Clarity Law

Unlawful drink spiking is a serious criminal offence in Queensland and occurs in circumstances where a person or persons, attempts to incapacitate, stupefy, or overpower another person by administering a substance to another person.

What does the law say?

1. A person who administers, or attempts to administer, in drink a substance to another person (the "other person" ) without the other personhaving knowledge of the substance with intent to cause the other personto be stupefied or overpowered is guilty of a crime and is liable to imprisonment for 5 years.

2. If the substance is alcohol, for section 24only, the circumstancesin which the other person is taken to have knowledge of the alcohol include where the other person would not object to the administration of the alcohol if the other person had actual knowledge of it.

3. The following matters are immaterial—

   1. whether the lack of knowledge of the substance is lack of knowledge of the presence at all of the substance or of the particular quantity of the substance;

   2. whether the substance is capable of having the effect intended;

   3. whether a particular person is intended to be the person to whom the substance is administered or attempted to be administered.

4. A reference to causing the other personto be stupefied or overpoweredis—

   1. a reference to causing the other personto be stupefied or overpoweredin circumstances where the other person is not intending to be stupefied or overpowered at all; or

   2. a reference to causing the other personto be further stupefied or overpoweredin circumstances where the other person is not intending to be further stupefied or overpowered at all or to the extent intended by the person who administers, or attempts to administer, the substance.

5. This section does not apply to an act lawfully done in the course of the practice of a health professional, the carrying out of a function under an Act or the performance of the responsibilities of a parent or carer.

6. In relation to an attempt to administer a substance, for this section and section 4, attempt includes adding a substanceto drink in preparation for the administration of the substance.

What does the prosecution need to prove?

The prosecution must prove beyond a reasonable doubt the following, to succeed in a prosecution for this offence:

1. The accused administered, or attempted to administer, in drink a substance to another;

2. The other person had no knowledge of the substance; and

3. With the intent to cause the other person to be stupefied or overpowered.

It is not necessary for the police to show that the defendant knew that the substance the defendant intended to use was able to affect the person, nor that the substance applied to the drink was in fact going to the intended person.

Are there any defences?

At law, there are a wide range of defences to criminal charges, however not every defence is available to every charge. Examination of available defences depends on the context of the alleged offending, some examples that may be available are:

• Duress;

• Identity;

• Lawful authority to administer medication (such as by a health care professional in a medical setting, or a parent/carer);

• Intention – Where the prosecution cannot prove the defendant intended to commit the offence; and

• Honest and reasonable mistake of fact.

What court will hear my case?

This matter, like all criminal matters will start in the Magistrates Court of the jurisdiction where the offence occurred. This offence can be heard in the Magistrates Court on the defendants election, otherwise it will be committed and dealt with on  indictment in the District Court.

What does this charge look like?

Example 1: Donald is at a party with some of his university classmates and is having a good time. Donald recreationally takes MDMA and sees, Candance a girl he has a few classes with across the room. Donald decides Candace is uptight and needs to let loose. He offers to get her a drink, which she agrees to.  Donald places some MDMA into Candace’s drink and she drinks it. Candace experiences the associated high of MDMA and has an adverse reaction.  One of Donald’s friends told Candance’s friend Jane what he had done and Candance phones the police. Candace has a drug test administered and tests positive to MDMA. Police, after interviewing Donald’s friend and Candace, taking their statements make the decision to charge Donald with unlawful drink spiking. The police believe they can prove that Donald has administered MDMA in Candance’s drink, without her knowledge with the intent to cause that person to be overpowered by the substance.

Example 2: Joe is at a nightclub on Friday night, Joe believed he purchased GHB from a friend of a friend. Joe stands at the bar in the club and waits for a person who takes his interest to stand next to him. A woman next to Joe turns around to talk to a friend and leaves her drink momentarily unattended. Joe seeing his opportunity pours a small capsule of liquid into the woman’s drink.  Unbeknownst to him, the venue security was monitoring the CCTV and saw what occurred. They call the police and urgently stop the woman drinking the drink, and Joe from leaving.  The police are called, review the footage, and take Joe into custody and take the drink for testing. Joe gives an interview and makes admissions to police. Police test the drink and do not find any trace of the dangerous drug GHB or indeed any substance capable of stupefying. Police however still charge Joe as it is not necessary for Joe to have knowledge about the substance he attempted to administer.

The above are not an exhaustive list of ways this offence can arise. This offence can arise where a person gives alcohol to another person, when that person was choosing not to drink and was not aware they were being given alcohol. The court takes this offence very seriously, and often takes the view that it is an enabling offence to other very sinister offending.

Do I need a lawyer?

Do not attempt to represent yourself in the court on an unlawful drink spiking charge.  Based on the seriousness of the offending, including if other associated offences are charge, engaging an experienced criminal lawyer will help you get the best available outcome.  If the court records a conviction against you, it may affect your ability to travel internationally and to gain employment.

Conclusion

This article is by no means a complete breakdown of the serious offence of unlawful drink spiking. This article serves to give a person an understanding of the offence, illustrating how it may come about. This is not a matter where you should attempt to undertake it yourself. If you require advice about this type of matter, feel free to contact clarity law for an obligation free consultation.

Engaging Clarity Law to act for you

Engaging us gives you the best chance at trying to avoid serving time in prison.   We are one of the leading criminal law firms in South East Queensland.  Just some of the benefits of us acting for you include:

1. we know the judges and what they want to hear to give you the best outcome

2. we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence

3. we are there to help you through the process and make everything as stress free as possible

4. engaging us shows the court you are taking your charges seriously

5. you will be fully informed of what is to happen in court and what this means for you after court

6. unlike the police or the Judge, we are there to look after you, your privacy and your interests

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