This article is for general information only and should not be relied on for specific legal advice.  The author will not be held responsible for any action that a person takes as a result of interpretation of the contents of this article.  It is important to seek specific advice from a qualified and experienced lawyer for any legal problem.   

What is Drink Spiking?

In Queensland, it is an offence to administer or attempt to administer a substance to another person with intent to cause the other person to be stupefied or overpowered, which is referred to as Drink Spiking.  The term ‘stupefied or overpowered’ includes a state of intoxication caused by alcohol, drug or another substance, and a behavioural change caused by a dangerous drug whether or not the mind is otherwise affected. 

It is irrelevant the quantity or nature of the substance administered to the drink.  Further, it is irrelevant if the person intended to take the drink actually takes the drink or another person does.  

The Drink Spiking Law:

Section 316A of the Criminal Code (Qld) 1899 states; 

(1) A person who administers, or attempts to administer, in drink a substance to another person (the “other person” ) without the other person having knowledge of the substance with intent to cause the other person to 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 24 only, the circumstances in 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—         

(a) 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; 

(b) whether the substance is capable of having the effect intended; 

(c) whether a particular person is intended to be the person to whom the substance is administered or attempted to be administered.  

Elements of the Drink Spiking Offence:

It is the duty of the prosecutor to prove beyond a reasonable doubt that the Defendant has committed the Drink Spiking offence.  Every charge has a number of elements that the Prosecutor must prove beyond a reasonable doubt.  For the charge of Drink Spiking the Prosecution must prove; 

  1. Defendant – The Prosecutor has to prove the identification of the offender; 
  2. Administers or attempts to administer; 
  3. In a Drink; 
  4. A Substance to another person; 
  5. Without Consent – Without the other person having knowledge of the substance; 
  6. Intent – With intent to cause the other person to be stupefied or overpowered 

Maximum Penalty for Drink Spiking:

The maximum penalty for drink spiking is 5 years.

Convictions:

In Queensland, if a person is convicted of Drink Spiking, then the court could impose one of the following penalties:

  • Jail (suspended, parole or actual time);
  • Intensive Corrections Order;
  • Probation;
  • Community Service Order;
  • Fines.

The actual penalty will depend on the circumstances of the matter including the seriousness of the offence and the individual circumstances and background of the Defendant.

Possible Defences:

There are a number of defences available to charges at law.  Not every defence is available to every charge.  You will need to seek specific legal advice to see if you have a defence available to you for this charge.  Some of the common defences available in criminal charges are;

  • Necessity;
  • Mistake of Fact;
  • Self Defence or defence of another person;
  • Intoxication;
  • Provocation;
  • Accident;
  • Duress;
  • Compulsion;
  • Insanity;
  • Automatism

Which Court will your matter be heard in?

The charge Drink Spiking will ordinarily be heard in the Magistrates Court in Queensland.  The charge will be heard and determined by a Magistrate alone whether you plead guilty or not guilty.  There is no jury in the Magistrates Court. 

The Defendant may however elect to have the matter heard in the District Court.    

What should I do if the police want to speak to me about a Drink Spiking allegation or if I am charged with Drink Spiking?

You have the right to remain silent. You DO have to provide police with your name, date of birth and contact details. You should NOT answer any questions, make any statement or participate in any interview with the police. You should be polite to the officer but insist that you want to talk to your lawyer. You have the right to telephone a friend, relative or lawyer.  

Call an Expert 

If you are charged with a criminal offence, it is very important that you seek immediate legal advice. Our team at Brooke Winter Solicitors can give you over the phone advice. We have a solid reputation as expert Criminal Lawyers and can represent you in court. Call us at 1300 066 669, or contact us online if you have any questions. We can assist you no matter where you are located and can appear in every court.