Everyone knows that using force in self-defence is lawful, but did you know that the law also allows you to use force—sometimes even assault or deadly force—for the defence of property or dwelling? You may be legally permitted to stop someone from taking your possessions, or even prevent them from entering your home to commit a crime.
Defending Moveable Property
If you are in possession of moveable property, and someone with no right to the property tries to take it, then you (or anyone assisting you) may use any force reasonably necessary to prevent the person taking the property, or to retake it from them. In fact, as long as you have a claim of right (i.e., you believe in good faith that you have a right to the property), you are allowed to defend it against everyone else – even the rightful owner. This helps people to have certainty that they won’t be criminally liable for defending what they believe to be theirs.
If you’re entitled to the property, but are not in possession of it (because someone else has it), then you are entitled to use whatever force is necessary to take it, as long as the person who currently has it doesn’t have a claim of right.
However, in each of the above cases, you’re not allowed to use force that causes death or grievous bodily harm to the person.
Defence of Premises Against Trespassers
A similar framework applies to defence of real property (premises, land, structures, etc). If you are in possession of premises, then you can use any force necessary to prevent a person from entering, or remove a person from staying on, your property if they are there unlawfully. The word ‘unlawfully’ here encompasses situations where you have not given, or have removed, your consent to the person being on the premises; and they are not otherwise entitled to be there. You can also remove anyone from your property who is acting in a disorderly manner.
If you are in possession of real property with a claim of right, then you can use any force necessary to defend your possession of that property; even against the person who is legally entitled to possession.
Once again, in each of the above cases, you can’t use force that causes death or grievous bodily harm. That changes if you’re defending your home from a criminal intrusion, however.
Defence of Dwelling
The defence of Defence of Dwelling allows you (and anyone assisting you) to use force to prevent intruders from entering or remaining in your home, if you reasonably believe that:
- the intruders intend to commit a crime or other indictable offence in your home; and
- you need to use such force to prevent the intruders from entering or remaining in your home.
The defence of Defence of Dwelling is not constrained by the same limitations as ordinary self-defence. In particular,
- as long as the above requirements of reasonable belief are satisfied, there is no reason why you could not strike first to defend your property rather than waiting for the other person to assault you;
- you can use more force than would be reasonably necessary to defend your person from the intruder, as long as it is necessary to defend your home. That is, even if you are not worried that a person will do violence to you, you can use lethal force against them if you reasonably believe that nothing else will stop them entering your house to commit a crime; and
- there is no requirement to retreat from a threat even if a retreat would adequately protect you against a threatened assault (again, retreat might help to protect you, but Defence of Dwelling is about protecting your home).
Case Example: Michael John Cuskelly v The Queen [2009] QCA 375
Mr Cuskelly was convicted of murder after he stabbed Mr Carr to death. Mr Carr was drunk and had been threatening Mr Cuskelly, and then commenced climbing the stairs towards Mr Cuskelly’s unit. Mr Cuskelly feared that Mr Carr would kick down the door and beat himself and his wife. Mr Cuskelly therefore went out to the stairs and pre-emptively stabbed Mr Carr. The Queensland Court of Appeal held that Mr Cuskelly had been wrongfully convicted, because the jury had not considered Defence of Dwelling. They had considered that Self-Defence could not be established, but this was irrelevant as Defence of Dwelling was much broader.
Vocare Law is well equipped to assist our Criminal Law clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on your Criminal Law matter. Please don’t hesitate to contact our office if you have any questions on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Martin Churchill.
