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.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.


    (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.

    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;

    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.

      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.

    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

    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.

    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.

    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;
    (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.]$File/Bill005-1.pdf

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