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Homeowners rights

Background

At 7:30am on Sunday 17 February 2019, a 44 year old South African finance worker, Mr Francois Schwartz was alerted to a disturbance in his family home by his barking dogs.

As Mr Schwartz came down the stairs of his Harrington Park home, he discovered 34 year old Bradley Soper standing in his family's living room soaking wet, wearing a singlet, shorts and no shoes.

Detective Chief Inspector Shane Woolbank has confirmed Mr Schwartz then confronted the male intruder where a violent struggle followed. As a result of the struggle, Soper collapsed to the ground losing consciousness. Soper was held in a choke hold while emergency services were being contacted by Mr Schwartz’s wife. Attempts of CPR by Mr Schwartz's neighbours and later by paramedics were unsuccessful as Soper was unable to be revived.

Police established a crime scene and are currently investigating the circumstances surrounding Soper's death. Mr Schwartz was interviewed on Sunday for several hours before he was later released from custody without charge on Sunday night, pending the results of a post-mortem examination.

Comment

A majority of the recent comments surrounding the issue of "home-owner rights" when an intruder enters your property appear to focus around the issue of "self-defence".

Under law, you are not permitted to "assault" another person. An assault constitutes the unlawful striking, touching or application of force.  An assault does not need to be actual violence and the threat of violence can constitute an assault. The conduct must be intentional and/or reckless and without consent. The degree of seriousness can range from common assault to occasioning grievous bodily harm.

So what can you do if someone enters your house uninvited?

There are defences to assault, and in 2001 section 418 was inserted into the Crimes Act 1900 ("The Act") relating to Self Defence. This sections means a person is not criminally liable if the person carries out the assault whilst acting in self-defence, that is, to defend himself or another person, to prevent the unlawful deprivation of liberty, defence of property and to prevent criminal trespass.

Section 418 is applied under a two part test, the first being the person believes their conduct is necessary and the second involving the objective circumstances as perceived by the accused. When self-defence is raised, the onus then shifts to the prosecution to prove, beyond reasonable doubt that the person did not act in self defence.

In this most recent example, the focus on self defence does not address the issue of what degree of force can you use to protect your property from a home invasion. Furthermore, it appears from media reports and the fact that the police have not charged the home-owner, that this death is somehow justified in law however, we consider this to be a dangerous "rule of thumb" i.e. if an intruder is on your property you can do whatever you like to them.

Without knowing the specific circumstances of the case, regard must also be given to section 420 which states that self defence is NOT available if a person uses force that involves the intentional or reckless infliction of death ONLY to protect property, or to prevent criminal trespass (or to remove a person committing criminal trespass).

As death eventuated in this circumstance, section 421 also needs to be considered which refers to a Manslaughter charge as opposed to murder.

This being the case, you may protect yourself and your property to a reasonable degree, but the fact that the person is on your premises doesn't discharge your culpability in relation to degree of forced used in the circumstance.

This article was written by Special Counsel, Patrick Schmidt. 

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