Is It Legal To Kill Home Invaders?

Late in the night, you wake up and have an insatiable urge for water. You gingerly slip out of bed so to not wake your partner and make your way to the kitchen. As you enter, you see a masked figure who has just made his way into the house through the unlocked window above the sink. The first thing you think about is the safety of your family. The second thought you have is reaching for the kitchen knife right next to you. So is it legal to kill an intruder in your own home?

Burglar image from Shutterstock

"A man's home is his castle." This proverb is pervasive in the USA to express the belief that every person has the right to personal privacy and security in their own home. In many states in the USA, a person can use lethal force to protect their family and home without facing legal prosecution. This is called the Castle Doctrine.

Over here in Australia, we don't have anything like the Castle Doctrine but, under criminal law, self-defence is a totally legitimate excuse when defending in court against charges of causing bodily harm or death.

Broadly speaking, this is valid across all states in the country. If you claim you acted in self defence in a murder trial, the prosecution will have to prove beyond reasonable doubt that you didn't, otherwise it would result in a "not guilty" verdict.

With that said, each state has their own amendments when it comes to what constitutes as self defence. For example, under section 418(2) of the NSW Crimes Act 1900, a person is not guilty of an offence if they were:

(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.

South Australia's law on this is also quite similar, as stipulated in Section 15A of the SA Criminal Law Consolidated Act 1935 and the same goes for Western Australia under its under Criminal Code Amendment (Home Invasion) Bill 2000 along with Tasmania based on Section 39 of its Criminal Code.

In New South Wales and South Australia, if excessive force was used and an intruder is killed in the process, in some circumstances the charges can be reduced from 'murder' to 'manslaughter'. This, however, is not applicable in Victoria, under Subsections 9AC and 9AE of the state's Crimes Act.

Queensland's QLD Occupants (Home Invasion) Protection Bill 2002 Part 3 Section 10 goes a bit further, in that it provides immunity from civil liability for people who incur injury to intruders:

(2) The occupant or invitee is not civilly liable for any personal injury or property damage suffered by the intruder, or by anyone else claiming under or through the intruder, caused by, through or in connection with the occupant or invitee acting against the intruder in the way authorised.   “personal injury” includes- (a) fatal injury; and (b) prenatal injury; and (c) psychological or psychiatric injury; and (d) disease.

In terms of criminal proceedings, it is lawful for an occupant of a dwelling house to use any force or do anything else the occupant believes is necessary under particular circumstances, including "to prevent an intruder from breaking or entering the dwelling".

So yes, it is legal for you to fight off home intruders but unless it's a "you or them" situation, try not to kill them.

This story has been updated since its original publication.


Comments

    (2) The occupant or invitee is not civilly liable for any personal injury or property damage suffered by the intruder:
    (d) disease.

    Totally justifies my keeping a jar of cholera near the back door.
    So, are you feeling lucky, punk ? Huh ?

    That aside, and I'm sure this article will bring out the armchair lawyers in all of us, but I was always under the impression that legally, if you have the means to remove yourself from a situation of harm, then it is expected that you do so.
    Bashing a person simply on the grounds of them being in your property may have more serious ramifications than initially appears, but I'm open to more educated advice.
    As always, precedent and interpretation are the key aspects in legal matters.

      It's nice to see that QLD actually has protection built in for the home owner. One of the rare cases where more legislation is a good thing.

      As for the "bashing someone on your property" comment, like the article says it all hinges on two things your perception of risk and reasonable force. If there is an intruder in your home and they're armed you would quite reasonably perceive that you're in danger. If you hit them on the head with a frying pan that would probably be reasonable force. However, if after you knocked them out with the frying pan you continued to club them into a bloody, unrecognisable pulp that wouldn't be.

      It really hinges a lot on the perceived threat the intruder and whether your action is in proportion to that. An unarmed kid in the backyard is a lot less threatening than a bug masked guy with a knife or gun in your bedroom in the middle of the night.

        A lot of people seem to hold the false assumption that once someone is on their property, they have free reign to do what they want and ignore our laws under the assumption of "Self Defence"

          I suspect a lot of people get their ideas from movies or tv, often from the US. Which of course has different laws from us in the first place. But hell, if you look at real life cases in the US you often hear about people being charged for injuring or killing a burglar. And even worse getting sued to oblivion for it as well.

          I must admit though, when I was doing self defense lessons the instructor made a good comment. Something along the lines of "it's better to be alive and worrying about being arrested than dead".

    Yeah, that's covered by requiring it to be a reasonable response in the circumstances. There's no hard and fast rule as every situation is different and even in seemingly clear cut cases of self-defense you may still get prosecuted.

    More info; http://www.findlaw.com.au/articles/4542/australian-self-defence-laws-in-criminal-matters.aspx

      Being prosecuted is fine, if someone is injured or killed it should be looked at. It's only a problem if you actually get convicted. Well I suppose being prosecuted is a problem because it'll probably cost you money to appear (lawyers, time of work etc).

    i have various items around the house, and have seen enough Jackie Chan movies to realise that almost anything can be used as an effective weapon. i wonder how they distinguish reasonable force in court....

