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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
Criminal Code (Drink Spiking) And Other
Acts Amendment Bill 2006
Explanatory Notes for Amendments to be
moved during consideration in detail by The
Honourable Attorney-General, Minister for
Justice and Minister for Women MP
Title of the Bill
Criminal Code (Drink Spiking) and Other Acts Amendment Bill 2006
Objectives of the Amendments
The amendment omits clause 4 and substitutes a new clause 4, thereby
substituting a new section 316A (amended section 316A).
Amended section 316A does not contain the defence of "prank" as was
contained in subsection (6) of the introduced provision. However, the
amended offence provides an excuse for an accused who adds alcohol to a
drink of another person but at the time honestly and reasonably believes
that the other person would not have objected to the addition of the alcohol.
Amended section 316A contains an extended definition of the phrase
"stupefied or overpowered" to clarify that the offence will apply in
circumstances where the accused's intent was to intoxicate another person
and will apply in circumstances where the accused administers or attempts
to administer, in drink, a stimulant to another person.
Achievement of the Objectives
Although Queensland's Criminal Code contains a number of offences
relevant to the act of drink spiking (sections 218(c), 316, 317, 322 and
323(b)), a potential gap remains, particularly when the spiking agent is
alcohol. Section 316A will fill that gap, for example, it will apply to a
person who spikes the drink of another person, intending that other person
to become intoxicated. The insertion of this offence will not derogate from
the liability of an offender for more serious existing offences in the Code.
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
Consistency with Fundamental Legislative Principles
The amendments are consistent with fundamental legislative principles.
Consultation
The Department of Premier and Cabinet was consulted in relation to the
amendments.
Notes on Provisions
Clause 4 Insertion of new s 316A: This clause omits clause 4 and inserts a
new clause 4 which creates the offence of Unlawful drink spiking.
Pursuant to sections 316A(1) and (3) the offence applies to a person who
administers, or attempts to administer, in drink, a substance to another
person without that other person's knowledge of the presence of the
substance (whether at all or in the quantity added), with intent to cause the
other person to be stupefied or overpowered. It is immaterial whether the
substance is capable of having the effect intended and it is immaterial if the
victim is a person other than the intended victim.
If the substance is alcohol, subsection (2) applies, which modifies section
24, to provide an excuse from criminal responsibility for an accused who
was acting under an honest and reasonable belief that the victim would not
have objected to the addition of the alcohol.
Pursuant to subsection (4) (b), it is irrelevant if the victim was already
stupefied or overpowered to some extent before the drink spiking. Further,
subsection (4) in conjunction with the definition of "circumstances" makes
clear that even if the victim intended to become stupefied, they are entitled
to become stupefied on their own terms (that is, timing, place, condition or
way of stupefaction).
Subsection (5) provides that the offence does not apply to an act lawfully
done in the course of the practice of a health professional, the carrying out
of a duty under an Act or the performance of the responsibilities of a parent
or carer.
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Criminal Code (Drink Spiking) and Other Acts
Amendment Bill 2006
Subsection (6) defines an attempt to administer a substance for the purpose
of the offence (and section 4) as including adding a substance to drink in
preparation for the administration of the substance.
Subsection (7) defines "adding a substance" to drink to include: "cause to
be added to drink" (therefore, the offence will extend to the circumstance
where the offender has the drink made up by a bartender); substitute drink
with other drink containing the substance (for example if the offender
switches drinks with the victim); or takes any step to provide drink
containing the substance instead of other drink.
The phrase "stupefied or overpowered" is defined to include a state of
intoxication caused by alcohol, drugs or another substance. It also extends
to behavioural change caused by a dangerous drug, whether or not the mind
is otherwise affected. The extended definition ensures that the provision
will apply to circumstances where stimulants are used as the spiking agent.
© State of Queensland 2006