As criminal lawyers, we are often asked what rights a person has in the face of violence and danger. In this article, we will discuss specifically what rights a homeowner may have when faced with an intruder. Understandably, many people have contemplated how far they would go to protect themselves, their loved ones, and their property in the event of unknown danger. Although a general right to self-defence exists, excessive or deadly force may in some circumstances, constitute a criminal offence.
THE LAW IN NEW SOUTH WALES
Whilst every state in Australia deals with this issue a little differently, the overarching principle is that self-defense must only be used where a person believes on reasonable grounds that it is necessary to do what they did in order to protect themselves, another person or their property. This can be found by reference to section 418 of the Crimes Act 1900 (NSW) and is summarised as follows;
A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment or protect property).
According to R v Katarzynski [2002] NSWSC 613, when assessing what is deemed to be both “reasonable” and “necessary”, the Courts are able to analyse and accept into evidence, subjective facts about the accused’s personal circumstances at the time of the offence. This could include for example, the mental state of the accused and whether or not his/her perception of danger directly influenced their response.
Once a claim of self-defence has been raised by using the test developed by R v Katarzynski [2002], wherein it was established that it solely the role of the prosecution to disprove it on the balance of probabilities by raising points of fact which show the conduct was not done out of necessity or reasonableness.
A COMPARISON WITH THE UNITED STATES: SELF-DEFENCE RESULTING IN DEATH
Now that we have established that self-defence may be used to protect yourself, another person and/or your property from an intruder, we must consider what would be deemed “excessive force” in the eyes of the law. Contrary to the laws of many U.S States, where deadly force is permitted to protect your home or remove an intruder, there is no law in NSW which directly deals with self-defence in the event of a home invasion or intruder. However, it should be kept in mind that although self-defence is a valid defence for murder charges, section 420 of the Crimes Act 1900 (NSW) limits the application of self-defence where a killing has occurred for the sole purpose of defending property or removing a trespasser.
In order to gauge what a “proportional response” would be in such circumstances; the law may take into account any of following factors:
- Whether the intruder possessed a weapon which could have been used to inflict harm;
- Whether the homeowner possessed a weapon which was disproportionate to the danger;
- Whether the homeowner was in fear for their life or the life of another;
- Whether the homeowner could have reasonably avoided causing serious harm or death;
- Whether the homeowner pre-emptively attacked the intruder;
- Whether the homeowner or intruder was affected by alcohol or drugs;
- Whether the homeowner attacked the intruder as they were fleeing; and/or
- Whether the homeowner intended to seriously harm or kill the intruder after any credible threat had dissipated.
A recent example of these factors at play is the recently concluded murder trial surrounding the killing of Ricky Slater after he had broken into the Hamilton home of Ben Batterham and his young family. After Mr Batterham discovered Ricky Slater in the bedroom of his seven-month-old daughter, armed with several knives and high on methamphetamines, a struggle ensured which led to Mr Batterham using a chokehold on Ricky Slater in the middle of the suburban street. After police were called and arrived on the scene, Mr Slater was arrested and conveyed to John Hunter Hospital in an unresponsive condition where he died the next afternoon due to deep bruising around his throat and a fractured larynx.
Mr Batterham was subsequently arrested and charged with the murder of Ricky Slater but was acquitted by a jury when they were asked to consider if Mr Batterham had intentionally caused the death of Ricky Slater after fleeing from the suburban home. The court heard and the jury agreed, that Mr Batterham’s response was not excessive upon finding Mr Slater in his daughter’s bedroom and that Mr Slater’s cause of death was not conclusive.
Should you be faced with the unfortunate circumstance of being charged as a result of actions done in self-defense, you need a competent and experienced criminal defence lawyer to defend your liberty and interests. Contact our office immediately to ensure you are getting the best criminal defence possible.
Read more about self-defence in one of our previous blogs “Raising self defence in criminal cases” .
CASE STUDY
Mr Michael Moussa, Principal Lawyer of National Criminal Lawyers® appeared for a man who was charged with reckless wounding. Reckless wounding is a criminal offence which carries a maximum penalty of 7 years imprisonment.
Our client was sitting in his chair near in his front yard when his neighbour complained about the loud music which was coming from the house. Upon a verbal confrontation the neighbour approached our client’s property with a 9 inch machete threatening to kill our client which escalated closer to the house porch. Our client being a professional MMA fighter took hold of the knife and in the process, struck the neighbour with the knife causing a laceration on the right-hand side of the neighbour’s face which resulted in him needing approximately 24 stitches.
The neighbours wife immediately called police who attended the house. Upon taking statements from the parties concerned and assessing the injury to the neighbours face, police charged our client and conveyed him to Parramatta Police Station where Michael Moussa of National Criminal Lawyers® was contacted.
Upon taking instructions from our client and reading the police facts, it became evident that police had failed to take the statement of a crucial witness who our client believes saw the incident unfold. Michael Moussa subsequently made representations to New South Wales police requesting they make further enquires to identify the witness which would support the raising of self-defence. These representations included the assertion that our client acted in self-defence which was prompted by the neighbours aggressive verbal confrontation and possession of the large knife in his hand.
After numerous exchanges with New South Wales Police regarding the weakness of the prosecution case, the charges were withdrawn and our client was able to return home unencumbered by the stress of possible court proceedings.