Key Takeaways

Intoxication can be used as a defence to be acquitted of a criminal charge in NSW for specific-intent offences. This will apply if the intoxication from drugs and/or alcohol prevented an accused person from being able to have the requisite specific intent to cause a specific result element of the crime.

Here is more on automatism defences.


Is Intoxication a Defence?

Intoxication is commonly called a defence but is technically not a defence. Intoxication can result in certain criminal charges being dismissed because it can make it much more difficult for the prosecution to prove the mental element or a specific intent element of a crime, in order prove a crime beyond reasonable doubt. Intoxication can therefore effect a person’s ability to have the required intention to commit a crime. Whether intoxication is allowed to be taken into account or not depends on whether the offence is a specific-intent offence or a basic-intent offence (not a specific-intent offence).

For the law on intoxication defence to murder click here.


Specific-intent Offences

Specific-intent offences such as murder and intimidation are offences that require sufficient proof of the additional element of an intention to cause about a specific result. Failure by the prosecution to prove this beyond reasonable doubt will result in acquittal and dismissal of the charge.

An examples specific-intent offence of “intimidation” requires proof beyond reasonable doubt that the accused intimidated a person,  and also had the intention of causing fear of physical or mental harm to that person. The offence will only be proven if both of these elements are proven against an accused person through evidence adduced by the prosecution. Failure to be able to prove that an accused person had that requisite intention would result in a failure to prove the offence of intimidation. This will result in an acquittal.


Offences that are Not Specific-Intent Offences

Basic-intent offences (non ‘specific-intent offences’) will require a more general mental element to be proven in order for the crime to be proven. This mental element is the intention . Examples of this are common assault offences, where the prosecution must prove beyond reasonable doubt that the accused intended to cause or realised the possibility that his/her act will cause an apprehension of immediate and unlawful violence or sustain unlawful force to the other person but did it anyway.

Difference between basic-intent offences and specific intent offences is that specific intent offences is an additional element of the crime which must be proven beyond reasonable doubt. In contrast, basic-intent offences do not require the additional proof of the intention to cause about a specific result, other than the mens rea or mental element of the crime. basic-intent is established by knowledge of the circumstances which give the act its character. Specific-intent is established by proof of a desire or wish to cause the prescribed result. This distinction has been expressed in the case of He Kaw The v The Queen (1985).


Intoxication Defence for Specific-Intent Offences

Intoxication from drugs and/or alcohol is permitted to be taken into consideration when the court is trying to determine whether an accused person had an intention to cause a specific result as an element of a crime. This only applies to specific-intent offences, and equally applies whether or not the intoxication was self-induced or not self-induced intoxication, according to section 428C Crimes Act 1900 (NSW).

Intoxication is not permitted to be taken into consideration by a court for a specific-intent offence if an accused person had resolved before becoming intoxicated to do the offending act, or if he or she became intoxication in order to strengthen their resolve to do it.

For examples, whether or not intoxication is self-induced, your state of intoxication can be considered by a court in support of arguing that you were incapable of having the requisite intention to cause fear of physical or mental harm to a person when voluntarily committing an act of intimidation towards that person, for an intimidation charge.


Intoxication Defence for Non Specific-Intent Offences (Basic Intent Offences)

Intoxication from drugs and/or alcohol cannot be taken into consideration by a court to determine whether an accused person had the requisite mental element (mens rea) of a crime that is not a specific-intent offence if the intoxication was self-induced.

For example, the fact that you voluntarily took drugs and/or alcohol thereby causing you to be intoxicated cannot then be taken into account by a court in determining whether at the time of committing an act causing an apprehension of immediate and unlawful violence or sustain unlawful force, you did so with the intention of causing that fear or unlawful force, for a common assault charge.

However, intoxication can be taken into account on determining that element if the intoxication was not self-induced. In this scenario, your state of non-induced intoxication can be taken into account in support of arguing that you were incapable of forming that intention for basic intent offences, such as common assault.


Involuntary Intoxication Defence

The law assumes that a person who commits an act constituting an offence does it voluntarily. This presumption can only be displaced if there is evidence raising a reasonable possibility that the act was not a voluntary act. In those circumstances, the prosecution must prove that it was a voluntary act, and that is an onus required to be proven beyond reasonable doubt by the prosecution.

If an act constituting a crime was not voluntary, then the accused person will be acquitted of the charge and allowed to walk free. If it was voluntary, then the accused will be guilty assuming the rest of the elements of the crime are proven.

When considering whether or not an act was voluntary, self-induced intoxication cannot be taken into account, according to section 428G Crimes Act.

In contrast, where if the intoxication was not self-induced, and where act is found to be involuntary caused by intoxication that was not self-induced, then the accused person will not be criminally responsible and walks free, according to section 428G Crimes Act.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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