An Intruder Is In Your Home -- This Is How You Can Defend Yourself Under Australian Laws

30/03/2016 3:04 PM AEDT | Updated 15/07/2016 12:51 PM AEST
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BERLIN, GERMANY - JUNE 27: Posed scene of a man breaking into an apartment on June 27, 2014, in Berlin, Germany. The photo symbolizes the increasing risk of burglary in Germany. (Photo by Thomas Trutschel/Photothek via Getty Images)

Details are emerging of a Newcastle homeowner who allegedly killed an intruder who was found near his child's bedroom.

Benjamin Batterham is set to face court this week charged with the murder of intruder Ricky Slater, more than 65,000 Australians have signed a petition calling for the homeowner's release.

For many signatories commenting on the petition, their support boils down to the question: 'what would I do if someone breaks into my house?'.

University of Adelaide law lecturer Kellie Toole said the question of defending one's home was not straightforward.

"It’s tricky, especially in Australia," Toole told HuffPost Australia.

"We idolise the concept of the house -- that a man’s home is his castle and the idea of defending your home is very important but some say our laws, certainly in South Australia, provide a bit too much flexibility."

Australia's legal rulings on intruder assault and death come down to the concept of self defence and the law doesn't always err on the side of the homeowner.

In 2012, NSW courts awarded a man $50,000 after he was caught breaking into a pub and bashed by the licencee.

Joshua Fox, who was 16 at the time of the crime, was caught breaking into Peakhurst Inn in Sydney, where licencee Honeheke Newton lived with his wife. He hit the teenager with a bat, fracturing his forehead.

NSW District Court determined the licencee used "excessive force" and as well as paying the victim, was also ordered to pay the victim's mother $18,500 for the trauma of seeing her injured son.

bill potts self defence criminal lawyer

Lawyer Bill Potts defended a man who shot an intruder dead.

In 2011, Gold Coast man Kane Robert Cook was charged with manslaughter after shooting an armed intruder dead in his home. Police confirmed four men were waiting for Cook in his home, and after a scuffle, he shot one man in the leg with a World War II Luger 9mm pistol. The intruder died of his injuries and the ensuing case took two years to resolve.

When charges were eventually dropped, Cook's criminal lawyer Bill Potts told 4BC radio it was unjust.

"How could the justice system find a man defending who his own house and own life against armed masked robbers find himself charged with manslaughter of one of them?" Potts said.

"He's had a life sentence hanging over his head for the last two and a half years."

Then there's an elderly West Australian man who shot an intruder in 2009 but was not charged as it was determined he used appropriate force to protect himself and his bedridden wife.

Toole said each state and territory had subtle differences when it came to laws around self defence.

"Self defence in a home invasion is treated similarly in all jurisdictions -- there are some quirks but generally, the homeowner has to be acting in self defence because they fear for their safety or their family's safety and they need to have a reasonably proportionate response to the threat," Toole said.

"Except in South Australia, where one particular case where an elderly man shot an intruder prompted a change. Now a homeowner's response doesn’t have to be reasonable or proportionate."

The case was that of tow-truck driver Kingsley Foreman who shot a robber, armed with a replica pistol, after he stormed into Foreman's bedroom.

Jurors were told the robber was shot in the back, but that Foreman feared for his life, as well as his invalid wife. After a four-day trial, charges of murder and manslaughter were dropped and Toole said the case turned the spotlight on South Australia's laws of self defence.

"The case set a precedent that someone could be acting in self defence but the response is disproportionate to the threat," Toole said.

No matter where you live in Australia, Toole said self defence was dependent on fearing for your safety.

"You have to be acting in self defence -- and that means you need to fear for your life, or that your wife is going to be kidnapped or stabbed.

"You have to be acting for a defensive purpose, not because you're angry or you fear your property will get stolen."



What self defence means in your region

NSW

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

Queensland

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

Victoria

A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

A person carries out conduct in self-defence if:

(a) the person believes that the conduct is necessary in self-defence; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them.

(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.

Western Australia

A harmful act done by a person is lawful if the act is done in self-defence if:

(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and

(b) the person’s act that causes the other person’s death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be, the person is guilty of manslaughter and not murder.

A person’s harmful act is done in self-defence if:

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

(5) A person’s harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.

(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.

Northern Territory

A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

A person carries out conduct in self-defence only if:

(a) the person believes the conduct is necessary:

(i) to defend himself or herself or another person; or

(ii) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(iii) to protect property from unlawful appropriation, destruction, damage or interference; or

(iv) to prevent criminal trespass to any land or premises; or

(v) to remove from any land or premises a person who is committing criminal trespass; and

(b) the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) However, the person does not carry out conduct in self-defence if:

(a) the person uses force that involves the intentional infliction of death or serious harm:

(i) to protect property; or

(ii) to prevent criminal trespass; or

(iii) to remove a person who is committing criminal trespass; or

(b) the person is responding to lawful conduct that the person knew was lawful.

Tasmania

A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use.

South Australia

It is a defence to a charge of an offence if:

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and

(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist 1 .

It is a partial defence to a charge of murder (reducing the offence to manslaughter) if:

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but

(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. 2

For the purposes of this section, a person acts for a "defensive purpose if the person acts:

a) in self defence or in defence of another; or

(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.

However, if a person:

(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or

(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,

the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.

If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.


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