      If someone drunk comes in thinking it's their house and fall asleep on the couch, it's probably not OK to bash them over the head with a baseball bat.

      On the other hand, if you hear bad dudes talking about kidnapping your kiddo, it's probably OK to put a large knife through their ribcage from behind.

        You and me, we can be friends.
        If a dude was asleep on my couch. Pretty sure id still use force. Only from the point of view that my wife and daughter are in the house and i need the upper hand for when the bastard wakes up. Probable would punch him through a phone book. Or bind him with rope while he slept then dragged his ass outside.
        As for kidnappers, i own lots of axes due to the many gumtrees on my property. Even the blunt side of one of the bastards would hurt like hell.

          You'd ring the police from another room and just leave the drunk guy alone. At most maybe sit nearby armed with a blunt object while you wait for the cops to show up. Hitting someone who is asleep/passed out would probably be frowned upon.

      Reasonable force is pretty much, they threaten you, and you knock them out. If you continue to hit them while they are unconscious, then that is unreasonable. Same with weapons. If you can deal minimum lasting damage IE using a bat instead of a knife or razor, that's better. If they surrender, you can't hit them, but you can detain them under the civilian detention law

        There is no such thing as "knocking someone out" in real life. If the victim does not regain consciousness shortly then you have caused a serious traumatic brain injury.

          He was simplifying. But it probably would have been better to say "if they threaten you, you can strike back until they STOP attacking you". Whether that means they're dead, unconscious or just standing there saying "whoa I give up" doesn't really matter.

          Note: By threaten I mean you think you're at risk of serious injury or death if you don't act.

      At common law it's how much force you reasonably expect to receive, at least in SA. So if you're afraid of being hit, you can hit.

      If they are holding a knife or you're afraid for your life, lethal force could be considered reasonable.

    Surely in this sort of situation, rational decisions go out the window? I'd have one of 2 reactions in this situation; 1) hide under the bed/run away or 2) go into survival mode and attack the intruder. It's a classic fight/flight reaction situation and surely the law must consider this?

    I doubt anyone is going to consider the legal ramifications in this situation

      That's true, but it helps if we're talking about preparations. For example, lets say you decide to sleep with a knife beside the bed just in case someone breaks in. That might be looked upon unfavourably in court.

        That's why if you hear some one breaking in run to the kitchen. It is reasonable to have a knife at hand while you are in the kitchen.

          I have a good solid torch/flashlight beside the bed. Always prepared for blackouts and useful as a club if needed. They'd need to get past Rex (German Shep) first, which would be unlikely.

    Maybe I'm wrong but my first thought was....well no one knows they are here, the law then doesn't need to know, and my family get to eat for free for a month.....just saying.

      LOL I came across this article to comment about eating intruders, only to find I'd commented on this almost 3 years ago....

      I need to change my diet.

        LOL, i do that frequently, i've even written an almost identical comment a year or two alter due to a republished as new article, found out before posting though when finishing reading the comments.

        It must be a slow news day, do they have editors that comb through old articles to find ones to resurrect ? I think they should have a "Lifehacker Defrosted:" tag for these stories that are re-posted.

    Your comment there on QLD law is completely incorrect. You have quoted a section granting immunity from civil prosecution, not criminal. Completely different.

    The law you quote essentially protects you from being sued by someone (or their family) for damages, but police (the crown) can still prosecute for criminal offences ie. Murder, manslaughter, assault etc. I don't know the exact relevant law, but as your post stands, it is incorrect.

      The article points out that the QLD law mentioned is for Civil Liability (or was it edited after your post)?

      Civil liability is actually a really big issue. There have been quite a few reports of burglars suing homeowners because they were injured while breaking into the house. So it's nice to see that is covered.

    A home invader is an invader of the privacy of someone's house and that invader has no right to be there. As it is a 99 out of 100 chance that the invader is out to burgle the property, then he is asking for it. No holds barred. In Islam it is known that a friend knocks on your front door and announces himself. If someone comes in through the windows or the back door, then he faces the chopping block and hope to high heaven that the house is not that of a Ninja, a Bushido fighter or a followers of Islam ! Or even Bikies ! In Indonesia and Malaysia, that thief sometimes emerges from the house as though he has been in Iraq ! Hands/fingers broken off, face disfigured, pants torn up and sometimes his ears are ripped off too !. No, no. No murdering that burglar for pete's sake. Bash him up but leave it at that.

    You know there is a state called WESTERN AUSTRALIA?!?!

