What is the defence against home invasion?

Section 244 of the Criminal Code in Western Australia creates the “defence against home invasion”. This defence was created in 2000 and was not always a part of the law in Western Australia. It was introduced in response to a growing number of “home invasion” offences whereby burglars were assaulted by home owners, and police were charging the home owners for defending themselves in their own property.

 

The defence is complex and difficult to apply to home invasion scenarios. Home owners faced with an intruder often make decisions rapidly, without being able to fully think them through. The amount of force that is ultimately used is difficult to assess by reference to what a reasonable person in the position of the home owner would do. Most persons are unlikely to have ever encountered a home intruder and dealt with the fear and stress such a situation presents.

 

The defence gives persons in possession of a dwelling (Ie a home) the right to use any force against a “home invader”. This includes force which amounts to death if the home occupier believes the home invader will use or threatens to use violence to any person.

 

This is an alternative defence which is in addition to self-defence, and can be run at trial alongside the defence of self-defence, particularly in a murder case. This is because self-defence can reduce murder to manslaughter in certain cases, while defence against home invasion does not. Both defences are likely to apply in a home invasion case where violence has been used or threatened.

 

The defence is fairly unique to Western Australia, with only one other state enacting specific laws giving specific rights to home owners in a situation involving a home invasion. The defence has been raised in various cases in Western Australia.

Who can raise the defence against home invasion?

 The occupant

The defence against home invasion can be raised by “any person in peaceable possession of a dwelling”. This person is called the occupant. This includes:

• Home owners;
• Tenants; &
• Persons otherwise entitled to possession on a limited basis for example people inside your property with a license to be there.

 

Peaceable possession means the home occupier cannot be breaching the peace themselves. For example, committing an offence in their home at the time they rely upon the home invasion defence.

 

This might apply where the home occupier unlawfully assaulted a person in their home, for instance. If they subsequently used force against a “home invader” (a person assaulting them back, for instance) they could not rely upon the defence as they are not “in peaceable possession” of their own property.

 

In what situations does the defence apply?

The term “home invader” conjures up images of masked bandits breaking in through a window and assaulting the home owner. However, the offence has a wide application to situations involving any person in the home who is committing an offence or threatening violence. This includes people who were in the house with the home owner’s permission.

 

(1) Home invader

The defence applies, firstly, to a “home invader”. This is a person who the occupant believes, on reasonable, grounds:

• Intends to commit an offence; or
• Is committing or has committed an offence;

in the dwelling or an associated place.

An offence means an offence in addition to any wrongful entry. This encompasses situations where there is no wrongful entry but an offence is committed. For example, an offence committed by a housemate in their bedroom such as drug manufacturing.

 

(2) Situations involving a home invader

Secondly, the defence only applies to using force in these situations involving a home invader:

• To prevent a home invader from wrongfully entering the dwelling or an associated place;
• To cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place;
• To make effectual defence against violence used or threatened to a person by a home invader who is –
  • Attempting to wrongfully enter the dwelling or an associated place; or
  • Wrongfully in the dwelling or on or in an associated place; or
• To prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

 

As can be seen, the offence would apply in situations involving a domestic dispute between partners where one person has threatened violence (an offence), and the other partner assaults that person to stop them from committing the threatened offence. This is not a classic “home invasion” situation such as that involving a stranger breaking into a person’s house to commit a burglary offence.

 

What is an “associated place”?

The home invasion defence also applies to an “associated place”, not just the dwelling itself. An “associated place” means any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling. This includes a garage or the backyard.

 

An “associated place” also means common property involving two or more dwellings in one building or group of buildings. For example, the courtyard of an apartment building.

 

How much force can be used against a “home invader”?

The occupant can use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary to stop the home invader from doing the things outlined at heading (2) above. Force that is intended or likely to cause death to a home invader cannot be used unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used, or is threatened to a person by a home invader.

 

Both tests for the use of force incorporate a “reasonable grounds” test. This means the jury must assess whether the occupant’s belief was reasonable, in the circumstances the occupant was in. This can often make it difficult to secure an acquittal by using this defence as force used may simply be excessive or unreasonable. The defence is a full defence and if the prosecution fail to negative it beyond reasonable doubt, you are entitled to be acquitted of any charge involving the use of force including murder.

 

These provisions are complex, and the situations in which they apply varied. If you require expert advice on whether your case might raise the defence against home invasion, please contact James Jackson Criminal Defence and get advice from an experienced Perth criminal lawyer.