The Castle Doctrine

[Gwion]

I didn't say anything about not using a weapon. If a trespasser is resisting eviction (ie: doesn't turn and run as soon as they see you or you tell them f*** off) you can use Any and All reasonable force.

[bladeracer]

I didn't say anything about not using a weapon. If a trespasser is resisting eviction (ie: doesn't turn and run as soon as they see you or you tell them f*** off) you can use Any and All reasonable force.

So if your only weapon happens to be a gun you would consider it reasonable to use it?

[Gwion]

And now we get back to my original response of , "if you mean shoot first and ask questions later....."

[bladeracer]

And now we get back to my original response of , "if you mean shoot first and ask questions later....."

Which has nothing to do with my question...
If somebody is attacking you then the "questions" have already been asked and answered, and you're left with a gun and the requirement of defending yourself.

It sounds like you actually agree that it would be reasonable to use a gun if it's all you have despite it not being "proportionate, but you don't want to state that.

The problem is, I doubt a "court" in Australia would back a defender in that situation, which is why so many people want the law clarified and specifically stated where exactly an Australian is allowed to use whatever means is _available_ to defend themselves regardless of whether it's "disproportionate".

Sadly, I don't believe our judicial system will make any such clarification until there have been far too many unnecessary injuries and deaths. I'd love to know what event caused our laws to evolve to protect criminals at the expense of the innocent, I would guess it would be because people somewhere make money out of keeping it this way.

[GLS_1956]

Here is two cents worth of info and opinion from an Okie, that is someone who proudly resides in the State of Oklahoma, where we have both the Castle Doctrine, aka Domicile Protection Law, and a "Stand your ground Law".

Castle Doctrine and remember every State, that has the Castle Doctrine, has its own wording : Here you may use force, including deadly force, to protect yourself, family members, and/or guests from attack that you perceive may be either life threatening or causing serious bodily harm in nature. this means if you come home from the range and see someone loading you wide screen TV into your fishing boat, which they have hitched to their truck, you can't just go and shoot them. The Castle Doctrine is for use only for protection of lives, not property. Now if the afore mentioned felon attempts to attack you, you may use force, but if said felon runs away or stops and sits down, you can't shoot them. Initially a prosecutor will make the determination if your actions fall under the Castle Doctrine, or ultimately a jury.

A number of years ago, in another state, a Japanese foreign exchange student mistakenly entered the wrong house, thinking he was going to a Halloween party. The home owner upon waking up and finding a stranger in his home armed himself and repeatedly ordered the stranger to stop, please remember this took place after midnight. The exchange student continued to advance towards the home owner even though the home owner was shouting for him to stop and that he, the home owner, was armed. It is believed that it was the exchange student's poor understanding of the English language being the reason he continued to walk towards the home owner. The home owner fired a single shot that killed the exchange student. The state declined to prosecute the home owner because it felt he was acting in self defense under its Castle Doctrine.

Not as many years ago, here in Oklahoma, a young mother who's husband had died just the day before, of cancer shot and killed one man and wounded another man who were attempting to break into her rural trailer home, it is believed that the duo were after the pain medications her husband was on, she fired through the door of the trailer while the assailants were attempting to kick it in. She was on the phone with the County Sheriff's office at the time who recorded the call at that time. As in the previous incident, she was not charged, on account of the state's Castle Doctrine.

Stand Your Ground: "Stand Your Ground" is quite similar to the Castle Doctrine in that it allows you to use deadly force in protection of yourself, or others, anywhere you have the legal right to be, in your car, at a restaurant, or at a grocery store.

[tom604]

king hit,felt like head had been stomped by said manhole, bit dazed and confused, said sorry,left,,,,,that's how i read it but could be wrong

[Tripod]

At the end of the day all these discussions are all a load of s**t because when it happens your natural instinct of Fight or Flight will kick in and you will either try to get away or defend yourself. In the heat of the moment you wont be wondering if it is legal or excessive or any such thing. And there's always this old chestnut
"It is better to be judged by twelve than carried by six"

[Gwion]

king hit,felt like head had been stomped by said manhole, bit dazed and confused, said sorry,left,,,,,that's how i read it but could be wrong

Nope... Completely wrong.

[Gwion]

Tripod.
As Sifu told me when I was training potentially leathal techniques:

"Do what you have to do and worry about the law later!"

[Supaduke]

It's fairly common sense really. If someone has a weapon you can use one yourself. If they are unarmed and you stab them to death or shoot them you are obviously going to have a problem. It's all about 'reasonable' use of force.

