Invader vs Homeowner – When & How Can You Protect Your Family?

In the early hours of Saturday 26 March 2016, a 34 year old man, Ricky Slater, allegedly broke into a house in a suburb of Newcastle. The house is the home of Ben Batterham and his young family. Batterham is believed to have found Slater in his home at about 3.30am. At that stage, a fight between the two men broke out. During the fight, a friend of Batterham became involved and the trio moved to outside the house. When the neighbours became aware of the altercation, police were called and were told there was a fight and two men had “detained” the third. Police and ambulance services arrived shortly thereafter. By this time, Slater was unconscious.

As a result of his injuries, Slater’s life support was turned off on the following day. Batterham’s charge of recklessly inflicting grievous bodily harm was then upgraded to murder.

The circumstances surrounding the death remain opaque. Versions of events range from Slater being invited to a party at the Batterham house to Slater breaking and entering the house and being found proximate to Batterham’s young daughter’s bedroom. A recorded 000 call reveals that during the altercation Batterham threatened to kill Slater.

Batterham did not apply for bail when first before the court the following Tuesday and the matter has been adjourned to 25 May 2016.

The response from the community to date has been one of support for Batterham. Petitions for Batterham’s release acquired thousands of signatures. The 21st century’s bastion of solidarity was ever-present, with #freebenbatterham and #changethelaw trending. An author of one of the petitions seems to encapsulate the public sentiment:

“If you can’t legally protect yourself, your home and most importantly your family, then what are you supposed to do — lay down and die and let unspeakable things happen to your loved ones while you wait for police?”

It is understandable that a high profile case that deals with something so central to many people’s lives – the safety of their own home – is generating plenty of comment and opinion.

As far as the altercation is concerned, reports vary from the fight sprawling into the front yard to Batterham and his friend chasing Slater to outside the house. When they get there, versions differ from Slater being apprehended and subdued to being bashed.

What is evident is that Slater’s injuries were so severe that his life support was turned off the following morning.

The Crimes Act 1900 (NSW) states a person has not broken the law if they defend themselves, others, property or prevent trespass based on a belief it is necessary to do so and their actions are reasonable in the circumstances (section 418).

This changes when someone dies. The defence of self-defence is no longer available in the case of protecting property or preventing trespass (section 420). This reflects the public policy position that the taking of a life is not a reasonable and proportionate response to the need to protect property.

There is also a qualification that if the conduct is not considered reasonable but the defender did genuinely believe it was necessary, the charge changes from murder to manslaughter (section 421).

Phillip Boulten SC helpfully explained:

“Self-defence has two aspects. What did you [the ‘self-defender’] think was necessary? And was is actually reasonable in the circumstances? … Proportionality of response is important … If it turns into revenge or if it turns into vigilantism, then that’s no self-defence.”

In the event Slater was an uninvited intruder, the question then turns on what Slater did when Batterham spotted him. If Slater ran to escape and Batterham chased him, this, self-evidently, is not self-defence. Revenge and vigilantism, although potentially comprehensible in certain circumstances, are not forms of self-defence and cannot be considered lawful.

If Batterham confronted Slater and, in defending himself or his family, a physical fight ensued, the proportionality of Batterham’s response is important. Batterham is permitted at law to attack Slater, even in the event Slater dies from the altercation, as long as it is reasonable in the face of the threat to protect himself and his family. If Batterham acted reasonably in the circumstance, then he cannot be found guilty.

That, of course, will be a question for the jury to decide.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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