Legally Using Self Defence Against Home Intruders

Legally Using Self Defence Against Home Intruders

One area of the law which criminal lawyers at are often asked their advice on is self-defence, and in particular, whether or not it is legal to use self defence against someone who has broken into your home. As is often the case when it comes to criminal law, the answer a criminal lawyer might give you is, ‘It depends’.

That might not seem particularly helpful to a lot of people, but the simple fact is that as the law currently stands in Australia at the moment, when it comes to self-defence in your own home, or anywhere else for that matter, there is no precise answer.

For example, whether or not someone has stolen something, or have driven at excessive speeds tends to be a matter of fact. In other words, they took something from a store and did not pay for it is a fact, or that they drove 20 miles per hour over the speed limit is also a fact.

Therefore, when those individuals are taken through the criminal justice system, the decision with regards to their guilt is fundamentally not open to interpretation because the evidence against them is explicit.

With regards to self-defence and whether someone was either justified in using it, or if they did so to a degree which is lawful, is far more open to a subjective opinion, should they ever be tried for doing so unlawfully.

The law with regards to self-defence states that it can be used if that person is of the belief that it is necessary to

  • Defend themself
  • Defend someone else
  • Protect property from being stolen, destroyed, or damaged unlawfully
  • Prevent themselves or another person being unlawful held captive
  • Prevent trespassing
  • Remove someone from a property where they are trespassing

You will note that some of the allowable reasons for self-defence do not always mean that the person carrying it out is the one under threat. It can be used to come to aid and protect someone else, such as a member of your family. The list also includes reference to scenarios where it is a property that is under threat and not a person.

This is where the right to self-defence in your own home should an intruder enter is covered. However, there needs to be distinction about what level of self-defence may be justifiably used when defending one’s own self from physical harm, versus defending your property from someone trying to steal a portable TV, for example.

A court might reasonably take the view that in defending yourself, and where you may have been in fear for your life that the level of force you use could conceivably cause serious injury to the person attacking you.

That could even potentially go as far as lethal force if that were the only way to defend yourself against lethal force being used against you. Compare that with someone trying to steal a portable TV from your kitchen. Any justification of using excessive or lethal force is going to be looked upon by any court as unacceptable.

However, if that same burglar was standing in your bedroom in the middle of the night, to the extent that you feared they were going to cause harm to you or your family, that is another circumstance altogether.

And that is the way the law, and the courts in particular view the use of self-defence in the home. They take each circumstance and apply whether the level was justified in the circumstances.