Section 38A Crimes Act 1900 | Drink Spiking


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The increased prevalence of drink spiking in recent years has seen the law respond to public concerns by enacting laws against drink spiking.

Section 38A of the Crimes Act now contains an offence against drink spiking.

It says that it is against the law for you to give another person food or drink that contains an intoxicating substance that the other person is unaware of, where you do so with the intention of causing the other person harm.

It also says that it is against the law to give someone food or drink which contains more of an intoxicating substance than the other person would expect it to contain.

Examples of drink spiking include lacing another person’s drink with illegal drugs, or putting a large amount of alcohol in another person’s drink without their permission or knowledge.

The prosecution must also prove that you intended to cause the other person harm through your actions; for example, where you spike someone’s drink to make the more vulnerable or easy to take advantage of.

Drink spiking is treated seriously by the courts and carries a maximum penalty of 2 years’ imprisonment, and/or a fine of $1,100.

However, with the help of our highly experienced criminal lawyers, you can avoid these onerous penalties and get on with your life as soon as possible.

The Legislation

Section 38A deals with the offence of “drink spiking” and reads as follows:

38A Spiking drink or food

(1) In this section:”harm” includes an impairment of the senses or understanding of a person that the person might reasonably be expected to object to in the circumstances. “Impair” includes further impair.

(2) A person:

(a) who causes another person to be given or to consume drink or food:

(i) containing an intoxicating substance that the other person is not aware it contains, or

(ii) containing more of an intoxicating substance than the other person would reasonably expect it to contain, and

(b) who intends a person to be harmed by the consumption of the drink or food,is guilty of an offence. 

Maximum penalty: Imprisonment for 2 years or 100 penalty units, or both.

(3) For the purposes of this section, giving a person drink or food includes preparing the drink or food for the person or making it available for consumption by the person.

(4) A person does not commit an offence against this section if the person has reasonable cause to believe that each person who was likely to consume the drink or food would not have objected to consuming the drink or food if the person had been aware of the presence and quantity of the intoxicating substance in the drink or food.

(5) A person who uses an intoxicating substance in the course of any medical, dental or other health professional practice does not commit an offence against this section.

(6) An offence against this section is a summary offence.

Why Sydney Criminal Lawyers?

Drink spiking charges have the potential to result in onerous penalties which can affect your life and future.

However, you can give yourself the best possible defence by enlisting the help of our criminal law specialists to fight the charges.

Our lawyers will fight hard to protect your liberty by thoroughly scrutinising all the prosecution evidence to find issues with their case – if problems are detected at an early stage, we can push to have the charges dropped before you end up in court.

Our criminal law experts can also help you raise a defence to the charges; for example, by proving that you honestly and reasonably believed that the other person would not have objected to consuming the food or drink if they knew that the intoxicating substance was present.

You can also benefit from our insight and expertise if you simply wish to plead guilty to the charges.

Our lawyers are highly skilled in preparing persuasive sentencing submissions and will fight hard to ensure that you obtain the best possible outcome in your case by presenting your case in the most positive light.

For the best possible defence in your drink spiking case, get the criminal law experts on your side. Call us on (02) 9261 8881 and book your FREE first conference with us today.