Home invasions

[smithy]

Given the recent shooting of an unwanted visitor on a persons premises - http://www.news.com.au/adelaidenow/story/0,22606,23189283-5006301,00.html

I ask the question, what would you do if someone was in your house that you didn't want to?
Personally, if ANYONE is on my property especially after midnight and especially inside my house, I will use any means possible to get that person removed.
if that means killing that person, so be it, I need to protect my kids safety.
Why should the home owner be punished for this ?
If a would be thief is injured, TOUGH LUCK.

[GWW]

Its a really dicey area of the law, and all things being even, i doubt many juries would convict someone in this situation.

Furthermore to this most recent incident, i believe the 2 people were known to each other, i'm not necessarily saying this is a major issue, but generally its not the case in these types of situations.

[grant j]

..

[Wedgie]

I dont know if meditation would do much to put them off. Might want to try mediation next time.

[Footy Chick]

It's old common law that never been changed... even with todays changing society..

We've always been told that if you are going to belt the living suitcase out of an invader in your home, use a saucepan (heavy one preferably), not a baseball bat that way you claim self defence with no pre-meditated intention to hurt the person.

[smac]

Break their legs and claim they did it to themselves trying to get away.

[Footy Chick]

nah, cos then you're still up for the legal liability..

[Pseudo]

I dont know if meditation would do much to put them off. Might want to try mediation next time.

In fact meditation has been proven not to work. Years ago when George Harrison found a bloke in his house, he tried to scare the guy off by chanting the "Hare Krishna" mantra at him. Needless to say old George got stabbed. His missus, made of much sterner stuff, picked up the nearest sharp implement (a fire poker) and went to town on the intruder.

Should I discover anyone in my own house without invitation, I would not hesitate to grab the nearest blunt object and go in swinging.

[JK]

I managed to catch a bloke part way through our window last year, and thankfully for the other half (who remained freaked out for ages) he took off reasonably quickly ... It's an interesting situation because all the thoughts on what you'd do in this type of scenario go straight out of your head when it happens and instinct takes over (well it did in my case anyway).

The coppers who came out afterward told me any force that I deemed "reasonable" was fine, they reiterated that when I ran through a few examples ... Pretty grey area I would have thought because my thoughts on reasonable may well differ to others (especially those sitting in a jury who perhaps haven't been subjected to a similar situation).

Anyway, I've always thought that if the intruder hadn't been where they weren't supposed to be, then they wouldn't have come to any harm - ie, they effectively brought it on themself.

In the instance on the weekend, if it was genuinely a case of a home owner shooting an intruder, then I side with the home owner %100 of the time.

[rsemmler]

It's an interesting one.

When I was in the States a few years back, Florida passed a law that meant their citizens could 'shoot to kill' if they felt threatened by an intruder. I believe the law was even more laidback when first passed (eg you could open fire anywhere when you felt threatened) but it got amended shortly thereafter.

Considering the amount of retirees in Florida and then amount of guns floating around households in the US, you'd think home invasions would've decreased significantly after this law got introduced!

"As of October 1, 2005, Florida became a castle law state, and requires no retreat when inside one's home, one's place of business, or even one's tent at a campground site. Some have referred to this as a "shoot first" law."

[Andy #24]

It's old common law that never been changed... even with todays changing society..

We've always been told that if you are going to belt the living suitcase out of an invader in your home, use a saucepan (heavy one preferably), not a baseball bat that way you claim self defence with no pre-meditated intention to hurt the person.

Not correct FC, here are the relevant provisions of the crim law cons act 1935.

s1515—Self defence


(1) It is a defence to a charge of an offence if—


(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and


(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist 1 .


(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—


(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but


(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. 2


(3) For the purposes of this section, a person acts for a "defensive purpose if the person acts—


(a) in self defence or in defence of another; or


(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.


(4) However, if a person—


(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or


(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,


the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.


(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion


(1) This section applies where—


(a) a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the "perceived threat ); and


(b) the victim was not a police officer acting in the course of his or her duties.


(2) In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—


(a) the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and


(b) the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and


(c) the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.

[Andy #24]

There must be more to the story at Enfield or the guy wouldn't have been charged.

[Footy Chick]

It's old common law that never been changed... even with todays changing society..

We've always been told that if you are going to belt the living suitcase out of an invader in your home, use a saucepan (heavy one preferably), not a baseball bat that way you claim self defence with no pre-meditated intention to hurt the person.

