Self Defence -Home Invasion

asagaai · 28-03-2016, 09:33 PM

So in Newcastle a person broke into a house in Hamilton, and he died after being detained by the homeowner.

The invaders sister says he was peaceful etc, and there is some allegation he did not break in but was attending a party, but he had just got out of gaol for other break and enters. Lets assume he did break and enter at night, and was up to no good.

Law says you can use reasonable force based on what you perceive as being reasonably required to protect yourself.

So, you are in your house at night- woken by noise- and a largish 33 year old guy is in your house, you have a wife and kids sleeping- what do you perceive as reasonable force to protect yourself and your family....

Is it yelling, using fists, cricket bat or baseball bat, an axe stored on cupboard, or perhaps a gun stored in a gun cabinet????

Thing is in the spotlight of a court case, the Judge looks through the prism of hindsight and with benefit of time, you are there and have split seconds to decide how to react to safeguard yourself and your family...what do you do?

**gregaust** · 28-03-2016, 09:35 PM

yep , saw it all . The burglar had previous break and enter charges and not long out of prison for them . Deserves what he got i believe . That poor man was defending his family

After seeing his family on TV whinging I can see he got what was coming. He was detained as a citizens arrest and was ok when police got there . He must of bumped his head lol

2011G6E · 28-03-2016, 10:22 PM

Idiotic ex-police security guy on TV this morning said "proportional force" must be used..."if they have a gun you can use a gun, if they have a knife you can use a knife, if they have a stick, etc".

NO.
If they have any weapon at all, and you can access one, USE A GUN.
What sort of moronic "security expert" would actually advise you to find a knife and engage in a knife fight with someone who was in your house??? What a brainless suggestion...at the very least you're going to end up sliced up, even if you "win". But knife fights are a messy dangerous business. You're going to get badly hurt, possibly killed, just so you can what, give the burglar an even chance?

Don't pussyfoot around. As the old saying goes, "Better to be judged by twelve than carried by six"...if someone is in your house, keep hitting until they stop wriggling, simple as that. If you have a gun, shoot until they fall down and are no longer a threat.

The outcry over this case is enormous...the support for the homeowner is vast.

As for the mother on TV saying her "baby boy" was a good boy and dindoo nuffin wrong...well apart from a long history of break and enter and only just getting out of prison for violent robbery that is...

In the terrible chance that this ever happens to anyone here, then legal advice I saw many years ago would seem to be in order...
The first and only words to leave your mouth in your statement to police (until a lawyer turns up) are "I was in genuine fear of my life".

Or, in the legal opinion of the esteemed Sir Grumpy Cat, QC....

lgpking22 · 28-03-2016, 10:41 PM

Alot of security guys i know give the advice if its life or death choose life as only telling your side of the story instead of both is easier however if all things were equal you were walking down the street somebody punched u in the face you cant pull out a knife and stab them in self defense. The law is an **** but there is a method to the madness of proportional force. For instance if someone calls you a faggot and abuses you can you punch him in the head and kill them? hence why ever case is judged on its merits "theoretically" but when it comes to ones home to me the law should be crystal clear if you dont belong there whatever happens happens in my book.

Yellow_Festiva · 28-03-2016, 10:46 PM

Problem is say said chap has a heart condition or any other medical issue.

Confront him, pop him in a head lock and he carks it.... Perhaps any other normal person would have just got away with neck bruising.

He had a history of crime and looked to be on the larger size, and if the story is as told entered a house un-invited with the purpose of robbing or worse still kidnapping / child molestation.

No one invited him in, this was bound to happen sooner or later.

I feel more sorry for the guy that owned the place.... Hopefully a law firm that wants a bit of publicity steps in and helps him out.

I hope he gets off....

Ben73 · 28-03-2016, 10:48 PM

They say don't use excessive force, but it's hard to judge what is excessive force when you have been woken by a stranger at 3am and you are now in a fight with them in the dark. You have no idea about how strong they are, how good they are at fighting, what drugs are in their system, etc. What are you supposed to do keep asking them if you are hurting them too much?

Apparently he broke the guys neck while holding him in a choke hold. That is probably a pretty good way to hold a violet person while waiting for police, I can assume the crim would of been not sitting quietly but would of been contentiously lashing about trying to attack the homeowner. What would you do? keep the force on him until he stopped lashing out, or be more gentle with him?

