Kiwi Polemicist

October 4, 2008

• Shop keepers under attack have limited powers with which to defend their property

There’s been quite a stink about the police charging a shop keeper for dealing to a youth (click here and here) who was part of a group that invaded the shop in an aggressive manner. At this point we cannot  be certain if this was self defence or the shop keeper pursued the youth, but there is a long history of the police making highly dubious decisions to prosecute what those who defend themselves. Let’s have a look at what the law says:

You have have the right to defend yourself if someone is attacking you

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use (Crimes Act s48)

You can defend your land and buildings if you do not strike or harm the trespasser

Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person. (s56)

This is a stupid law: if I remove a trespasser and cause a few bruises is that bodily harm? The law gives a right but makes it almost impossible to exercise that right without getting arrested.

You can defend your movable property if you do not strike or harm the thief

Every one in peaceable possession of any movable thing, and every one lawfully assisting him, is justified in using reasonable force to resist the taking of the thing by any trespasser or to retake it from any trespasser, if in either case he does not strike or do bodily harm to the trespasser. (s52)

Every one in peaceable possession of any movable thing under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person. (s53)

Again, it is almost impossible to defend your property without breaking the law yourself.

You can defend your home in some circumstances

Every one in peaceable possession of a dwellinghouse, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of the dwellinghouse by any person if he believes, on reasonable and probable grounds, that there is no lawful justification for the breaking and entering. (s55)

Note the proviso: forcible breaking and entering. So, if an intruder enters via a window or door that you have left open you cannot defend your home because the intruder is not forcibly breaking and entering.

You can use force to prevent serious crimes

Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence. (s41)

This is a very imprecise law and it is a brave person who uses it in a country where the police have a history of making vexatious prosecutions at the drop of a hat.

I am led to conclude that we effectively have no legal means for defending our property, and if we defend our person there’s a good chance that the police will prosecute us. This is a travesty and an injustice.

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3 Comments »

  1. Good analysis KP. Note that under protecting your home it says to “prevent the forcible breaking and entering”, not to defend your home from someone who HAS broken in. Once they have broken in you can no longer prevent it, so you may have no legal right to defend your property under this law if interpreted precisely, unless you can stop them breaking in.

    And if you stopped them breaking in, there is no evidence that they were intending to break in, so who is to say you didn’t just get into a fight on your front lawn?

    Comment by Mr Dennis — October 5, 2008 @ 8:51 am

  2. Thank you Mr Dennis.

    You also have a good analysis: once an intruder is in your home it might be a case of defending movable property or removing a trespasser (see post body), but as I said it is nigh impossible to do those things without breaking the law.

    As for the police telling us to cal 111, that’s pretty much useless once the person is in your house. As I said in an earlier post (click here), private police services are the way to go if you want a timely response (or any response at all).

    History has shown that gun control laws clearly don’t stop criminals getting guns and give criminals an advantage because they are usually the only ones who have guns, so why not even things up and allow everyone to have guns? There are times when all you need is two good friends: Mr Smith and Mr Wesson.

    Having said that, I would be extremely reluctant to own a gun and I would have to carefully consider issues such as escalation: once an encounter reaches the stage where lethal-force weapons are deployed it is very difficult to bring about a bloodless resolution. Criminals are by definition antisocial narcissists so they put a low value on the life and health of others, which means that often it is better to comply with their demands. Translation: criminals generally won’t hesitate to harm you or kill you so it’s often better to give them what they want.

    Comment by kiwipolemicist — October 5, 2008 @ 9:51 am

  3. […] Shop keepers under attack have limited powers with which to defend their property […]

    Pingback by • Ted Nugent on self defence and gun control « Kiwi Polemicist — July 28, 2009 @ 3:36 pm


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