Image at right: Castle, or stand-your-ground laws, are an issue in several western countries, including Australia, New Zealand and the USA.
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Background information
BackgroundCastle law or castle doctrine
A castle doctrine, also known as a castle law or a defence of habitation law, is a legal doctrine that identifies a person's dwelling or any legally occupied place (for example, a vehicle or home) as a place which permits one, in certain circumstances, to use force (up to and including deadly force) to defend oneself against an intruder, free from legal prosecution for the consequences of the force used. The term is most applied in the United States, though many other countries draw on these principles in their laws.
Depending on the location, a person may have a duty to retreat to avoid violence if one can reasonably do so. Castle doctrines lessen the duty to retreat when an individual is assaulted within one's own home. Deadly force may be justified according to castle law when the person taking defensive action reasonably fears imminent peril of death or serious bodily harm to him or herself or another. Castle law frequently allows the resident's perception of the threat to determine the reasonableness of the actions taken.
The difference between 'castle law' and 'stand your ground'
The castle doctrine allows homeowners or residents to use deadly force against intruders to defend themselves within their own homes. In contrast, the stand your ground doctrine allows proportional force to reasonably defend yourself at any location where you have a legal right to be.
Both doctrines require no duty to retreat. Though the castle doctrine is typically limited to a person's residence, the stand your ground doctrine applies anywhere. Also, the castle doctrine permits deadly force, whereas the stand your ground doctrine allows proportional force - which may or may not include deadly force depending on the danger being faced.
Current self-defence provisions in Australia
The provisions outlined below relate to defending your home but are not limited to this situation as self-defence can also be used as a legal defence in other circumstances.
Self-defence is a complete defence throughout Australia. This means that if you raise self-defence in a case, the prosecution must then prove beyond reasonable doubt that you did not act in self-defence. Otherwise, you must be found 'not guilty.' For example, if you were charged with assault and were able to raise some evidence that you were defending yourself, you would have to be found not guilty unless the other side could prove that you were not acting in self-defence.
Under section 418(2) the New South Wales Crimes Act 1900, a person is not guilty of an offence if they were:
1. Defending themselves or someone else
2. Preventing or ending unlawful deprivation of liberty of themselves or someone else
3. Defending their property from being taken unlawfully, destroyed, damaged, or interfered with
4. Preventing criminal trespass to any land or to remove a person committing criminal trespass
However, self-defence is not available if the person has either intentionally or recklessly caused death for above reasons three and four. And even if you are protecting yourself or someone else, the actions you take must be a reasonable response to the threat as you perceive it. This means that:
1. You must believe that there is a threat,
2. Your belief must be on reasonable grounds, and
3. Your response must be reasonable to that threat. This is sometimes referred to as proportionality, that is, the level of force you employ must be reasonable or appropriate to the level of threat with which you are confronted.
Excessive force
Using excessive force can be used as a partial defence to murder- in some circumstances, reducing a charge of murder to manslaughter.
Excessive self-defence inflicting death occurs when:
1. You believe that your conduct is necessary to defend yourself or another person (or prevent unlawful deprivation of liberty), but
2. Your conduct is not reasonable in the circumstances
Home invasion laws in Western Australia and South Australia
These two states have laws specifically dealing with self-defence to home invasion. These laws require that occupants who act in defence of themselves or another, or to protect property against an intruder, must believe on reasonable grounds that it is necessary to do so.
However, both states relax the proportionality requirement in the home occupier's response. This means your response may involve what is later judged as excessive force, but this would not be used to attach criminal liability to you as the home occupier.