Check out section 462a of the crimes act in regards to reasonable use of force.

[Gwion]

Which has nothing to do with my question...
If somebody is attacking you then the "questions" have already been asked and answered, and you're left with a gun and the requirement of defending yourself.

It sounds like you actually agree that it would be reasonable to use a gun if it's all you have despite it not being "proportionate, but you don't want to state that.

The problem is, I doubt a "court" in Australia would back a defender in that situation, which is why so many people want the law clarified and specifically stated where exactly an Australian is allowed to use whatever means is _available_ to defend themselves regardless of whether it's "disproportionate".

Sadly, I don't believe our judicial system will make any such clarification until there have been far too many unnecessary injuries and deaths. I'd love to know what event caused our laws to evolve to protect criminals at the expense of the innocent, I would guess it would be because people somewhere make money out of keeping it this way.

It doesn't matter what the weapon is or the perceived leathal threat. Leathal force is leathal force.

Problems arise when you bring in a firearm. At the least you will be looking at questions about your safe storage practices. Then there might be a question of discharging within 250m of a dwelling.

What it comes down to is being able to prove that You had 'reasonable fear' for the 'life and safety' of yourself or others. If you can prove this, even a pre-meditated strike can technically be viewed as self defence.

[happyhunter]

Castle doctrine lays down that there is no duty to retreat from an intruder in one's home. A justifiable homicide which occurs inside one's home is distinct as a matter of law from castle doctrine's no duty to retreat. As such, states with justifiable homicide provisions in pertaining to one's domicile, do not in themselves authorize indiscriminate violence therein—the mere fact that one is trespassing is no defense per se to justifying homicide.

In addition to the states listed below, the U.S. Territory of Guam has the Castle doctrine as law.

https://en.wikipedia.org/wiki/Castle_doctrine

So you can have a justifiable homicide without castle law and castle law doesn't automatically deem a homicide justifiable. Australia has justifiable homicide so no need for castle law if you are acting in genuine self defense.

[Gwion]

Rubbish, you didn't attempt to threaten or attack anybody did you, though?

It doesn't matter in my understanding of Castle Law. Under castle doctrine, if they thought I was a threat they could have killed me. Full stop. [edit: after reading GLS full post it seems I am mistaken and that the laws apply no differently than in Australia, just phrased differently]

So, I'll reiterate my FULL original response:

If you mean shoot first ask questions later, I disagree.

If you mean use any force necessary to protect your home and safety then I have my own version of the castle doctrine going on there.

Paraphrased.

Do what you have to do and worry about any fall out later.

[Supaduke]

And if it all sounds too complicated, then don't use a firearm to defend yourself. If you are incapable of making the tough decision on the justifiable use of lethal force then I suggest you don't consider the use of lethal force.

I'm sorry but the "it's all too hard" arguement is just a cop out.

[Gwion]

Totally agree, Superduke.

And I will reiterate:

There is NO legal requirement in Australia for a person to flee a violent attack. Only to desist once that attack is neutralised.

[Gwion]

So you can have a justifiable homicide without castle law and castle law doesn't automatically deem a homicide justifiable. Australia has justifiable homicide so no need for castle law if you are acting in genuine self defense.

Exactly.

[doc]

So for those more knowledgeable than me

In Australia - if you killed someone who has entered your home - is the proof of burden that the force was reasonable on you, or is the proof of burden that the force was unreasonable on the prosecutor? (or does it go to court and you have to prove yourself innocent, or would it normally not get that far)?

In America - same question?

What I see as a problem is the misunderstandings and difficulty in Australia of understanding your rights.

On a positive note - I see that some train passengers the other day performed a citizens arrest on a bloke who went 'crazy' and was biting a female, acting like 'an animal' and it seems as though it was fine for them to do this. (No charges laid against them)...

[Gwion]

The police are the first line of facing 'the reasonable man'. If your actions are reasonable, no charges will be laid.

Of course, it the opponent is dead or a bloody pulpy mess then question will have to asked regarding just how reasonable your actions were.

I can't say we're the burden of proof lies. A quick search shows the SA legal handbook states that burden of proof in criminal matters lies with the prosecution to prove beyond reasonable doubt, in civil matters with the plaintiff. Assault falls into criminal jurisdiction.

[Supaduke]

The burden of proof is always on the prosecution. You as the accused can however defend yourself against such accusations. You will be asked to explain your actions. The big one that many people use is "I was cleaning my gun". Questions will then be asked about why you then had readily available ammunition. The use of a firearm in the eyes of the law is intent to kill. You won't be able to argue that your intention was to wound as anyone shot anywhere on their body has a reasonable chance of being killed.

