Spiking Drink or Food

In NSW it is an offence to put a drug in or ‘spike’ a person’s food or drink without their knowledge. The offence is known as spiking drink or food. The maximum penalty for spiking drink or food is two years imprisonment or 100 penalty units, or both.

There are more serious charges that can be laid if the spiking was for the purpose of committing a serious offence, such as robbery or sexual assault.

The Offence of Spiking Drink or Food

The offence of ‘Spiking Drink or Food is contained in s 38A(2) of the Crimes Act 1900 (NSW) and states:

A person:

Who causes another person to be given or to consume drink or food:
- Containing an intoxicating substance that the other person is not aware it contains, or
- Containing more of an intoxicating substance than the other person would reasonably expect it to contain, and

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

What Actions Might Constitute Spiking or Drinking Food?

Examples of ‘spiking drink or food’ include:

Putting two MDMA in your friends beer because you think it will be funny when they get really messed up;
Putting horse tranquiliser (ketamine) in a restaurants flour; or
Ordering your friend a tripple shot vodka lemonade when they asked you to get them a single shot vodka lemonade because you want them to get really drunk.

What must be proven?

To convict you of ‘spiking drink or food’ the prosecution must prove each of the following matters beyond reasonable doubt:

That you caused a person to be given or consume a particular food or drink;
That food or drink contained an intoxicating substance (or a greater dosage of the intoxicating substance);
That the person was not aware of the presence of the intoxicating substance (or not aware of the greater dosage); and
That you intended to cause some harm to that person.

Possible defences

The most common ways to defend this charge are:

To argue that the substance was not an intoxicating substance;
To argue that you did not cause the intoxicating substance to be put into the other persons food or drink;
To argue that you did so with the consent or knowledge of the other person;
To argue that your act did not intend to cause harm to the other person; or