Under West Australian law, there’s a home invasion defence that could potentially be relied on by homeowners or occupants who’ve used force to defend themselves against a home invader in Western Australia. It could possibly be raised as a defence in situations where they’ve subsequently been charged with a criminal offence such as assault occasioning bodily harm. This defence is contained within Section 244 of the Criminal Code Act Compilation Act 1913.
The degree of force that a homeowner or occupant is permitted by law to use in defending him or herself against a home invasion is often a controversial issue. Much of this controversy arises from the fact that an occupant who is present at the time of the home invasion may often have little choice but to resort to some form of violence or otherwise unlawful conduct against the intruder, as a response to the perceived threat. Another complicating factor is that decisions and reactions in the home invasion scenario are usually split-second in nature, with not much time or opportunity available for evaluation or reflection in the heat of the moment. As a result, there can be potentially disastrous consequences for an occupant who defends him or herself against an intruder, in the sense that a person who is effectively a victim of a criminal offence could also end up being charged with a criminal offence.
Overall, it’s somewhat evident (certainly to lawyers) that the home invasion defence in Section 244 can be interpreted very broadly. While it’s not within the scope of this article to review every facet of this defence, the article will consider the meaning of the provisions in Section 244, and determine the situations in which they might apply.
Section 244(1) of the Criminal Code Act Compilation Act 1913 (‘the Code’) sets out the home invasion defence for the purposes of the section. It provides that:
“It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary — (a) to prevent a home invader from wrongfully entering the dwelling or an associated place; or (b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or (c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is — (i) attempting to wrongfully enter the dwelling or an associated place; or (ii) wrongfully in the dwelling or on or in an associated place; or(d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.”
In Kennedy v Kuzma (Unreported, WASC, Library 930729) p. 16, Judge Scott defined ‘peaceable’ as follows:
“… (T)he ordinary meaning of the word “peaceable” … (as being) “free from disturbance”, (Concise Oxford Dictionary, 8th Ed.) leads, in my view, to the conclusion that in this context, peaceable means entitled to possession without challenge so long as that possession is not intended to or likely to cause a breach of the peace.”
In accordance with this judicial definition of the word ‘peaceable’, if a homeowner or occupant were to somehow “breach the peace” in their home prior to the offence of the home invasion, then he or she wouldn’t be entitled to raise the home invasion defence under Section 244.
Section 244(6) of the Code defines an ‘offence’ for the purposes of Section 244 as being an offence committed by a person in the occupant’s dwelling or associated place “in addition to any wrongful entry”. In other words, Section 244 doesn’t actually require a ‘wrongful entry’ in order to be potentially applicable as a home invasion defence. As a result, the term ‘offence’ for the purposes of the section could therefore include assault, property damage or theft on the premises by the home invader, even if there was no actual wrongful entry.
Unfortunately, home invasions would appear to be on the rise, or at least are now being more widely reported than previously. Ordinarily, when considering the home invasion defence under Section 244, one would most likely conjure up images of strangers entering someone else’s home in the dead of night for nefarious purposes. While this scenario would indeed constitute a home invasion for the purposes of Section 244, it isn’t necessary under the section that the intruder be unknown to the homeowner or occupant, or even that the intruder entered the house without permission. This means that the definition of a home invader under section 244 might extend to a person who was invited into a house, and even to a person who actually lives in that house with the occupant, such as a housemate or partner.
Under Section 244(2) of the Code, “if the occupant believes, on reasonable grounds, that the person (a) intends to commit an offence; or (b) is committing or has committed an offence in the dwelling or on or in an associated place,” then the person in question will fall within the definition of ‘home invader’ for the purposes of Section 244(1).
So, for example, an occupant might walk into a housemate’s bedroom and discovers that housemate to be committing cyber fraud. Under Section 244, the occupant may in these circumstances “use any force” that he or she believes is reasonably necessary to prevent the housemate from committing the offence of cyber fraud in the dwelling or associated place. In other words, the housemate will be considered a ‘home invader’ in these circumstances, for the purposes of a home invasion defence under Section 244.
In addition, it’s important to note that under Section 242(6), the definition of ‘associated place’ for the purposes of Section 244 includes “any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling.” In effect, therefore, the term ‘associated place’ could include the occupant’s garden, garage or driveway.
Thus far, it might appear that Section 244 has a somewhat low threshold to meet, in order to facilitate a strong home invasion defence under the section. It should be noted, though, that the defence carries both a subjective and objective element. In terms of the subjective element, an occupant may feel well within his or her rights to seriously injure a housemate in response to a perceived threat of harm from that housemate.
However, under Section 244(1A), there is also an objective component of the home invasion defence that must be satisfied. This subsection requires that the occupant cannot “use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.”
It’s important to note that these objective elements of ‘reasonable’ and ‘likely’ under Section 244(1A) are a tough hurdle to overcome when it comes to mounting a successful home invasion defence under Section 244. Consequently, it’s common practice for the Court to find on the balance of probabilities that the occupant’s response to the home invasion was unreasonable in the circumstances.
Another factor of possible relevance is that under Section 244(3), any person “assisting the occupant or acting by the occupant’s authority” may help the occupant defend against the home invasion. Furthermore, under Section 244(4), such a person who is “acting in good faith” to assist the occupant may use the “same degree of force” to defend the occupant as would be legal for the occupant to use under Section 244(1)(c), in order to “make effectual defence” against violence or threatened violence. (That said, the term ‘effectual defence’ is not defined in the Code, and is therefore open to interpretation). The ‘assistant’ factor may be particularly relevant in the event that there’s more than one home invader, and these home invaders are acting in concert.
Section 244 might also be applicable in a domestic violence situation, where an occupant has used force against an abusive partner in the occupant’s home. In these situations, rather than relying on a claim of self-defence, the accused occupant may be able to rely on a home invasion defence under Section 244. This could potentially be achieved through classifying the abusive partner as a home invader under Section 244(2), in order to come under the ambit of the defence.
In summary, Section 244 of the Criminal Code Act Compilation Act 1913 contains a defence that’s multi-faceted and complex. It provides broad scope for lawyers to consider and argue the circumstances under which their clients should raise the defence, in cases where their clients used force to defend against a home invader. However, relying on a home invasion defence under Section 244 is not without difficulty. Even if the accused occupant satisfies the Court that he or she acted in accordance with Section 244 in using force to defend against a home invader, the prosecution will attempt to prove that the occupant had no positive belief on “reasonable grounds” to respond in that way. Often, the court will often find that the response (in this context, the degree of force used) by the occupant to the home invasion was neither necessary nor reasonable in the circumstances. Therefore, the objective elements of a home invasion defence under Section 244 should be borne in mind when advising clients as to the possible use of this defence in Western Australia.
By Shirley Casey, BSc, JD, GDLP
Associate, GTC Lawyers
This article is published for general information only and is not intended to provide specific legal advice. It is important that you consult with a lawyer to discuss your case specifically, rather than rely on general information as to the law.