Over the weekend, New South Wales police charged a man with murder after an alleged burglar died following an incident in the man’s home in the early hours of Saturday. Conversely, in a separate case, committal proceedings are continuing against two men charged with murder allegedly committed during a home invasion in Western Sydney in 2014.
How far can homeowners lawfully go to protect themselves in a home invasion in Australia? Where is the line drawn between self-help and vigilantism?
What Is Home Invasion?
“Home invasion” is a popular rather than legal term. It emerged in the 1990s to describe multiple offenders, carrying weapons, who unlawfully enter a home, intending to rob or injure persons inside.
Australia has no specific offence of “home invasion.” Relevant offending is usually prosecuted through offences including robbery/armed robbery, break and enter with intent, burglary/aggravated burglary, and assault.
However, two states—South Australia and Western Australia—have laws that deal specifically with the issue of self-defense to home invasion. Additionally, protection against home invasion may involve the occupier performing a citizen’s arrest.
Self-Defense, Defense of Property, and Home Invasion
In most home-invasion cases, occupiers who discover a person unlawfully in their home will be acting in defense of themselves and their family—as well as protecting their property.
Although the laws of self-defense vary across Australia, most laws require in essence that the person believed on reasonable grounds that it was necessary in self-defense to do what they did. And, from their perspective, there must have been reasonable grounds for that belief.
South Australia and Western Australia—the two states that have laws specifically dealing with self-defense to home invasion—require that occupants who act in defense of themselves or another, or to protect property against an intruder, must believe on reasonable grounds that it is necessary to do so, but relax requirements of proportionality in the home occupier’s response.
