The loaded question of self-defence

[philw]

ok  here is a good one for you to check out how it is over here


there are 2 news articles   I have the older one first  then the one from the other day

http://www.news.com.au/adelaidenow/story/0,22606,26101131-5013696,00.html

Is killing an intruder murder?
IT is two o'clock in the morning. You are woken from a sound sleep by a noise coming from another part of the house.

You can hear someone moving around. It must be an intruder who has broken into your home. What is he after? What do you do?

Fortunately, you keep a loaded shotgun in your bedroom. You pick it up and quickly move to the source of the sound, the lounge room.

You turn on the light.

The intruder is a man that you have never seen before. He is about to steal your TV.

You raise the shotgun and fire twice, once at his head and once at his chest. He falls down dead.

You dial 000 and the police rush to the scene of the crime.

Now, here comes a little quiz. What is the crime?

Is it the intruder breaking into your house or is it you killing him - or is it both?

The first answer is easy. The intruder committed the serious crime of criminal trespass.

The answer to the second part of the question lies in section 15C of the Criminal Law Consolidation Act, a piece of legislation that has only been in force in South Australia since 2003 and which is known as the defence against home invasion.

What this says is that provided you can prove on the balance of probabilities that you genuinely believed a home invasion was being committed or had just been committed, then even though you shot the intruder dead you are not guilty of any crime unless the prosecution is able to prove beyond reasonable doubt that you did not genuinely believe that your conduct was necessary and reasonable for a defensive purpose.

In other words, in order to get a conviction, the prosecution must prove that in your mind at the time, you did not see a need to defend yourself.

It follows that if you remain silent, the prosecution task is almost impossible.

It does not matter that the home invader was not carrying a weapon or was simply looking for food.

As the occupier of your own home, you have a defence, even if your conduct was utterly disproportionate to the perceived threat.

All you have to prove is that you genuinely believed that the intruder was committing a home invasion.

When this particular law was introduced into Parliament, Attorney-General Michael Atkinson said it would enhance the legal rights of South Australian householders to protect themselves from intruders.

It does that, but in addition it gives permission to any householder to use deadly force against an intruder without committing an offence as long as the householder genuinely believes that the person is an intruder and as long as the prosecution is unable to prove that the householder did not genuinely believe that killing the intruder was necessary and reasonable for a defensive purpose.

By the way, you are not restricted to a shotgun.

It is fine to use a knife or a cricket bat.

You lose the defence, however, if you are high on drugs, your home has been invaded because of your own criminal activities or the intruder is a police officer acting in the course of duty.

m John Golberg is the president of the Law Society of South Australia.

http://www.news.com.au/adelaidenow/story/0,,26195493-5013696,00.html

The loaded question of self-defence

THREE weeks ago in this column I wrote that if an intruder breaks into your home and you kill him (or her), you are not guilty of a crime if you establish that you genuinely believed that a home invasion was being committed.

To be convicted of an offence, the prosecution would have to prove that you did not believe your conduct was necessary and reasonable for defensive purposes.

If you said nothing, it would be next to impossible for the prosecution to prove what was going on in your head.

I have been contacted by the police firearms branch and it has been pointed out to me that I was in error, not on any of the matters that I have just mentioned, but in the hypothetical scenario in the column where I wrote that you killed the intruder with a loaded shotgun that you kept in your bedroom, yet you committed no offence.

It has been pointed out to me that it is a breach of the law to keep a loaded gun in your bedroom, even if you hold a firearms licence and your firearm is registered.

The regulations say that firearms must be locked up in the prescribed manner (generally a gun safe or strongroom) and all ammunition must be stored in a locked container separately from the firearm. A firearms licence is endorsed with the use to which the holder of the licence can put the firearm.

Now the use might be target shooting or hunting, but self-defence is not normally an approved use.

Even if you had the appropriate licence and kept your gun in a locked safe with the ammunition locked up separately, you would still not be able to use your gun to defend yourself in your own home unless there was an endorsement on the licence by the Registrar of Firearms specifically approving that use.

The Firearms Act says that you commit an offence if you use a firearm for a purpose not authorised by your licence.

An unsecured gun in your bedroom could cost you a maximum fine of $2500 and the use of the shotgun in breach of your firearms licence could incur a maximum fine of $20,000 or imprisonment for four years. This is so even if the intruder was armed and was threatening you.

In order to avoid breaking the law, you may need to beat the intruder to death with the unloaded shotgun.

It is not clear from the Firearms Act whether that would be a breach of your licence conditions, but you may have a defence if you are not using the shotgun as a firearm.

It may not be an offence, for example, to use the barrel for cracking walnuts. As I do not want to be taken to task by the police again, I might add that walnut cracking is not an appropriate use for a shotgun.

Even if you did not break the law by using your gun as a club, it would still be necessary for you to carry your firearms licence with you when you were clubbing the intruder, even if it is in your own home.

Otherwise you would be committing another offence, the maximum penalty for which is a fine of $5000.

The best solution if you have to defend yourself in your home and you want to obey the law, is to use as a weapon something other than your licensed firearm.

* John Goldberg is president of the Law Society of SA.

I think might need to get a few more  knives  and a couple of Bats  

[Hazcat]

Phil,

I now understand the fairy icon!  Your government has successfully emasculated their subjects.

[Timothy]

One of us will ship you a Louisville Slugger.  Much better mass and heft than one of those piddly little cricket bats...

 

[tombogan03884]

One of us will ship you a Louisville Slugger.  Much better mass and heft than one of those piddly little cricket bats...

 

Much more ergonomic for clubbing as well.    
At least Australia recognizes the right to self defense. In England the home owner is liable if the intruder hurts himself breaking in.

[TAB]

Much more ergonomic for clubbing as well.    
At least Australia recognizes the right to self defense. In England the home owner is liable if the intruder hurts himself breaking in.

US too. 

[Sponsor]

[Badgersmilk]

"Dead men tell no tales."  & "You were afraid for your life." = self defense

Get a Guard Kangaroo???  

I hear they've got a mean kick!  

[PegLeg45]

"Dead men tell no tales."  & "You were afraid for your life." = self defense

Get a Guard Kangaroo???  

I hear they've got a mean kick!  

A 'Combat Wombat' might be better.....

Sorry you have such laws, Phil.....and I'm still praying we don't end up in the same boat.   

[fightingquaker13]

To quote the Gunny "Jesus Christ! You've got be s@#$% me Pyle"! That is insane. You can have the gun, just not use it for SD? In what alternate universe does this make sense? The old rule of thumb is that you treat every firearm as if it were loaded. In my house, its darn good policy. I learned from my grandad. He was asked by my (soon to be) aunt "Is that gun loaded"? He answered "It wouldn't be much use if it weren't". Most, though not all, are kept with a full mag and an empty chamber. Since I don't have kids, there will be no scrambling for the keys to trigger locks either. Take your country back Phil!
FQ13

[Badgersmilk]

Home of the platipus, Left wing Bizaroworld!

Still, anyplace that was used to film Road Warrior is OK in my book!   Not to mention Aussie's refer to kangaroos as "rodents"...  6' tall rats have GOT to be the next best thing to Zombies!!!  And you can shoot all you want!!!!!!!!

[tombogan03884]

Home of the platipus, Left wing Bizaroworld!

Still, anyplace that was used to film Road Warrior is OK in my book!   Not to mention Aussie's refer to kangaroos as "rodents"...  6' tall rats have GOT to be the next best thing to Zombies!!!  And you can shoot all you want!!!!!!!!

Makes "Harvey" a little more believable.