Defence against Home Invader applicable in circumstance of a Domestic Violence Incident –The Criminal Code (WA) Section 244

As the law currently stands a resident (“the Occupant”) can use any force they deem reasonable against a person the Occupant believes is, has or intends to commit an offence in a dwelling, even if the offender is a resident of the dwelling.


Appius Lawyers recently successfully defended a murder charge in which the home invader defence was left to the jury, despite the accused and the deceased being residents of the same house.


Section 244(1) of the Criminal Code, relevantly, states:


[i]t is lawful for a[n]…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… to prevent a home invader from committing, or making a home invader stop committing, an offence in the dwelling.


Section 244(2) of the Criminal Code, relevantly, states:


A person is a home invader for the purpose of subsection (1) if the occupant believes, on reasonable grounds, that the person… intends to commit an offence; or… is committing or has committed an offence in the dwelling...


Section 244(6) of the Criminal Code does define offence as mean[ing] an offence in addition to any wrongful entry


The section clearly does not require a wrongful entry, leaving the door open for a broad interpretation of the legislation.


Provided the Occupant is:


1.    in peaceable possession


2.    They can use any force of do anything they believe reasonable


3.    To prevent someone from committing or stopping that person from committing a crime


As yet there is not a satisfactory definition of peaceable possession, however, the concept has been discussed in relation to personal property.


In Kennedy v Kuzma (unreported, WASC, Library No 930729) Scott J, on page 16 stated:


… the ordinary meaning of the word “peaceable”… is “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).[1] So, for example, the householder entitled to be in possession of his or her dwelling house and the property therein, without challenge, who has done nothing intended or likely to breach the peace, may lawfully defend the property therein in accordance with s251.


In R v Van Bao Nguyen (2002) 139 NTR 15[2] Angel J dealt with a defence raised on a similar Northern Territory provision and circumstances where the accused lost peaceable possession, at 12 stated:


… the accused's driving whilst under the influence of morphine posed an immediate threat to the safety of other road users... This unlawful conduct gave rise to a reasonable apprehension of, or a likely breach of the peace, and as such the accused was not entitled to possession of his vehicle, or car keys without challenge. Accordingly, on the undisputed facts, I ruled that as a matter of law the accused was not in peaceable possession of his vehicle, or car keys and was not entitled to raise s 27(h) Criminal Code NT in relation to the charge of assault.


The above illustrates that peaceable possession is lost when unlawful conduct of an accused before the incident in question, disentitles the accused to peaceable possession on the basis of a likely breach of the peace.


In Tollott v Matier [2013] WASC 429 Allanson J states the following:


40.       On my researches, the phrase 'peaceable possession' has been considered in Western Australia only in relation to possession of personal property. In Kennedy v Kuzma (Unreported, WASC, Library No 930729, 22 December 1993) Scott J considered that the phrase meant 'entitled to possession without challenge (so long as that possession is not intended to or likely to cause a breach of the peace)'. This was applied in O'Callaghan v MacDonald [2000] WASCA 88 (Miller J), and R v Van Bao Nguyen (2002) 139 NTR 15 (Angel J)…


41.       Peaceable possession of land has been considered in other jurisdictions. In Taueki v The Queen [2012] 3 NZLR 601 [41] - [46], the Court of Appeal of New Zealand considered a statutory defence by which a person 'in peaceable possession' of any land or building is justified in using reasonable force to prevent a person from trespassing on the land or to remove that person, 'if he does not strike or do bodily harm to that person'. The court referred to authority in the law of real property, and quoted from a decision of the Alberta Court of Appeal (in R v Born with a Tooth (1992) 4 Alta LR (3d) 289, 76 CCC (3d) 169). The court said that peaceable possession need not be lawful possession, but appeared to accept that the defence should be available only to those whose possession has not been seriously questioned by somebody before the incident in question.

In Etherton v The State of Western Australia [2005] WASCA 83, Robert-Smith JA at [124] states:


The use of force to defend connotes a temporal and physical connection between the invasion of the right and what is done to prevent or resist it - including the retaking of property taken by a trespasser.


In our view the conduct which can remove peaceable possession must:


a.    come before all of the temporally and physically proximate circumstances of the incident in question; and


b.    cannot be a component of the actions used to stop the home invader from committing the offence.


The applicability of this to domestic violence incidents means that the Accused may rely on this defence rather than self-defence; self-defence requiring not only that the Accused felt the conduct and force of the defence is reasonably necessary, but further, that an objective viewer of the circumstances also deem the conduct and force are reasonable in the circumstance.

[1] Cited in: Etherton v The State of Western Australia [2005] WASCA 83 (Steytler P) [9] and (Robert-Smith JA) [110]; Tallott v Matier [2013] WASC 429 (Allanson J) [40].

[2] Cited in: Etherton v The State of Western Australia [2005] WASCA 83 (Steytler P) [12]