2011G6E · 28-03-2016, 10:53 PM

Quote:

Originally Posted by Ben73

They say don't use excessive force, but it's hard to judge what is excessive force when you have been woken by a stranger at 3am and you are now in a fight with them in the dark. You have no idea about how strong they are, how good they are at fighting, what drugs are in their system, etc. What are you supposed to do keep asking them if you are hurting them too much?

Apparently he broke the guys neck while holding him in a choke hold. That is probably a pretty good way to hold a violet person while waiting for police, I can assume the crim would of been not sitting quietly but would of been contentiously lashing about trying to attack the homeowner. What would you do? keep the force on him until he stopped lashing out, or be more gentle with him?

Oh I'm sure he was a "gentle giant" as the family described, and when caught said "What-ho chaps...it's a fair cop...I'll just sit here quietly and have a cup of tea while I wait for the coppers to arrive and take me away". It was all the big nasty homeowners fault for trying to stop him from escaping.

As we see with bans on police car chases, the higher-up authorities and government obviously think it's awfully unfair to not give the criminals a fair chance at escaping.
Bad sport, and all that to chase them down and stop them.

lgpking22 · 28-03-2016, 11:16 PM

having just read the story if it is true the home owner chased the offender out onto the foot path he is in alot more trouble.

asagaai · 28-03-2016, 11:19 PM

The argument may be that at some point of the headlock the offender morphed to non threatening and then the force became unreasonable to the threat, ie was not self defence but intentional force to effect an arrest.

If so, and the self defence is not available as a defence to murder, the defence of provocation may possibly reduce a charge of murder to manslaughter.

So there is this issue-you headlock a biggish 32 year old guy in a headlock initially defending yourself in your home, and at some point you need to make a decision when it is not self defence but an arrest situation, and moderate your force to fit, moderating and increasing force depending on how vigorous the guy is fighting back.

Seems pretty straight forward...not.

But yeah- if he chased him out onto footpath to effect an arrest- that is a whole different scenario.

lgpking22 · 28-03-2016, 11:24 PM

it will be more the fact he has chased him out onto the foot path where the head lock has i can only assume begun you cannot use self defense when you chase a person down then get into a fight regardless of the circumstances. Once he has ran off the threat is over. if you then wish to proceed with an arrest or a citizens arrest and this happens to security guard or cops and something goes wrong you are liable. Once you have restrained someone you are effectively responsible for there well being now.

Pol84 · 29-03-2016, 12:04 AM

As a Police Officer this story really kills me - excessive force is such an easy trap to fall into without training or knowledge.

Use of force is so heavily managed in the Police that we have to be so careful, and the training reflects that. Stay away from the head & neck and avoid joints, and also think about what your resolution is. You can't put someone on the ground and hold them there on their stomach because the likely hood of positional axphyxiation is high - they need to end up on their side if your going to keep them on the ground, but if you do that, you want their hands restrained (handcuffs for us). Stay away from the neck mainly because of the obvious choking risk, but also if you've got them in a head lock, both your arms/hands are tied up and they're arms/fists are free to strike you wherever they can, and your natural reaction is likely to squeeze harder. So many traps and dangers.

If this bloke had fought the intruder to the point that the intruder left and ran away, then he was unlikely to face trouble. However, if as the reports say, he chased the intruder and used further force on him, then that becomes hard to justify...

Personally I'd say that no one should attempt a citizens arrest if it's going to involve using any force, because if it goes wrong you'll be heavily scrutinised by a Magistrate, Judge or Coroner who (in my opinion) is sometimes too biased towards the 20:20 hindsight and forgets the adrenaline, panic, fear etc.

Similar to the story a few weeks ago where a guy chased the thief who stole his car, did a PIT manoeuvre on it and conducted a citizens arrest. I would have been out of job for that. He's a very lucky man that he's not in the same situation as this case.

I feel sorry for the bloke in this situation. If only he knew what was going to be (technically) reasonable force to use, he could be a free man right now.

JC · 29-03-2016, 12:29 AM

Quote:

Originally Posted by lgpking22

it will be more the fact he has chased him out onto the foot path where the head lock has i can only assume begun you cannot use self defense when you chase a person down then get into a fight regardless of the circumstances. Once he has ran off the threat is over. if you then wish to proceed with an arrest or a citizens arrest and this happens to security guard or cops and something goes wrong you are liable. Once you have restrained someone you are effectively responsible for there well being now.

