In British law, the old saying “A man’s home is his castle” can be traced back at least four centuries to the court decision in Semayne’s Case in 1604, in which the esteemed English jurist Sir Edward Coke declared, “the house of every one is to him as his Castle and Fortress, as well for defence against injury and violence, as for his repose.”
Most of us would do whatever it takes to stoutly defend our own Castle and Fortress, and protect our loved ones against unwelcome intruders. But how far is too far in the eyes of our criminal justice system? The answer isn’t always straightforward and can be difficult to navigate, particularly in the heat of the moment.
Queensland law accommodates that reality. Section 267 of our Criminal Code 1899 expressly recognises the legitimate use of force to defend one’s hearth and home, making it lawful for anyone in peaceable possession of a dwelling to use force to prevent or repel another whom they reasonably believe is attempting to unlawfully enter that dwelling to commit an indictable offence.
Unlike self-defence provisions – which allow a person to use reasonable and proportionate force to defend themselves – under section 267, if a homeowner believes on reasonable grounds that an intruder is about to enter their dwelling with malevolent intent, they are entitled to use whatever force may be necessary- even if lethal – to stop them.
The provision offers greater protection to homeowners than almost any other defence in the Code, and reflects the reality that decisions regarding defence of a dwelling are often made in split-second, emergent, and emotionally charged circumstances. As such, the homeowner can’t always weigh up, coolly, carefully, and precisely, the best action to take to avoid the threat. For that very reason, there have been recent calls by concerned Victorians, who are currently experiencing a worrying rise in property crime, for similar legislation to be enacted in their jurisdiction.
Importantly though, while our Code allows for robust self-defence against home invaders, it does not give carte blanche to use force indiscriminately. The section 267 defence only applies to the defence of a dwelling, as opposed to an owner’s land more broadly. Certainly, the courts have adopted a fairly inclusive approach to what will be considered a dwelling, including over the years sheds, tents, carports, caravans, and motel rooms. But there are limits. In a relatively recent judgment of the Queensland Court of Appeal, an appellant who used a bow and arrow to fatally shoot a would-be intruder as he crossed a concrete slab linking his house to a nearby shed was ruled not to be entitled to the section 267 defence, because the concrete slab was not part of the dwelling house.
Likewise, leaving the safety of one’s home to confront an intruder may undermine a defence of dwelling claim. Unlike self-defence, defence of dwelling does not require the threat of harm to be immediate and unavoidable to justify the use of force, and a person defending their home need not retreat from the threat, even if retreat is a reasonably available option. But, if a would-be intruder has not yet actually attempted to enter, or has already decamped, a real question will arise as to whether the use of force was in fact necessary. As to the answer, reasonable minds may differ.
In the 2009 murder case R v Cuskelly, the accused armed himself with two knives before stepping out of his home to confront an intoxicated man who was loitering outside his home and making offensive remarks about his wife. An altercation ensued, outside the dwelling, in which the drunken man tried to punch the accused, who then fatally stabbed him. At his trial, the accused raised section 267, claiming he acted to protect his home and his wife, fearing the deceased would force entry through the front door. The learned trial judge took the view the section did not apply, given the altercation occurred outside the house. But, when the accused was subsequently convicted of murder, the Court of Appeal ruled that a 267 defence was open on the facts, and should have been left to the jury.
Given the complexities that can arise in such cases, it is unsurprising that everyday Australians, jurors, and even judges often struggle to grapple with the legal principles at play. For that reason, most Australian jurisdictions have simplified their self-defence provisions (focusing on the use of force that is reasonable in the circumstances), and the Queensland Law Reform Commission is currently conducting a review of the issue to determine whether we should follow suit.
But those homeowners who like to lock up their house nice and tight before bed every night (and maybe sleep better with a waddy or two tucked under their bed) may be a lot more comfortable curling up in bed with the current Defence of Dwelling provisions in Queensland just as they are. Whether those provisions in fact strike the right balance will no doubt be the subject of some robust debate.
