It could be a split-second decision. A stranger is in your house and, in the moment, you act to protect yourself, someone else or your property. But in Australia, are those actions legal?
A professional Australian Rules footballer received wide attention in his home country on Tuesday after going into “fight or flight mode” to chase car thieves out of his home in Melbourne.
Woken by his barking dog, Brendan Whitecross said “instincts kicked in” when he spotted an intruder stealing keys to his fiancee’s Porsche.
“My thought was if I could handle Hodgey [team captain Luke Hodge] when he’s a bit fired up, I thought I could handle anybody,” Whitecross told Nine News. The thieves escaped with the car and led police on a dramatic chase, before three men were arrested.
While the AFL player did not ultimately clash with the intruders, the incident is the latest high-profile case in Australia of someone taking defensive action in their home.
Last month, a 68-year-old man used shot an intruder in the “buttocks or lower back area” with an arrow after discovering him in his Sydney house.
In the days that followed, police searched for the thief – ultimately arresting a man – but said they would also review the homeowner’s actions.
When is self-defence legal?
Most Australian jurisdictions say a resident who fights back against a home intruder can be charged with assault.
In general terms, the law hinges on whether the person acted in self-defence and took a “reasonable response” to a threat.
In the state of New South Wales, for example, the Crimes Act 1900 states “a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence”.
However, if the use of force is deemed “excessive”, the homeowner is on shakier ground.
Crucially, lethal force is not permitted in defending property.
“It’s very, very dangerous to go shooting an intruder because you can find yourself having committed a crime,” said Pauline Wright, from the Law Society of NSW.
‘Dynamic’ situations
Sam Norton, from Victoria’s Law Institute, said homeowners were entitled to chase people from their property.
“You can do that with violence, provided that you reasonably believe that your acts are required to defend your property,” he told the BBC.
Mr Norton said while the law offers protection, any action must be proportionate to the level of threat.
“One of the things that the law recognises is that circumstances can be dynamic and frightening,” he said.
“One of the very old cases has an eloquent term that I am fond of and it says, ‘there is no cause for calm reflection in the face of the uplifted knife’.
“Don’t go over the top. You can defend yourself but you can’t go on the attack.”
Source http://worldjusticenews.com/news/wp-admin/post.php?post=3880&action=edit
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