Either way, in this case, the original offender won't be doing it again, which is a good thing IMO. I hope the guy gets off, and I wish there were more like him taking on the criminals and winning (though not to the point of knocking them all off - but I doubt that was his intention).

asagaai · 29-03-2016, 12:42 AM

This reminds me of a certain country in Africa, where crime was high and bloody, houses had security fences, windows had thick bars on entire outside covering entire window, and homeowners had guns.

Often intruders would clamber over the security fence, and the homeowner inside the house would shoot the intruder through the security bars-dead.

Unofficial police "advice" to the homeowners was to drag the dead body into the house, then call the force. The police then did a very basic review and reported intruder inside and homeowner shot them in reasonable defence of themselves. Obviously did not do ballistic testing of gunpowder burn and splatter, bullet entry velocity and angles etc....

Really, this is probably murder or high degree manslaughter, the homeowner should have called out, fired warning shot, and if intruder tried to break in shoot intruder in leg.

I remember hearing a story first hand from an attractive blond, about 34, lived on a property in a game reserve-husband was away flying. Had a security brick wall surrounding, an intruder was climbing over wall, she got an axe and chopped his hand off, hand fell her side into property, intruder on other side withdrew remaining hand and fled the scene....That was probably reasonable force given her fear and situation....

Iggle Piggle · 29-03-2016, 10:51 AM

I get that there is a big difference between taking him down inside your home just outside your daughter's bedroom, and chasing him out onto the street and taking him down on the footpath - totally get the difference.

Still doesn't sit right with me that he is charged with murder. Like most I would prefer the homeowner faced no charges, but if there had to be a charge I would have thought manslaughter would be the more appropriate charge (which given the mitigating circumstances I would hope he would either beat the charge or get a suspended sentence).

LG17 · 29-03-2016, 11:04 AM

Quote:

Originally Posted by Iggle Piggle

I get that there is a big difference between taking him down inside your home just outside your daughter's bedroom, and chasing him out onto the street and taking him down on the footpath - totally get the difference.

Still doesn't sit right with me that he is charged with murder. Like most I would prefer the homeowner faced no charges, but if there had to be a charge I would have thought manslaughter would be the more appropriate charge (which given the mitigating circumstances I would hope he would either beat the charge or get a suspended sentence).

I thought for murder there had to be some sort of premeditation.

Anyhow, if the initial facts are true, I hope he gets off.

**FairmontGS** · 29-03-2016, 11:44 AM

The guy is dead. I'd say that's the classical definition of excessive force...

**Jastel** · 29-03-2016, 12:01 PM

If you are not invited in you leave your rights at the property boundary in my book...

The Yeti · 29-03-2016, 12:07 PM

my concern is the guy that's house was broken into also has form.

he didn't apply for bail and it was formally refused?

I think theres more to the story

SYZ · 29-03-2016, 12:08 PM

Considering what I've seen of this incident, and having to rely on the usual poophouse standards of our journalist, I get the impression that there's a lot more to this story than is first apparent.

First, it seems that the offender was Aboriginal—is the homeowner also Aboriginal? If so, were they known to each other? Does the homeowner also have a criminal record? Maybe this started out as some sort of payback.

Why chase the bloke out into the street and punch his lights out? Surely getting him out of the house, and away from your family would've been an adequate response. Wouldn't you presumably run back inside and immediately call the police?

And who exactly is the mysterious "friend" that helped the homeowner beat up the alleged burglar?

As I see it, I'd have to know a lot more of the actual details before I formed any sort of opinion about the rights and/or wrongs in this scenario. I don't think however that two blokes beating up another bloke is gonna stand up in court as "self defense" whatever happens.

2011G6E · 29-03-2016, 12:47 PM

Quote:

Originally Posted by SYZ

Why chase the bloke out into the street and punch his lights out? Surely getting him out of the house, and away from your family would've been an adequate response. Wouldn't you presumably run back inside and immediately call the police?
.

First, if someone is caught in my childs bedroom, they WILL get chased down and beaten. They won't get waved bye-byes as they run out the front gate.

Second, "call the police"? Yes you can...and in half an hour or more when they turn up the guy will be long gone.

Bring in firm strong laws allowing the public to make citizens arrests and don't worry if they don't word things properly, as long as the person has genuinely committed a crime, that should be enough to hold someone until the real police turn up.

Also the "your home is your castle" laws that stand in many countries would be a good idea as well.

And the memes are starting to come thick and fast online...

