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.