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What is the criminal defence of intoxication?

The criminal defence of intoxication is only available for offences that are classified as specific intent offences. A specific Intent offence is an offence requiring proof by the crown that the accused possessed a specific intent to bring about a specific result. An example of a specific intent offence is maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm. It is not sufficient that the crown merely proves that the accused inflicted the grievous bodily harm, but that the accused also intended to inflict the harm.


The court can take into account the degree of intoxication of the accused when determining whether the crown have proved that the accused had formed the intent to bring about a specific result.

Section 428C of the NSW Crimes Act provides:

  1. Evidence that a 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.

Relevant definitions

Section 428A Crimes Act 1900 provides:

In this Part:

“drug” includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug of addiction within the meaning of the Poisons Act 1966 .

“intoxication” means intoxication because of the influence of alcohol, a drug or any other substance.

“offence” includes an attempt to commit the offence.

“relevant conduct” means an act or omission necessary to constitute the actus reus of an offence.

“self-induced intoxication” means any intoxication except intoxication that:

  • (a) is involuntary, or
  • (b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or
  • (c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a person authorised under the Nurses and Midwives Act 1991 to practise as a nurse practitioner or a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions.

Intoxication in relation to a reasonable person test

Even though intoxication is available for specific intent offences, if a comparison has to be made between the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated.

Intoxication cannot be taken into account in respect to voluntariness

An accused can no longer rely upon an automatism type defence when intoxicated, if such intoxication was self induced. Section 428G provides:

Case Law

R v Manuel Arnean Makisi


The appellant and a group of about seven men, who had been drinking at Burwood Park since the previous evening, chased three other men and caught them outside the Telstra building in Burwood. They assaulted the three men and robbed two of them. They wounded the third. The police noticed that the appellant smelled of alcohol and formed the view that he was moderately intoxicated. They therefore deferred interviewing him.

When the appellant was eventually interviewed, the appellant gave the police an account including an assertion that he was very drunk and did not remember much after leaving the park. Although he remembered being arrested in a laneway, he knew nothing about the assaults or the mobile telephone which was found behind the fence. His evidence at trial changed. He said that he had lied to the police in order to protect his brother and that his only involvement in the attack had been to seize his brother to take him away from the fighting. He denied throwing away the mobile telephone.

Ground of Appeal

The appellant argued that the learned sentencing judge incorrectly directed the jury in relation to intoxication that the jury had to “work out beyond reasonable doubt whether the accused had, in relation to charge number one the capacity to act intentionally.


The Crown had to prove that the appellant intended to rob. Evidence of the effect on him of alcohol was relevant to that question. As Hunt J said in R v Coleman, reference to the effect of alcohol on the accused’s capacity to form the requisite intent is unnecessary and confusing. Of course, a conclusion that an accused lacked the capacity to form an intent would mean that he did not form the intent. But if the Crown proved that the accused did not lack the capacity to form the intent that would not be proof that he formed the intent.

From a practical standpoint, a jury might think that drunkenness would be less likely to remove the capacity to form intent than to inhibit the formation of the intent. So to leave the question as one about capacity would be to disadvantage the accused because it would be more difficult to raise a reasonable doubt about capacity than about the actual formation of the requisite intent.

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