How Far Can I Go In Defending Myself And My Home?
A murder charge brought against a man alleged to have confronted and killed a person breaking into his home raises interesting questions about what the law says about how far we can go in defending ourselves or against intruders in our home.
NSW law states people are not criminally responsible for offences carried out in self-defence. But what does that mean?
Section 418 of the Crimes Act 1900 states a person carries out conduct in self-defence if the person believes the conduct was necessary to defend themselves or another person, prevent the unlawful deprivation of liberty, protect property from unlawful theft, damage, or to remove a person committing criminal trespass.
But, and this is a big but, any action taken in self-defence must be a “reasonable” response by the person in the circumstances as he or she perceived them.
Jessica Mackay, criminal law expert at Stacks Law Firm, says that it boils down to whether the person believed their action was necessary in self-defence, and what the court decides was a “reasonable” degree of force given the circumstances.
“It would be difficult to claim self-defence if you pursue an intruder out of your home, down the street and then attack them,” Ms Mackay said.
“The situation could be different if you are confronted by an armed intruder in the middle of the night, and you are genuinely afraid that you or your family will be attacked if you don’t stop them. It all depends on the circumstances, and every case is different.”
In court once a charged person claims self-defence it is up to the prosecution to prove beyond a reasonable doubt they were not acting in self-defence. A judge or jury will have to assess whether the action was “reasonable” given what led up to it, whether there were threats or provocations, and whether the accused felt it was necessary and they had no choice.
In America some States permit homeowners to shoot intruders regardless of whether they posed a physical threat.
“NSW law does not allow you to kill somebody, just because they broke into your home. But claiming self-defence is complicated and it would certainly be wise to get advice from an expert in criminal law before going down that path,” Ms Mackay said.
“In NSW law any action taken in self-defence must have been proportionate to the threat perceived by the accused. A person cannot claim that they acted in self-defence if they intentionally or recklessly killed a person only to protect property, or to prevent or stop criminal trespass.”