    WA Home Invader Act:

    (1) It is lawful for a person (“the occupant”) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary

    (a)to prevent a home invader from wrongfully entering the dwelling or an associated place;
    (b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place;
    (c)to make effectual defence against violence used or threatened in relation to a person by a home invader who is —
    * (i)  attempting to wrongfully enter the dwelling or an associated place; or
    * (ii)  wrongfully in the dwelling or on or in an associated place;
    or
    (d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

    A person is a “home invader” for the purposes of
subsection (1) if the occupant believes, on reasonable grounds, that the person —
    * (a)  intends to commit an offence; or 

    * (b)  is committing or has committed an offence, 

    in the dwelling or on or in an associated place.
    The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant’s authority.
    Section 250 applies to the authorisation conferred by subsection (1)(c).
    This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.
    In this section — “associated place” means —
    * (a)  any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and 

    * (b)  if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another; 

    “offence” means an offence in addition to any wrongful entry; “place” means any land, building or structure, or a part of any
    land, building or structure.
    [Section 244 inserted by No. 45 of 2000 s. 4.]

    http://www.parliament.wa.gov.au/Parliament/Bills.nsf/95E37AA349C90BD14825693E000A9B6B/$File/Bill005-1.pdf

    UNLESS you're in Victoria where you'd probably be jailed and the bloke who tried to break into your house gets compensation of somekind....

    Old saying, "Better to be judged by 12, than carried by 6." I'll do whatever it takes to make sure I'm on the winning end of any fight with an invader inside my home.

    Worth adding that, generally speaking, assault begins the minute you are made to feel afraid, and you're entitled to defend yourself from that point on.

    If you repeat "I was genuinely afraid, and used as much force as I thought reasonable to defend myself" before being detained, and nothing else, you'll make it that much harder for the cops. Learn it by rote so you can parrot it under stress.

    And lawyer up. Always. Do not talk to police more than you have to, which generally extends to name and address. Nothing more without representation.

    A lot of people ignorantly seem to think the right to self defence means they can ignore all laws and do what they want to an intruder.

    If you stopped an intruded but then proceeded to beat the guy to death, You would rightly so be charged with murder.

    The right to self defence does not give you the right to senselessly murder someone. Take for example recently where a man was charged with murder because he chased the robber down the street to beat him to death. Thats not self defence. He deserves to rot in jail.

      Definitely, I don't begrudge the guy chasing the robber down. But only to stop him. As soon as it escalated to assault and death then he was always going to be in trouble.

      I think it's also super hard to judge how much damage you may cause if you hit someone (look at the people who die in one punch attacks). So it's much harder to defend "I chased someone down and hit them" than it is to defend "they were attacking me so I hit them".

        Just remember that if they are dead, they can't give testimony.

          No they cant, But the forensics and pathology team will do it for them.

            To a degree. Obviously you will try to perform CPR, not leave him where he fell. Make sure the wounds are not on the back of the head (or not all "he kept trying to get up" etc).

      I just dont understand this mentality. The person who broke into your home made a choice. He *chose* to do that knowing you might be armed and would likely be very afraid when you found an intruder in your home. He could have easily avoided injury or death simply by *not* breaking into your home.

      I live in Kentucky in the USA. Recently we had two escaped convicts being tracked through our neighborhood. You know what neither of them did? Break into any homes. I believe the numbers hover around 60-70% of home owners in the area being armed. Those are poor odds for an unarmed escapee who is trying to avoid attention instead of drawing it.

      Another incident happened a few counties over a decade ago. There was a rash of home invasions. In one the occupant was unarmed and killed. In a home invasion by the same pair a few weeks later the homeowner was armed and the two invaders, well, lets just say their no longer invading homes.. the homeowner was never charged. Also, the home invasion thing kind of stopped in the area after that.

      Expecting the homeowner to converse with the invader to gauge his level of violent intentions is foolish and dangerous. A young fit man can cross the room in seconds, faster then many people could even raise and fire a gun, much less respond with a melee weapon. That is the main reasoning behind castle doctrine laws, that you put yourself at extreme risk trying to cause minimum damage to a potentially murderous intruder. That intruder made his choice outside your home. Whatever happens inside your home is his fault, brought on by *his* conscious choice to break in.

        This is an AUSTRALIAN article about AUSTRALIAN laws.

        We dont have your "but muh guns and freedums" views about home defence.

        Try to stay on topic and relevant next time. Unlike the USA, we dont have lunatics running around with guns.

          * "We have less lunatics running around with guns"

          Fixed :)

          @BP_STI: You don't need to "converse" with an intruder to gauge their intent. Even in Australia. You can work a lot out by posture and attitude and of course whether they're holding anything in their hands. I don't have any sympathy for house invaders/burglars but the idea that you could just shoot a random person who is in your house with no warning is dangerous and could get you in serious trouble.

          Or even worse kill an innocent person: "Oh shit Mum visited and I didn't see her face in the dark, I just shot her thinking it was a burglar".

            A lot of Americans seem to think that once someone steps on their property. They can flout all laws and do what they want to intruders.

            And they wonder why they have a gun problem.

    I've been pretty much comfortable with the idea that the Police would first have to find the body and then prove that they were at my place before I faced any lawful repercussions. Gee officer it's sad that some shithead who makes a living from the rape of other people's lives and property died and no I can't remember ever seeing him/her. You say I was on a list of planned break-ins? Well huh.

    I recall hearing of a case where a burglar cut themselves while escaping through a window. The burglar sued the home owner stating that they had jumped through the window because the home owner was threatening their life. I believe the burglar actually received compensation. Don't know if this was in Australia or America. The burglar must have had a good lawyer.

    What if a invader dies in my house due to their own fault? For example, they slip on the wet floor and get their head hit the ground. I suppose I won't be charged?

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