The M Word Consulting
ARE PROPERTY INTRUDERS FAIR GAME?
Victims of property crime can still feel the weight of the law. Today we consider self-defence in a home invasion, and when it will get you in trouble with the law.
The question of what legally qualifies as self-defence when intruders enter your property was at the centre of a high-profile case in the NT Supreme Court in 2019. A jury found Top End identity Michael Denigan not guilty of unlawfully causing serious harm.
The charge stemmed from a night in February 2017 when Mr Denigan shot a man in the leg on his rural Darwin property. Prosecutors argued his actions had not been in self-defence, but Mr Denigan's lawyers successfully argued to the contrary.
In the wake of the verdict, Mr Denigan talked openly with media and the many misunderstandings that abound about self-defence during home invasions.
He said he'd heard of "heaps of misconceptions, heaps of stories" within the community since his trial.
"A lot of people reckon you've got to shoot the gun once in the air before you shoot as a warning shot," he said, citing an example. "Something needs to be done because there are a lot of misconceptions out there and a lot of it's happening at the moment — home invasions and property crime."
Shades of Grey in Criminal Code
Some corners of social media lit up after the case finalised, with many interpreting the verdict as a win for the rights of residents defending their homes. Among many comments, the logic is that intruders on their property were fair game. However, victims of property crime can still feel the weight of the law if they act illegally according to Marty Aust, president of the NT Criminal Lawyers Association. He believed one reason for the misconceptions was that many community members expected the law to be black and white.
"But the reality is that we operate always in shades of grey and defensive conduct is no different. Ostensibly, a person has rights to defend themselves in certain circumstances or defend their property. People need to be aware that defensive conduct is a defined term within the criminal code."
But the question of what that conduct might look like becomes more complex still. The debate also re-emerged following another 2019 incident in Sydney in which an intruder died after an altercation with a homeowner, who has been questioned by police and released without charge, pending further investigations.
Reasonable and Proportionate
Peter Maley, one of two lawyers who represented Mr Denigan, said injuring intruders didn't automatically qualify as self-defence. Instead, he said there were different parameters within the criminal code.
"There's a whole body of law on it but I suppose it's best summarised by this: the response has to be reasonable and proportionate," he said. "You can certainly detain someone who's invading your home or your business, but you can't cause grievous harm or kill them — it's got to be reasonable force. But in some situations, if the person's armed or there's an imminent threat to your life or your family's life, then you can exercise a more lethal level of force."
Police say property theft and home invasion are some of the most common crimes in the NT but advise against keeping a weapon in the home for protection. They say they offer this advice because intruders may grab the weapon and use it themselves. But Mr Aust said there were other reasons to think carefully about arming yourself. He believed it could reasonably lead to vigilantism or situations where the response ended up being disproportionate to the threat.
"You have to believe it's necessary before you do anything. If you don't believe it's necessary, then you're not acting defensively," he said. "You're putting yourself in a situation where you're almost certainly going to be committing an offence."
Proving something was necessary could be highly subjective, of course, and that is where those shades of grey came in. Fortunately self-defence laws are basically uniform across most of Australia because they arise from common law. In all states, it comes down to circumstance.
Self Defence and Circumstance
Arguments about self-defence depended heavily on circumstance. Whether you're defending people or property and whether an intruder is believed to be armed are factors. So the ways you can legally defend yourself against someone stealing alcohol from a fridge differs vastly from an armed intruder in a family bedroom.
"One thing the law does recognise is that, in the heat of the moment, when someone's called upon to make a decision in a dynamic situation as it unfolds, you're not going to have 100 per cent clarity," Mr Aust said.
"There is leeway afforded to you... and that degree of leeway is going to be different in different factual scenarios. There's no absolute set of parameters," Mr Maley said.
"The real test has got to be a reasonable response to the circumstances."
If you are being robbed, in your home or out of your home, you essentially have four options:
Refuse: In the case of a home intrusion or mugging, this is by far the worst option and not recommended. You have no idea who the intruder or mugger is, what weapon they may have and what they are capable of. It is simply not worth it.
Comply: This option means you just give them whatever they want. It is usually the safest, smartest and best option.
Run away: Possibly viable in the case of a home intrusion, but can be a little risky in some circumstances. If you can just turn and run, or escape and run to safety quickly, then absolutely please run away! But you have to make sure you are fast, that you are wearing the right shoes, and the predator doesn’t have a gun they could shoot you with. You need to think about whether this is practical or not. It may be more applicable to fight back in some way, then to run away once you have hurt the intruder.
Fight back: This option is extremely risky and not recommended. If they have a gun there’s a good chance you’ll get shot, if they have a knife there is a good chance you’ll get cut, if they have a hammer then one shot is all it takes and you could be dead. BUT if they are threatening something you are NOT willing to part with, like your child or a family member, then do whatever you have to do to fight them and get you, and those your love, away to safety, or free from threat.
At COBRA Self Defence, we encourage avoidance at all cost. Please do not put yourself in a position where you might get hurt. Ask yourself what you are worth, and arm yourself with self defence knowledge and skills. You will be glad you did if you ever hear the window break in the middle of the night, come home to a busted front door lock, or hear that menacing creaking of someone walking up the stairs while you sleep.
If you do ever find yourself in a self defence situation, remember that your actions are perfectly defensible if deemed justifiable and appropriate to the situation at hand. If you feel threatened, fear for your life or think the predator has a weapon, your actions are more than likely APPROPRIATE and LEGAL.
For more tips and advice, be sure to follow COBRA Self Defence Sunshine Coast and share this post with your friends and your family. Knowledge is power! Stay safe.
N.b This information does not constitute legal advice and should be used for information purposes only.