Defence of Intoxication

If 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.

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.
  • Intoxication must be involuntary if it is to be used to assist you and for you to argue that a different standard should be applied to you.

Example of Self-Defence When Intoxicated
Self-defence contains a subjective and objective element. The subjective element is that the accused must have believed that acting in self-defence was necessary. The objective element requires that belief to have been on reasonable grounds.

Evidence of intoxication may be relevant to the subjective element. If the accused was intoxicated at the time they committed the alleged crime, the Court can take this into account when determining whether they believed:

  • that an occasion for the use of force had arisen; or
  • that the use of force was necessary (R v Conlon (1993) 69 A Crim R 92 (NSWSC); Bedi v R (1993) 61 SASR 269; Ninness v Walker (1998) 143 FLR 239; R v Katarzynski [2002] NSWSC 613).

If an accused intoxication was not self-induced then the Court will take into account the actions of a ‘reasonable person’ who was intoxicated to the same level in determining whether their actions were subjectively reasonable in the circumstances.

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;

Beyond Reasonable Doubt
Each element of a charge must be proved beyond reasonable doubt. If you are not guilty of a particular element, then you must be found not guilty. If a charge is contested on the basis of intoxication, you may argue that you could not have committed one of the elements of the crime as you could not have had the requisite intention due to your intoxication. You may argue that in your intoxication you believed you needed to defend yourself, even though a sober person may not have the same subjective reasoning. You may argue that an admission is not admissible due to your intoxication or that you were not acting voluntarily.

For more information, read our blog article on intoxication as a defence.