Whilst intoxication cannot be used as a defence, it may be relevant when assessing a person’s criminal responsibility or the ‘mental element’ in particular circumstances. For example, a person’s intoxication level may be considered where the person is charged with an offence of specific intent. This refers to not only alcohol consumption, but also encompasses the effects of illegal drugs.

Section 428C of the Crimes Act 1900 (NSW) – Intoxication as a consideration for offences of specific intent

Section 428C of the Crimes Act 1900 (NSW) stipulates that intoxication may be taken into consideration for an offence of specific intent. In order for this to occur, evidence must be provided that:

1. The person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.
2. However, such evidence cannot be taken into account if the person:

a) had resolved before becoming intoxicated to do the relevant conduct; or

b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct.

To successfully argue the impact that intoxication had on the alleged offence, it will need to be established that the accused was intoxicated at the time of the offence, and that this intoxication then impacted the ability to form the requisite intention to commit the offence.

Intoxication can be evaluated both in circumstances when it was self-induced and when it was not.

What is an offence of specific intent?

Section 428B of the Crimes Act 1900 (NSW) defines a specific intent offence as “an offence of which an intention to cause a specific result is an element”. Put simply, specific intent offences requires proof by the Crown that the accused possessed a specific intent to bring about a specific result.

Some examples of specific intent offences may include:

• Stealing (where the accused must have intended to permanently deprive someone of their property);
• Intentionally causing serious injury (where the accused must have committed an assault that involved deliberately inflicting serious injury);
• Burglary (where the accused must have entered a building as a trespasser with the intent to commit a crime inside the building);
• Murder (where the accused must have intended to kill the victim).

Other offences which are not considered ‘specific intent’

Offences that do not require a specific intent are offences where the offender can be found guilty regardless of whether they intended to cause a specific result.

When a person is charged with an offence that does not require specific intent, evidence of the accused’s intoxication is not relevant to determining whether they are guilty of the offence. As such, in this circumstance, intoxication may not be considered when assessing the accused’s mental culpability.

The ‘reasonable person’ test

Where a ‘reasonable person’ test is applicable when considering the alleged offence of an accused, the reasonable person is one who is not intoxicated. This is an important factor to consider, as irrespective whether or not an accused was intoxicated at the time of the alleged conduct, the assessment is through the lens of a non-intoxicated person.

Photo by Anna Tis