Is Intoxication a criminal defence in NSW?
28 July 2025 in Criminal Law | 3 min read | skip to FAQsIn NSW, intoxication by alcohol or drugs is technically not a criminal defence. However, it may be considered for certain offences when deciding whether a person who committed a crime had the requisite intent to commit the crime. These types of offences are known as “specific intent” offences.
Specific Intent
An essential element of any specific intent offence is that the offender purposely intended to cause a specific outcome. For example, if a person is charged with intimidation, the prosecution must prove beyond a reasonable doubt that the accused had the intention to cause the other person to fear physical or mental harm. If the prosecution cannot prove that the accused had the required intent, the charges could be dismissed.
Drugs and alcohol can impact a person’s state of mind, and courts may take evidence of intoxication into account when determining the intent of the accused, section 428C(1) of the Crimes Act 1900 (NSW) states that evidence of an accused’s intoxication, whether or not self-induced, at the time of the offence, can be considered when determining their intent.
However, it is important to note that section 428C(2) does not allow evidence of intoxication to be considered if the accused formed the intent to commit an offence before they became intoxicated, or where the accused became intoxicated to strengthen their resolve to commit an offence.
The ‘Reasonable Person’ Test
When intoxication is used as a defence to argue that the accused did not have the requisite intent to commit the offence, the court must compare the accused persons state of mind with that of a “reasonable person”.
Section 428F of the Crimes Act 1900 provides that when determining whether a person is guilty of an offence, it is necessary to compare their state of mind with that of a reasonable sober person. For example, the court will compare the actions of the accused to the actions of a reasonable sober person and determine whether they would have acted in the same manner.
Offences where Consideration of Intoxication will Not apply
Offences that do not require a “specific intent” are known as “basic intent” offences, these offences only require the basic “mens rea” or mental understanding of the effect of a crime. “Basic intent” offences do not require the additional element of “specific intent” which requires the intent to cause a specific outcome, such as causing fear or mental harm in the case of intimidation.
With “basic intent” offences an accused may be found guilty of an offence regardless of whether the accused intended to cause a specific outcome, as such, self-induced intoxication is irrelevant for determining their guilt. The only occasion in which intoxication may be considered for basic intent offences is where the intoxication was involuntary, such as when a person is tricked, or forced into talking drugs or alcohol.
What to do if you are charged with an Offence while Intoxicated?
As noted above, there are limited circumstances in which intoxication can be used as a criminal defence. Courts will only consider intoxication in relation to specific intent offences and will not consider it if there is evidence that the accused formed the intent prior to their intoxication, or used the intoxication to strengthen their resolve to commit the offence.
However, if you have been charged with an offence and you were intoxicated, you should seek legal advice immediately. It is possible that as a result of your intoxication you were not able to form the requisite intent to be convicted of a specific intent offence.
How can BSM Sydney Lawyers assist you?
The criminal lawyers at Brander Smith McKnight Sydney Lawyers are experienced in a range of criminal matters and can give you expert advice on what to do when you are charged with an offence. The senior criminal lawyers at BSM Sydney Lawyer offer a free 20-minute consultation.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
FAQs
What is a Specific Intent Offence and how does it affect Intoxication as a Defence?
An essential part of any specific intent offence is that the offender purposely intended to cause a specific outcome and the prosecution must prove this to win the case and find the person guilty. Drugs and alcohol can impact a person’s state of mind, and courts may take intoxication into account when determining the intent of the accused. That is, you may be found innocent of the charge. However, it is important to note that if the accused formed the intent prior to becoming intoxicated this line of defence can’t be used.
What is a Basic Intent Offence and how does it affect Intoxication as a Defence?
These are offences that don’t require a specific intent, they only require the basic “mens rea” or mental understanding of the effect of the crime. Therefore, the prosecution doesn’t need to prove specific intent to prove the accused person guilty. In these cases, intoxication cannot be used as a defence. The only time it may be used as a defence is if the person was tricked or forced into drinking alcohol or taking drugs.
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About the Author
Ryan RenBachelor of Laws I Bachelor of Commerce (Marketing) I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileRyan is an accomplished senior lawyer with extensive experience in criminal law. Ryan holds a double degree from the University of Wollongong; Bachelor of Laws and a Bachelor of Commerce. He also holds a Graduate Diploma of Legal Practice. Ryan is a skilled negotiator and advocate and consistently achieves excellent outcomes for his criminal law clients. His expertise and focus enable him to deliver the best possible outcomes for his clients. Ryan is a senior member of the Criminal law team.
