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There are two circumstances in which evidence of intoxication can be used as a defence. The first is when the accused person is charged with an offence of specific intent, and the second is when the intoxication of the accused person was not self-induced.

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    Intoxication and offences of specific intent

    Section 428C of the NSW Crimes Act provides that evidence of intoxication may be taken into account where the charge relates to an offence of specific intent.  Specific intent offences are those which require the Crown to prove that the accused person possessed a specific intent to bring about a specific result. For example, the charge of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm include an element of specific intent – to inflict grievous bodily harm – above and beyond the act of actually inflicting grievous bodily harm.

    Even where the charge relates to an offence of specific intent, evidence of intoxication cannot be taken into account if the person had resolved to commit the offence before becoming intoxicated, or became intoxicated in order to strengthen his or her resolve to do the relevant conduct.

    Intoxication that was not self-induced

    Section 428G(G) provides that a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. For example, if the intoxication was:

    • involuntary, or
    • the result from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or
    • the result from the administration of a prescription drug in accordance with the prescription, or a non-prescription drug  in accordance with the dosage level recommended by the manufacturer.

    So, for example, if the person’s intoxication was due to drink spiking, the evidence of intoxication can be taken into account for any offence.

    Is evidence of intoxication relevant in sentencing?

    Even where evidence of intoxication could not be taken into account as a defence, it may still be relevant at the sentencing stage, either as a mitigating or aggravating factor, on an objective or subjective basis. For example, on one hand, if there was evidence to suggest that the offender acted out of character by reason of intoxication, that may be considered as mitigating the crime. However, on the other hand, if the offender become intoxicated recklessly and proceeded to carry out the crime, it may be considered as aggravating the crime.