Protecting Your Home from Intruders


A great deal of media attention has surrounded a recent case, where a Newcastle home-occupier was charged with murder after allegedly confronting and killing an intruder.

The case has left many wondering about their rights if someone illegally enters their home.

The Incident

In case you missed it – police say Richard James Slater, known as Ricky Slater, broke into a house on Cleary Street in Hamilton, Newcastle in the early hours of Saturday morning.

One of the residents, Benjamin Batterham, is believed to have found Mr Slater inside his house, resulting in a fight which spilled-out onto the street.

The brawl continued, with neighbours reporting being awoken by loud bangs and people running. Police arrived some time later, finding Mr Slater ‘detained’ by Batterham and one of his friends.

Slater is reported to have lost consciousness shortly thereafter. He was rushed to John Hunter Hospital in a critical condition, where he was placed on life support and given treatment for severe facial injuries.

Slater’s life support was switched off the next morning, and he tragically passed away. A few hours later, Batterham handed himself in to Newcastle police station and was charged with murder.

The case raises questions about the limitations of self-defence, and potential consequences for those who use force to protect themselves and their property.

The process of determining whether Batterham’s actions amounted to self defence is just beginning – as, like hundreds of thousands before him, he embarks on the harrowing journey through our criminal justice system.

Although more than 65,000 Australians have already signed a petition calling for Batterham’s release from custody, this is certainly no guarantee he will achieve bail. Murder is a ‘show cause’ offence, which means his lawyers will need to give strong reasons why their client should be released from custody until his case is finalised.

And Australia’s legal rulings on intruder assault and death do not err on the side of the homeowner – judgments are only handed-down after careful consideration of whether self defence has been established; regardless of where the encounter occurred.

What Constitutes Self-Defence in NSW?

Under Section 418 of the Crimes Act NSW 1900: “A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.”

In order to raise self defence, the defendant must provide some evidence that his or her actions were “necessary” to:

(a) defend themselves or another person;

(b) prevent themselves or another person from being unlawfully detained;

(c) protect property from theft, destruction, damage or interference; or

(d) prevent a criminal trespass or remove a person committing it.

Section 418 further states that self defence can only be established if the defendant’s conduct was “necessary” and “a reasonable response in the circumstances as he or she perceives them.”

The ‘evidence’ required to raise self defence can come in a range of forms; most often through testimony by the defendant or other witnesses.

If that evidence is raised, then the onus shifts to the prosecution who must prove beyond reasonable doubt that the defendant’s actions were not a necessary or reasonable response to the situation as he or she perceived them.

If the prosecution is unable to do this, then the defendant must be found not guilty.

Defending Your Home

Unlike in some American states, such as Texas, the mere fact that a person commits a violent home invasion does not necessarily justify the use of lethal force in Australia.

Rather, each situation is considered on its own merits to determine whether the killer’s actions were necessary and reasonable in the circumstances.

Some situations are relatively clear cut: killing a person who is armed with a gun and threatening to kill another would normally be legal, provided the defendant believed the armed person was going to act upon their threat.

But other situations are less straightforward, requiring careful analysis of the facts and the defendant’s state of mind. As Lord Morris recognised in a famous 1971 self-defence case, a person seeking to defend themselves in a heated situation “cannot weigh to a nicety the exact measure of his defensive action” – and different people may perceive threats in different ways, acting accordingly.

Limitations to Self Defence

There are two significant limitations upon self defence.

Section 421 of the Crimes Act says that a person who uses ‘excessive force’ to defend themselves, or another person, may be acquitted of murder but found guilty of the less serious charge of manslaughter instead, which carries a maximum penalty of 25 years as opposed to life imprisonment for murder.

Secondly, if a person was only seeking to protect property or prevent a criminal trespass, rather than protect themselves or another, they cannot rely on self-defence against a charge of murder.

Citizen’s Arrests in NSW

So how about arresting someone who breaks in?

Under section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, a member of the public can, in certain circumstances, place another under a citizen’s arrest; including where an intruder breaks into their home.

The powers of a citizen’s arrest are nowhere near as broad as those conferred upon police – a member of the public can only arrest a person who:

  • is in the act of committing an offence, or
  • has just committed an offence or
  • previously committed a ‘serious indictable offence’ for which they have not yet been charged.

A serious indictable offence is one which carries a maximum penalty of at least 5 years imprisonment, including larceny (stealing), fraud, assault occasioning actual bodily harm etc.

The person who performs the arrest can only use as much force as necessary, and must bring the arrested person to an ‘authorised officer’ as soon as possible.

It is important to think carefully before performing a citizen’s arrest, as unlawful arrests and excessive force can lead to criminal charges or civil liability. Citizen’s arrests can also be extremely dangerous, especially if the alleged offender is armed or intoxicated.

A Case in Point

In 2012, the NSW District Court awarded Joshua Fox $50,000 in damages after he was bashed by the licencee of a pub he had broken into.

The Court found that the licencee, who cracked Mr Fox’s forehead with a bat, had used “excessive force” in subduing him.

Back to Mr Batterham…

Reports about the Newcastle incident are sketchy – and there is not enough information to form a sensible view about the likely outcome.

The narrative that Mr Batterham was repelling a home invasion has attracted considerable public sympathy and support for the defendant. As University of Adelaide law lecturer Kellie Toole puts it:

“We idolise the concept of the house — that a man’s home is his castle and the idea of defending your home is very important.”

It will be interesting to see how the case unfolds.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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