There is no point throwing various scenarios into the mix to support the arguement. The chances of having legal access to a loaded firearm in time of need is next to non existent.

Hard to prove the danger was imminent and immediate if you have time to go to your safe , retrieve a firearm, go to your ammunition storage , retrieve ammo, load your firearm then return to danger.

No point getting angry about that either. It's the law as it stands, I didn't write it.
Australian law strongly resists efforts to allow firearms to be used as an offensive or defensive weapon against humans. The law is written the way it is for a reason.

As I have mentioned in other posts, the chance of a random home invasion in Australia is extremely remote. If you have a targeted home invasion I suggest you pay your debts or start questioning some life choices.

You can defend yourself , your family, your home. It is enshrined in law. The law is not crazy and unworkable. It allows the 'reasonable use of force'.

Firearms as an actual weapon are limited in Australia to Law enforcement and the military. Law Enforcement must undergo training in the use of firearms. 80% of the training is theory and learning about the legal consequences of using a firearm against a person.

Australian law is written to stop acts of vigilantism. If you are going to pull the trigger you want to be damn sure it's justifiable. Yes it's a complex issue and rightly so. Like I said , if it's all too hard to understand then I suggest you leave your firearms in the safe where they belong. Have a cricket bat handy behind the door if you wish to live a life of fear and paranoia. Or learn a martial art.

And please don't throw stupid scenarios at me to try and get your point across. I'm just presenting the fact as they stand in Australia.

[pomemax]

As a police officer told me an intruder is not supposed to be there and by the nature of intruders they generally do not tell people where they are going to intrude.
So whats the problem ,If you remove them from the premises the condition they are in is not your worry, but your family is.
What trips people up is they have an intruder beat the crap out of them and leave them in the lounge room then call the police instead of dumping them in the next street. .The reason I was taking to the police was we had an intruder and we called the police he told me it was easier for me just to remove the person if it should happen again what realy gets me is the bloke that came in tried to get me to pay for his Dr and false teeth that he needed ,like that was going to happen .
NOT ALL HOME INVASIONS ARE FOR MONEY .
"As I have mentioned in other posts, the chance of a random home invasion in Australia is extremely remote. If you have a targeted home invasion I suggest you pay your debts or start questioning some life choices" that statement is crap and you know it sometimes its just a junkie chancing a break in or some sicko looking to have a go at your Mrs

[doc]

Thanks.

@Supaduke - my question wasn't related from a firearm point of view (although I guess this site being firearms related I can understand why you assumed that) - but from use of any deadly force. Be it cricket bat, knife, etc. I agree - the chances of having a firearm and ammunition legally readily available in a situation like that in Australia is next to none. I have no intention of throwing stupid scenario's at you to try and get across my point. (Not sure I have a point ... I'm just asking questions )

In fact, in my opinion any number of those weapons are a far more effective method (if trained in and used correctly) than a firearm in a home invasion situation in our country due to our laws and the time taken to 'get armed'.

Although I'm suspicious that random home invasions are on the increase. I know through the local police that home invasions have also increased in our area, and added to this the reports of the apex style invasions I think that invasions into non-crime related houses are on the increase.

It seems to me as though criminals are becoming more brazen. (Whether that's due to drug effects, desperation, increased confidence with getting away with it, or little punishment - especially for teenage offenders I don't know).

I hate the thought of ever having to use deadly force, and would imagine I would do anything necessary to avoid it - with the line drawn at preventing attacks against my family.

[Gwion]

I hate the thought of ever having to use deadly force, and would imagine I would do anything necessary to avoid it - with the line drawn at preventing attacks against my family.

Ditto.
Though I will add potentially lethal attacks against myself to the list.

[Supaduke]

@doc, was more an in general response more so than you as an individual.

There is no real need for a castle law doctrine in Australia, we essentially already have it with the reasonable use of force act.

Threats need only be perceived to be real for you to act on it. The act also allows "as much force as required".

So you are quite within your rights to punch the living suitcases out of a home invader if he keeps coming at you or your family. If he has a weapon and you wrap a lump of 2x4 or a cricket bat around his head, so be it.

Any type of implement you have laying around the house can legally be used as a weapon.

It all changes with a firearm however.

The other danger with firearms people often don't consider. Most people are not trained in how to correctly use a firearm within a house. (Despite how much of an operator they believe themselves to be). There is a very real chance your high velocity hunting round ,if discharged , will penetrate your wall and enter a neighbors house.

You could end up being disarmed, now your knife wielding assailant has a rifle.

