The right to defend your home against intruders; when is self defence not self defence?

The recent case of Benjamin Batterham, a Newcastle homeowner charged with murdering alleged intruder Ricky Slater-Dickson, has highlighted the important issues and complexities surrounding the law of self defence in NSW.

It has been reported that Mr Slater-Dickson broke into Mr Batterham’s home. A fight ensued between the homeowner, his friend and the intruder. This resulted in the homeowner and his friend tackling and placing the intruder in a headlock. They were found in this position by the police.

Mr Slater-Dickson suffered a broken neck and later passed away in hospital.

In NSW, a person is not guilty of an offence, if that person has acted in self defence.

It is significant to first note that self defence is not a concept limited to only defending against a physical attack. While self defence is most commonly raised in a situation where a person has acted to defend themselves from a perceived threat or attack, self defence can also be used to defend against the threat that a person’s property may be damaged, or to prevent trespass to property.

The law in NSW provides that a person is not guilty of an offence if they were:

1. Defending themselves or someone else;

2. Preventing or ending the unlawful deprivation of liberty of themselves or another person;

3. Defending their property from being taken unlawfully, destroyed, damaged or interfered with; or

4. Preventing criminal trespass to any land or to remove a person committing criminal trespass.

While a person is entitled to rely upon the doctrine of self defence in the above circumstances, their actions in defending themselves, or their property, still must be a reasonable response to the threat perceived by them.

However, section 420 of the Crimes Act 1900 also provides that self-defence is not available if the person has either intentionally or recklessly inflicted death for the purposes of defending property or preventing criminal trespass.

Actions in self-defence must be a reasonable response to the threat as perceived by the accused.

This involves an assessment of how fearful the accused was at the time of the threat. This can take into account subjective features of the accused which may have affected their perception of the situation. The court will then determine whether their belief of the threat was on reasonable grounds.

It must further be shown that the response was reasonably proportionate to that threat. This involves consideration of the actions of the supposed intruder against the response by the homeowner. For example, if a home owner takes steps to wrestle a home intruder to the ground who was threatening to damage their property, this may be seen as a reasonable response. However, if a home owner shoots dead an intruder who has his hands up to surrender, then it is likely that this will be seen as an unreasonable, and overly aggressive response.

The fundamental question raised by this case is whether a homeowner should be charged when they are simply defending their property from intruders. The case prompted outcries from the community that one’s house is a private sanctuary that should be able to be protected at all measures.

In NSW there are certain protections against criminal prosecutions that are given to people trying to protect themselves or their home. However, those protections have some limitations, and a person is not allowed to simply do anything they wish in response to a perceived threat to themselves or their property.

The doctrine of self defence continues to be a complex and difficult area of law.

While a person has the right to defend themselves and their property, if that right is used unreasonably or with excessive force, then the doctrine of self defence may not be able to offer protection against potential criminal prosecution.

This article was written by the Kells Criminal Law Team.