Using Intoxicating Substances to Commit Crime

The Law

Section 38 of Crimes Act 1900 (NSW) states:

A person who:

• administers an intoxicating substance to another person, or
• causes another person to take an intoxicating substance,
• with intent to enable himself or herself, or to assist a third person, to commit an indictable offence,

is guilty of an offence.

What is an “indictable offence”?

Section 3 of the Criminal Procedure Act 1986 (NSW) provides that an ‘indictable offence’ is:
An offence (including a common law offence) that may be prosecuted on indictment.

An indictment is a formal document that the prosecution files with a court to commence proceedings, usually in the District Court.

An offence under Section 38 of the Crimes Act 1900 (NSW) is Aggravated if the administration of the substance was “potentially injurious of itself”: R v TA at [34]; also R v Bulut [2004] NSWCCA 325 at [15].

Jurisdiction / Case Law

An offence of Using Intoxicating Substances to Commit an Indictable Offence is what is known as a strictly indictable offence, which means that the matter will be finalised in the District Court or Supreme Court depending on the seriousness of the offence.

The nature and elements of the offence of Using Intoxicating Substance were considered in Samadi v R (2008) 192 A Crim R 251 where Beazley JA said at [160] that the legislature and the courts do not think drink or food spiking is a “soft crime” and “[t]hose who are convicted of such offence should expect to be dealt with by the courts on the basis that it is a very serious crime.”

In R v TA (2003) 57 NSWLR 444 at [34], the court said;

“…committing sexual offences whilst the victim has been drugged adds a significant degree of culpability to the administration of the drug intending to commit the offence. … I consider that the distinction between the offences is real and punishment for both should reflect the considerable additional criminality involved in fulfilling the intention with which the drug is given.”

What must the prosecution prove?

Since Using an Intoxicating Substance to Commit an Indictable Offence is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt. That is a high standard of proof that the prosecution must achieve before someone can be convicted.

To establish Using an Intoxicating Substance to Commit an Indictable Offence, the prosecution must prove each of the following matters beyond reasonable doubt:

• That you administered an intoxicating substance or caused an intoxicating substance to be taken by someone else; and
• That you did this with the intention of committing an indictable offence or assisting someone else in committing an indictable offence.

If you are charged with the offence of Using Intoxicating Substances to Commit Indictable Offence, what are your options?

National Criminal Lawyers (NCL) have been successful in defending many Using an Intoxicating Substance to Commit an Indictable Offence charges where the prosecution could not establish each of the elements to the required threshold of beyond reasonable doubt. We have also achieved several non-convictions for these charges for those who are found guilty or plead guilty.

It is for that reason that National Criminal Lawyers are the preferred specialist criminal solicitors in Sydney.

Our Senior Criminal Defence Lawyers, headed by Michael Moussa, one of Sydney’s Best Criminal Lawyers, will ensure that your case is closely examined to achieve the best of results.

NCL offer the following options for those who have been charged with Using an Intoxicating Substance to Commit an Indictable Offence:

1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that the prosecution has not proven its case beyond reasonable doubt;
3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Please contact us now for more information about your options.