Your assailant may not comply when you yell "freeze mother f@&$er!!!" , are you trained what to do in that scenario.

The fantasy might be a Hollywood gunfight where you save the day.

The reality is it will be confusing, scary and very unpredictable. Adding firearms to that mix just won't end well.

[happyhunter]

So for those more knowledgeable than me

In Australia - if you killed someone who has entered your home - is the proof of burden that the force was reasonable on you, or is the proof of burden that the force was unreasonable on the prosecutor? (or does it go to court and you have to prove yourself innocent, or would it normally not get that far)?

A real life example of somebody shooting an intruder, intruder survived, in Australia, that I was involved in as a witness so no conjecture is necessary.

Unarmed man is shot in a lounge room after making a verbal threat. Police turn up *three* years later and arrest the shooter. Shooter is initially hit with a long list of nine charges, including attempted murder at the top of the list and arrested. A five hour interview follows (and I've heard the tapes), two hearings (shooter pleads guilty) in the magistrates court followed by trial and sentencing by the County court. This process happened over 18 months while shooter on bail.

Conclusion, shooter is convicted of the charge of 'endangering life', given a suspended sentence plus substantial bond (the result of breaking bond a lengthy custodial sentence) and a conviction recorded.

Interestingly, not one of the initial charges related to the firearms act. Two decades later the persons record comes up only as 'serious assault' on police system with no details of the assault.

[darwindingo]

I once encountered an intruder in the house, after I used reasonable force... It turned out that he ( a young fella ) had real s/bag parents and hadn't eaten in days, all he was looking for was a feed in the fridge.. Gee I was glad I didn't put an end to him ! he was actually a really nice kid ! Made him a feed and he has been mowing my lawns for several years for a few $ and a feed.. Just saying that one could make a bad judgment...

If he wasn't attacking you though then self-defence doesn't enter into it - anybody using any force at all deserves everything they get
Now put a knife in his hand and have him coming at you...completely different situation.

No. This is where the laws of trespass or 'assumed licence to enter' come in. If doors are unlocked you must revoke the assumed licence to enter. Ie: "get the f*** out!"

If they don't comply or show any sign of resistance they are now trespassing and you can employ any and all reasonable force to evict them.

If they have broken into a locked house they are immediately considered a trespasser and reasonable force can be employed.

I should have mentioned that he did have a kitchen knife in his hand that he was cutting meat of a roast with, he panicked and ran in my direction with it still in his hand. But was only trying to get out the door behind me, I was concerned for my safety at that time as I didn't know what his intention was. And yes the door he entered was unlocked.

[happyhunter]

Hard to prove the danger was imminent and immediate if you have time to go to your safe , retrieve a firearm, go to your ammunition storage , retrieve ammo, load your firearm then return to danger.

This is exactly what happened and happened in a few seconds.

[bladeracer]

NOT ALL HOME INVASIONS ARE FOR MONEY .
"As I have mentioned in other posts, the chance of a random home invasion in Australia is extremely remote. If you have a targeted home invasion I suggest you pay your debts or start questioning some life choices" that statement is crap and you know it sometimes its just a junkie chancing a break in or some sicko looking to have a go at your Mrs

The guy that came after me did nine-months for it. He pleaded guilty so I never even attended court.
Before he was released I was asked by the arresting detectives if I wished to make an application to prevent his release.
I asked them if they ever found out why he attacked me and all they could tell me was that he'd been out of jail for a fortnight, couldn't handle it staying with his mum, wanted to go back in for as long as possible and randomly picked me.
Based on that I had no reason to deny his release.
Of course, he spent the first few days out harassing me from the street whenever he knew I was there, and I kept Police advised of this.
Eventually he made the mistake of entering the property and vandalising my bike, so the same detectives "interviewed" him, then rang me the next day to say that he was heading to Sydney and I'd never hear from him again - I never did. I also never saw anything of the compensation he was ordered to pay me for the damage to my bike

[Supaduke]

Remote as in rare , as in not often. Never say never. My point was around 2% of households in Australia will be burgled at some point. Of those only about 10%-20% occurs when there is someone home. So 98% of us won't get burgled and if you do there is an 80% chance you won't be there.

But that's all off topic. This is in relation to what you can do about it if it does happen.

[juststarting]

I think naturally the conversation went to guns, however I didn't intend it to.

My simple, not so simple question, was about use of any force to overpower or kill the adversary. This is nothing to do with guns.

[juststarting]

Kinda disappointed genesis and hello kitty didn't jump in. It ain't a party without them.