**MercurySilver** · 29-03-2016, 12:52 PM

well coppers have no prob with shooting someone in self defence (im all for it)
so you taking a swing at some ******** coming at you with a knife is fine imo

go the knees, fake the head swing and go down low i reckon
then you can sit back and boil the kettle waiting for the coppers as he is laying in pain holding a stuffed knee

asagaai · 29-03-2016, 12:53 PM

Quote:

Originally Posted by Jastel

If you are not invited in you leave your rights at the property boundary in my book...

Well- a person who attends your property uninvited, walks up the driveway to sell you crap or on a mission to "save you" and spread the "gospel truth", slips on the driveway, sues you as occupier for failing to take reasonable care for visitors who you should have foreseen would walk up the driveway uninvited.

If the driveway is gradient steep and fails to meet reasonable coefficient standards, law says occupier owes an uninvited visitor a duty of care, and is negligent for not providing safe driveway, despite person being uninvited.

So the law does not say uninvited guests leave rights at the property boundary. My example is civil, but also seems to apply to criminal.

Still, I think that if someone breaks into an occupied house, they must expect that homeowner will perceive significant risk and will use whatever comes to hand as a reasonable response to perceived risk, and in that case the homeowner should face no charge on basis of self defence, ie self defence should be extended and KNOWN to provide easy coverage to homeowner in that situation to in effect provide a form of robust immunity to homeowner- then perhaps deviants would think a bit more before break and enter occupied premises.

**MercurySilver** · 29-03-2016, 12:56 PM

gotta say that if a jehovah came knocking on the door and slipped on some gravel id prob call him a peanut for not watching what he was doing

asagaai · 29-03-2016, 01:02 PM

Quote:

Originally Posted by MercurySilver

gotta say that if a jehovah came knocking on the door and slipped on some gravel id prob call him a peanut for not watching what he was doing

You would call him/her more than that if your were sued $750,000 and had let your home public liability insurance lapse.....

Jess1992 · 29-03-2016, 01:22 PM

I live with another friend of mine who is also female. What do we do if a man breaks in while we are asleep? Ask him to politely leave and hope he doesn't rape/and or kill us? Or would we be able to use any means necessary to ensure our safety?

I am so scared at home some nights because I could not physically protect myself without some sort of weapon

2011G6E · 29-03-2016, 01:24 PM

Much has been made of the guy not immediately applying for bail.

However, he was probably advised not to make any statements by legal eagles until he's in front of a magistrate.
I did a security course many years ago and they said "The first and ONLY words out of your mouth in a situation where you have ended up sadly having to seriously injure or kill someone in self defense are "I was in genuine fear for my life"...or the life of the person you are defending against an attack". And then say NOTHING more until lawyers are present...don't admit to anything, don't apply for bail, don't do anything until you have lawyers right there with you.

They say "anything that you say may be used against you in a court"(or words to that effect) for a reason you know....

Save the champagne and laughing for when you are back home with your family...

**Ratmick** · 29-03-2016, 01:25 PM

Quote:

Originally Posted by 2011G6E

If you have a gun, shoot until they fall down and are no longer a threat.

I'm not sure advocating shooting anyone in your own home is a good or even desirable thing, even if it seems warranted.

That sort of thing only works in the US where they have a loaded firearm in the bedside table and you have a complete and utter disregard for even rudimentary gun safety. Normally the Police here would insist you have yours locked away in a gun safe and quite frankly if you have a loaded one in your bedside table then you're an idiot (especially if you have kids in the house).

However I'm not sure many crooks/rapists/whatever would stand by and wait for you to unlock your gun cabinet, unlock your ammo drawer, put your rifle/pistol together (they should be stored with the bolt out, if possible), remove the trigger guard lock (if fitted), load a magazine, c ock the weapon, take the safety off AND then aim and shoot until they fall down.

However given most houses in Australia are built with plasterboard interior walls, which are the ballistic equivalent of tissue paper, and your family is asleep in rooms behind these walls, maybe this is a good thing...especially if they are not where you expect them to be (i.e. they're not in bed, they're moving around their room or around the house).

I know in my place there aren't many rooms you could get away with firing a weapon, there are bedrooms down both ends of the house and down one full length...you'd need to corner any intruder in my rumpus room where it's double-brick and you'd need the lights on. I live in the middle of nowhere in a paddock. If you live in suburbia or in a flat or townhouse with shared walls...then where are the bullets going to go once they leave through a window or door?

As for the States and people justifying semi-automatic weapons for 'home defense'...well that's going to be a world of hurt if they're used.

Firearms aren't the answer. They're not even the answer in the States for all the School shootings, most people are not trained tactically in the use of firearms and if you're going to be prowling around a campus looking for gunmen you are going to get shot by the people that are.

