Defence of Intoxication

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Josh HarrisThe article Defence of Intoxication is written by Josh Harris, Associate, Doogue + George Defence Lawyers.

Josh Harris was admitted to practice after completing a Juris Doctor and a Bachelor of Arts at the University of Melbourne. Before joining Doogue + George, he was an associate at the County Court of Victoria to HH Judge Lyon.

Josh is experienced in indictable crimes such as sexual offences, drug trafficking, and culpable driving. When he was a Senior Associate to the Criminal Reserve List, he was involved in the high level planning, administration, and finalising of all criminal matters listed in the County Court.

Alcohol and Tipped Over Wine Bottles and GlassIf you are intoxicated at the time when it is alleged you committed an offence, depending on the circumstances, this could be relevant to whether you are found guilty or not guilty. If it is not self-induced then it may mean that an element of the crime is judged by a different standard.

Intoxication is not a complete defence; it is not a defence in itself. However, it is relevant to whether the fact-finder could be satisfied that the accused’s actions were voluntary or that they had the relevant intention to commit the offence. It might be something relied upon by the defence in order to cast doubt upon the prosecution evidence of intention or voluntariness.

Statutory Law of Intoxication

Crimes (non-homicide) committed after 2014 are governed by the law of intoxication as it is legislated in section 322T of the Crimes Act 1958.

Intoxication means intoxication because of the influence of alcohol, a drug or any other substance. Other substances causing intoxication might include, for example, glue or petrol. The legislation differentiates between self-induced intoxication (voluntary) and involuntary intoxication.

What if the intoxication is self-induced?

To put it simply, if you have been drinking alcohol or using drugs then you have intoxicated yourself and, for crimes committed after 2014, you largely cannot rely on intoxication to assist you in your defence.

If any part of a defence to an offence relies on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.

If any part of a defence to an offence relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated.

Self-Induced Intoxication

Intoxication will be considered self-induced unless it occurred involuntarily or because of fraud, accident, reasonable mistake, duress or force.

Intoxication will not be self-induced if it came about from using a prescription drug in accordance with the directions of the person who prescribed it, from using a non-prescription drug for a purpose and at the dosage level recommended by the manufacturer or from using a medicinal cannabis product in accordance with a patient medicinal cannabis access authorisation.

However, if a person using the prescription or non-prescription drug knew or had reason to believe, when taking the drug, that it would significantly impair their judgment or control, then the resultant intoxication will be self-induced.

Involuntary intoxication: How can intoxication be used as a defence?

Where intoxication is not self-induced under section 322T, it will help the Court determine whether someone acted with a reasonable belief or had a reasonable response to a situation. The court will apply the standard of a ‘reasonable’ person, intoxicated to the same level as the person accused of committing a crime.

Common Law Intoxication

Non-homicide crimes committed prior to 2005 are governed by the common law of intoxication, that is, case law. Evidence that the accused was intoxicated at the time the offence was committed may be used for the following purposes:

  • To negate an element of the offence (e.g. voluntariness);
  • To prove an element of a defence (e.g. self-defence);
  • Affect the admissibility of a confession or admission made by a person who was intoxicated;

To negate an element of the offence

Evidence of intoxication may raise a reasonable doubt about the existence of one of the elements of an offence. If the prosecution cannot eliminate that doubt, the accused should be acquitted – not because he or she was intoxicated, but because the charge has not been proved beyond reasonable doubt (R v O’Connor (1979) 146 CLR 64).


The existence of a voluntary act is an essential element of every offence. The accused must not be convicted for an act which was independent of his or her will (Ryan v R (1967) 121 CLR 205; R v O’Connor (1979) 146 CLR 64; R v Marijancevic (2009) 22 VR 576). So if an accused is heavily intoxicated, then it may be that they acted involuntarily. It should be noted that it will be rare that a person’s state of intoxication will have been so extreme that his or her acts were involuntary.


The accused must be acquitted if, due to intoxication, they did not intend to do the physical act charged or did not intend to attain the result required by the offence. It is for the prosecution to prove that the accused acted with the requisite intention, despite his or her level of intoxication.


If you were intoxicated when you committed an offence, it may be relevant to your case. If the intoxication was not self-induced (i.e. you did not do it to yourself on purpose) then the Court will consider how a ‘reasonable person’ who was intoxicated to the same level may have acted. It may find that a person intoxicated to the level you were could not have committed certain elements of a crime or have formed the intention to commit the crime in the first place. If any element of a crime cannot be proven beyond reasonable doubt, due to there being uncertainty due to your level of intoxication, then you must be acquitted.

We are a specialist criminal law firm who have a lot of experience we can use to help you.

Doogue + George have appeared in some of the largest cases in Victoria. We have helped clients achieve great results in Court and often helped them to turn their lives around.
Date Published: 10 August 2022

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