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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4136 ..

MR STEFANIAK (continuing):

a shotgun and was charged with murder. I think the charge was reduced to manslaughter and the jury did not uphold that charge. It was deemed-and I can't quite recall the facts-that what he had done in the circumstances was reasonable. Indeed, this defence has been used, sometimes successfully and at other times not successfully, in a number of cases where people have been charged.

Under the subheading "Action to prevent criminal trespass and the scope of the defence"the scrutiny committee report states:

The Explanatory Memorandum notes:

[Subclause 42(3)] restricts the defence to ensure it does not apply to force that involves the intentional infliction of death or really serious injury for the purpose of protecting property rights.

I am not at this stage going to deal with really serious injury, because I know the Chief Minister is going to amend the definition, and I will speak then. The report goes on to state:

A house-holder may be faced with a situation in which he or she determines, or feels compelled, to defend her or himself by conduct they perceive to be necessary "to prevent criminal trespass to land or premises", (which is a stated basis for acting in self-defence: para 42(2)(a)(iv)). Such a person is not, however, well-placed to make a judgement as to whether the force they are proposing to use is such that a jury would later characterise it as having involved "the intentional infliction of death or really serious injury": para 42(3)(a). The house-holder's reaction will often be by way of instinct and not after considered judgement. In this respect, it should be borne in mind that the householder's conduct must (that is, even if s 40(3) were deleted) still satisfy the test in para 42(2)(b)-that is, her or his conduct must be "a reasonable response in the circumstances as the person perceives them".

The scrutiny report goes on to talk about the problems involved in defining "really serious injury". The Chief Minister, as I said, is going to address that.

I have some very real concerns in relation to how this new subsection might actually be used. Firstly, I think people in our society have some significant concerns already about just what they can do to protect themselves, their property, their homes, and people within their homes. There is already a very strong view in a large section of our community that it is the criminal who actually has all the rights, and that you cannot do anything if someone invades your home. I am concerned that an unnecessary subclause like (3) (a) will only perpetuate that view.

The law has been quite clear for many years in terms of what is provided in clause 42 (2) (b) of this code, and I think that is more than adequate for the situation. I don't really want to see situations where perhaps the subclause could be invoked. For example, somebody who suddenly in the middle of the night finds two persons in their home could use a baseball bat to brain and totally incapacitate or kill one of the intruders. The other burglar, who races off, might say, "Look, Fred and I were only going to take the video. We would never have hurt anyone. In fact, if we were discovered we were going to bolt."But how does the householder know that?

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