Jess1992 · 29-03-2016, 01:27 PM

Quote:

Originally Posted by Ratmick

I'm not sure advocating shooting anyone in your own home is a good or even desirable thing, even if it seems warranted.

That sort of thing only works in the US where they have a loaded firearm in the bedside table and you have a complete and utter disregard for even rudimentary gun safety. Normally the Police here would insist you have yours locked away in a gun safe and quite frankly if you have a loaded one in your bedside table then you're an idiot (especially if you have kids in the house).

However I'm not sure many crooks/rapists/whatever would stand by and wait for you to unlock your gun cabinet, unlock your ammo drawer, put your rifle/pistol together (they should be stored with the bolt out, if possible), remove the trigger guard lock (if fitted), load a magazine, c ock the weapon, take the safety off AND then aim and shoot until they fall down.

However given most houses in Australia are built with plasterboard interior walls, which are the ballistic equivalent of tissue paper, and your family is asleep in rooms behind these walls, maybe this is a good thing...especially if they are not where you expect them to be (i.e. they're not in bed, they're moving around their room or around the house).

I know in my place there aren't many rooms you could get away with firing a weapon, there are bedrooms down both ends of the house and down one full length...you'd need to corner any intruder in my rumpus room where it's double-brick and you'd need the lights on. I live in the middle of nowhere in a paddock. If you live in suburbia or in a flat or townhouse with shared walls...then where are the bullets going to go once they leave through a window or door?

As for the States and people justifying semi-automatic weapons for 'home defense'...well that's going to be a world of hurt if they're used.

Firearms aren't the answer. They're not even the answer in the States for all the School shootings, most people are not trained tactically in the use of firearms and if you're going to be prowling around a campus looking for gunmen you are going to get shot by the people that are.

I know I would feel a lot safer at home with a firearm. Why is it only the criminals can arm themselves but not the innocent home owners?

SYZ · 29-03-2016, 01:28 PM

Quote:

Originally Posted by 2011G6E

First, if someone is caught in my childs bedroom, they WILL get chased down and beaten. They won't get waved bye-byes as they run out the front gate.

I'm guessing that as an older bloke, I'd just be happy to get the intruder out of my house and on the run. I'd never chase them and try and beat them up. What's the point of that—they might pull a knife or a gun. Why run the unnecessary risks? Incidentally, where did you read that the intruder was found in the children's bedroom. I only saw that he was discovered "in the house".

Quote:

Second, "call the police"? Yes you can...and in half an hour or more when they turn up the guy will be long gone.

Yeah, I understand that. But they can build up a profile on similar B&Es and often patterns develop. Realistically you can't expect the police to arrive in 2 or 3 minutes.

Quote:

Bring in firm strong laws allowing the public to make citizens arrests and don't worry if they don't word things properly, as long as the person has genuinely committed a crime, that should be enough to hold someone until the real police turn up.

Citizen's arrest laws are already in place.

Section 462A of the Crimes Act 1958 authorises the use of such force not disproportionate to the objective as a person believes is reasonable grounds to be necessary to:

prevent the commission, continuance or completion of an indictable offence; or
lawfully arrest a person committing or suspected or committing any offence.

In this particular case, it was considered that the homeowner used disproportionate force to prevent the continuance of the alleged crime. Hence the charge of manslaughter. So if you'd been this homeowner, your family would now be visiting you in the lockup. Think about it.

malazn mafia · 29-03-2016, 01:37 PM

Quote:

Originally Posted by Jess1992

I know I would feel a lot safer at home with a firearm. Why is it only the criminals can arm themselves but not the innocent home owners?

Incentive to be creative with what you arm yourself with perhaps?

But seriously, what is Australia coming to? No weapons, no pursuits, police in fear of being sacked for doing their jobs and retreating to low risk jobs like shooting radar guns while someone is being robbed or bashed down the street or a domestic violence situation spirals out of control. Maybe the other side of the pasture is always greener , but it looks like the US Police force, with the shoot outs, pit maneuvres and relentless car chases, no matter how hated they seem to be, are actually more mature and effective in performing their duties than our toothless, limp-wristed politically correct 'what about the children', 'criminals have rights too' approach? Is being a burglar a legitimate career or something, if they also have rights in going about their business?.. At the rate we are going, I think it is becoming a viable career path: cops can't chase you and if you get hurt going about your business, sue or imprison the owner. What more can a robber ask for ??