Intoxication Defence: What The Law Says in NSW Australia

Intoxication Defence
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Spike in crime over holidays

In NSW, violent offending is 9 times higher on New Year’s Eve than on any other day, while the number of domestic assaults on New Year’s Day is the highest recorded all year. Break and enter offences also increase slightly on Christmas Eve and New Year’s Eve, according to the Bureau of Crime Statistics and Research (BOSCAR). BOSCAR analysed the number of criminal incidents recorded by police during the holiday period and noted that an increase in violent offences on New Year’s Eve is likely due to higher levels of alcohol consumption and social interaction.

Intoxication Defence: Is being intoxicated a defence?

The holiday period is typically filled with social events, many involving alcohol. While most enjoy a few drinks without coming into contact with the law, criminal matters can become complicated if an accused person is intoxicated when the alleged offence occurs.

Intoxication is not a defence in itself, but it may affect whether a person is found guilty of an offence. For offences that require the prosecution to prove that a person intended to cause a specific result (for example, murder), evidence that the person was intoxicated at the time of the relevant conduct may be taken into account when determining if they had the intention to cause the specific result necessary for that offence. However, evidence of intoxication cannot be taken into account in these circumstances if the person had decided to do the relevant conduct before they became intoxicated or if they became intoxicated in order to strengthen their resolve to do the relevant conduct.

If the offence is not one where the prosecution is required to prove that the accused person had an intention to cause a specific result, intoxication can only be considered if it was not self-induced.

Self-induced intoxication cannot be taken into account to determine whether the conduct said to comprise an offence is voluntary. However, if intoxication is not self-induced, and the relevant conduct resulted from the intoxication, a person is not criminally responsible for an offence.

In circumstances where an offence requires consideration of the state of mind of a ‘reasonable person’, the reasonable person is considered to be someone who is not intoxicated, even if the accused person was intoxicated at the time the alleged offence was committed.

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