowledge.

The maximum penalty for the offence is 25 years imprisonment.

The Offence Of Using An Intoxicating Substance To Commit And Indictable Offence

The offence of Using an Intoxicating Substance to Commit an Indictable Offence is contained in section 38 of the Crimes Act 1900 and states that a person who:

administers an intoxicating substance to another person, or
causes another person to take an intoxicating substance,

with intent to enable himself or herself, or to assist a third person, to commit an indictable offence is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

What Actions Might Constitute The Offence Of Using An Intoxicating Substance To Commit An Indictable Offence?

Examples of Using an Intoxicating Substance to Commit an Indictable Offence include:

Spiking a woman’s drink in a nightclub in order to take her home and rape her;
Getting a friend extremely drunk so as to steal her wedding and engagement ring; or
Putting a handkerchief soaked in chloroform over someone’s mouth to render them unconscious, kidnap them and hold them for ransom.

What The Police Must Prove

To convict you of Using an Intoxicating Substance to Commit an Indictable Offence the prosecution must prove each of the following matters beyond a reasonable doubt:

That you administered an intoxicating substance or caused an intoxicating substance to be taken by someone else; and
That you did this with the intention of committing an indictable offence or assisting someone else in committing an indictable offence.

Possible Defences To Using An Intoxicating Substance To Commit An Indictable Offence

The common ways to defend this charge are:

To argue that you did not administer an intoxicating substance or cause an intoxicating substance to be taken by someone else;
To argue that you did not intend to commit an indictable offence or assist someone else to commit an indictable offence.