Australia: Excessive self-defence and use of force to protect yourself against an intruder

It's everybody's nightmare. A person breaks into your home and threatens your family. You grab a weapon. You are prepared to fight. But how far does the law allow you to go in protecting yourself, your family or your home?

How much force can you use? What if you injure the intruder? What if you kill them?

What is "self-defence" under NSW law?

NSW law allows people to use force to defend themselves, and others.

If a person maintains that they acted in self-defence, then it is up to the prosecution to prove beyond reasonable doubt that that was not the case.

However, events that occur in the heat of the moment, charged by fear and desperation, can look totally different in the harsh light of a court room. And in law, self-defence is very strictly defined.

Section 418 of the NSW Crimes Act 1900 states that a person is not criminally responsible for conduct which they believe is necessary to defend themselves, another person or property, provided that their actions are a reasonable response to the circumstances as they perceive them.

Use of excessive force against intruders

However, that is not the end of the story. The law of self-defence can have serious limitations for a person who kills a home intruder.

If that's the case, self-defence is not available if the person used excessive force against an intruder, or if they acted only to protect property, or to stop a criminal trespass.

Where self-defence is raised, the court will consider every aspect of the incident.

Did the home invasion take place during the day or night? Was the intruder armed? Did they threaten people, or property? Did they try to flee as soon as they were confronted? What options did the occupants have? Could they have run away themselves, instead of using violence against the intruder?

Manslaughter conviction and custodial sentence following "excessive self-defence"

A recent case in the Victorian Supreme Court highlights the issue. (See The Queen v Brown [2017] VSC 240.) A man stabbed his brother once to the chest after the brother threatened violence against family members.

The victim had a long history of violence against the family and was affected by the drug ice, as well as alcohol. Despite pleading self-defence and demonstrating remorse, the brother was convicted of manslaughter, as his act was found to be "excessive self-defence". He was sentenced to six years and three months in jail.

Intruder suffers significant injuries, takes legal action

The risks you run in confronting a home intruder are illustrated by a 2002 case in the NSW District Court. The manager of Sydney's Peakhurst Inn lived above the pub with his family. One night, an intoxicated teenager broke into the upstairs residence after being refused entry to the pub.

He was confronted in the laundry by the hotel manager and as a result of that encounter, sustained a fractured forehead and facial injuries requiring surgery. He was off work for three months.

The court held that confronting the teenager with a weapon was completely reasonable. But using the weapon against him was unnecessary and "exceeded the bounds of self-defence". In a decision that caused a public uproar, the hotel was ordered to pay the teenager $50,000 in compensation.

Inflicting injuries upon intruder held to be unnecessary and excessive

The contentious nature of this case was demonstrated by the fact that it progressed through three successive courts, with the first awarding compensation to the intruder, the second overturning that decision and the third reinstating the compensation payment.

In addition to the severity of the injuries inflicted upon the intruder, the court considered it relevant that he was unarmed and did not make any threats or offer any resistance when confronted.

Furthermore, it was noted that the intruder did not pose any immediate threat to the manager's family, who were inside, and that the manager could have phoned the police or simply summoned hotel security via the intercom, rather than dealing with the intruder as he did.

Self-defence argument must be able to withstand scrutiny

The motivations of a person who uses force against an intruder will always be crucial to the outcome of any legal case. Did the person honestly believe that their actions were necessary? Did they believe at the time they had no choice? Were they retaliating, or "teaching them a lesson"?

If it was the latter, then self-defence will offer no protection from criminal prosecution and conviction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.