Not correct FC, here are the relevant provisions of the crim law cons act 1935.

s1515—Self defence


(1) It is a defence to a charge of an offence if—


(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and


(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist 1 .


(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—


(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but


(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. 2


(3) For the purposes of this section, a person acts for a "defensive purpose if the person acts—


(a) in self defence or in defence of another; or


(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.


(4) However, if a person—


(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or


(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,


the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.


(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

15C—Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion


(1) This section applies where—


(a) a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the "perceived threat ); and


(b) the victim was not a police officer acting in the course of his or her duties.


(2) In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—


(a) the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and


(b) the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and


(c) the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.

Andy, that's nice that you've posted all that, but do you actually understand any of it??? I may actually sit down and bother reading it one day.

FYI, The information on what to defend yourself with was given to me by a cop. I didn't claim it to be the word of the law, so I don't know what your correcting me on... nice work on looking up the "relevant provisions" though..

[Andy #24]

I was correcting you because you said it was old common law that has never been changed even with todays changing society. Section 15C (the bit about home invasion if you cant be bothered reading back) was only a recent ammendment and drastically alters the common law position which was essentially codified in section 15 IIRC.

I do understand things that I quote FC, maybe you should read it and realise what you posted was utter crap.

Sorry for posting the legislation, should I have just said you were wrong without backing it up with anything? It's amusing that as soon as someone points out you're wrong you start insulting them. Grow up. If you don't understand something just ask me and I will explain it to you.

[tigersupporter]

There has been two home invasions in my area recently.....Including one next door, that was much too close especially as i have three kids... it is a terrible thing to have done to you, BUT, in both cases it was a pay back for these people who had broken into the invaders home and stolen stuff from them. We never here the reasons for the invasions on TV, not that it makes it right. What happens though, if the invaders get the address wrong? and ends up in your place. I got told once that if you have a gun, shoot them then fire one into the ceiling and then tell the cops you fired a warning shot, but he still kept coming. Fortunatley the people next door have just moved out, so now our street can quiet down again.

[Squawk]

There have been a few cases in Adelaide in recent years.

The elderly man who shot an intruder at his inner-western suburbs house
The Samurai Sword incident recently
The man who shot at the people trying to rip his crop off.

There have also been a couple of recent deaths associated with break and enters -

The man who died breaking in to a business on the Parade - fatally cut himself
Another man who also fatally cut himself in a suburban break and enter

There are two types of 'home invasion' - aggravated (where someone is home) and Non-aggravated, with the general offence being known as serious criminal trespass. The law for home invasion resulted from the Ivy Skoronski petition.

This is all distinct from the laws about self defence. What will be interesting will be the testimony of the offender who becomes the victim - I cant recall these people usually testifying but what would you expect them to say - "I broke in, I threatended the home owner but I didn't mean what I said. If he hit me over the head with a saucepan I probably would have run away, frightened. Rather, he fired a gun at me and I feared for my life. If I had a gun, I would have used reasonable force myself - to defend myself."

A tricky space. Prosecutorial choice is based on a reasonable prospect of conviction. Watch this space.

[Psyber]

Andy's post is very relevant, and reasonably decipherable if you read it slowly section by section.

It is just that a slab of double spaced text can be a bit overwheming at first sight, especially in legal language. Reading one section at a time and digesting it before going on to the next helps.

"Officer, I was sure I saw a gun pointing at me!" may be the way to go.

[Lunchcutter]

i'm with you #24 - why o why are some people so full of 'emself? thanks for all that legal info, I, for one, found it most interesting.

[Footy Chick]

Andy's post is very relevant, and reasonably decipherable if you read it slowly section by section.

It is just that a slab of double spaced text can be a bit overwheming at first sight, especially in legal language. Reading one section at a time and digesting it before going on to the next helps.

"Officer, I was sure I saw a gun pointing at me!" may be the way to go.

It probably is, but my attention span today (or any other day for that matter) is that of a goldfish

[Booney]

LOL,ripping into you aren't they FC?

Anyway,give a crap about the laws held up in the court room(In this case).My lounge room or any other room in MY house falls under MY juristiction and I am the judge,jury and (God forbid) executioner if required.

Eddie Murphy-"It's my house,and if ya dont like it get tha **** out!"