Thread: Being secure at HOME assault

Originally Posted by Toolin Around

An excerpt from my law text book:

Criminal Activity
One aspect of negligence law that has attracted widespread media attention and subsequent public criticism is the situation where a person is injured while committing a crime and then sues the victim of the crime for negligence. In response, the civil liability reforms in most jurisdictions provide that no duty of care arises in respect of conduct engaged in self defence against unlawful activities. Furthermore, criminals are unable to recover damages for personal injury suffered during the commission of a serious offence.

There must be more to it than that excert surely....... If a trespasser enters my property I cant swing a piece of pipe without care and take a chunk of skull out can I??

Isnt "reasonableness" still in thier somewhere?

Originally Posted by dazzler

There must be more to it than that excert surely....... If a trespasser enters my property I cant swing a piece of pipe without care and take a chunk of skull out can I??

Isnt "reasonableness" still in thier somewhere?

That was the full in context quote out of the text book.

Well the author needs to go back to law school IMO. You can only use sufficient force as is necessary to remove a threat and I am sure that is at common law.

That is about right with the cop's. It happened to friends for my wife's last Christmas not far from where you live, it went to the courts and only finished Christmas last year. Have you had any luck with a system?
David

Originally Posted by dazzler

Well the author needs to go back to law school IMO. You can only use sufficient force as is necessary to remove a threat and I am sure that is at common law.

That is my understanding too. You may only use sufficient force to remove the threat. If you were outnumbered or threatened with a weapon, you probably wouldn't get into too much trouble for any damage you did protecting yourself, but once the threat as been removed (or removed itself) you can't continue to use force or apply punishment.

You need to read what was written more closely. That statement is refering to negligence not criminal law. If you knock a monkeys head off with a baseball bat as they try to climb through your window they can't sue you but the cops can still charge you if they deem it was excessive force. So don't use a baseball bat use something that's a lot more innocuous.

So why is it anyways... I have never seen a baseball diamond in this country or heard of anyone that knows how to play let alone actually does but the weapn of choice is always a baseball bat! - cricket bats too gay (not that there's anything wrong with being gay...) for tough guys... Tip for all those sporting good stores that sell bats. If a knuckle dragging monkey wants to buy one - don't sell it to them unless it's made of flimsy plastic .

Also not sure about "sufficient force" but the term in negligence is "what a reasonable person would do in similar circumstances" which leaves it wide open to interpretation.

Hi toolin

There seems to be two different things going on in the text. One is talking about negligence, which to my mind is where there are acts or omissions PRIOR to the incident taking place, such as excavations in the backyard, leaving tripping hazards etc and then the second part referring to no duty of care in respect of conduct engaged in self defence, very much acts conducted at the TIME of the incident.

Are they saying that if I trespass on someones property(a criminal act), AND there is "no duty of care" required, that they can swing the mythical steel pipe without care, and if they do kill me, that they cannot be sued?

BUT it is taken that they can be charged criminally?

cheers

Reasonable force laws are at issue here, attack with any kind of weapon including a torch against an unarmed assailent will be frowned upon quite heavily under the law.
If you have martial arts training , you are considered a weapon as well.
Any injury received is, under NSW Public Liability Law, allowed to be actioned upon regardless if they were committing a criminal offence at the time or not, there is bill proposals to change this but it is the current law.

You should remember the publican who restrained the 19 yr old who had broken into his pub, he ended up being charged and the 19yr old receiving compensation.

If your dog attacks anyone including tresspassers you will be in trouble as well.

In the US you can do what you like to anyone who enters your home, but keep in mind the US is murder central in the western world, their murder rate is about (Edit) 3 times higher per capita than Australia.
In Australia any force you meet an assialent with will be examined very carefully.

Back when we did pay guard and carried loaded weapons, we were told to co-operate with any would be robbers and weapons were only to be used to save a life, pointedly being told that a pointed weapon is not in itself a threat to life.

Originally Posted by dazzler

Hi toolin

There seems to be two different things going on in the text. One is talking about negligence, which to my mind is where there are acts or omissions PRIOR to the incident taking place, such as excavations in the backyard, leaving tripping hazards etc and then the second part referring to no duty of care in respect of conduct engaged in self defence, very much acts conducted at the TIME of the incident.

Are they saying that if I trespass on someones property(a criminal act), AND there is "no duty of care" required, that they can swing the mythical steel pipe without care, and if they do kill me, that they cannot be sued?

BUT it is taken that they can be charged criminally?

cheers

I think your analogy is a bit extreme don't you think .

As I said before it comes down to how well a lawyer can convince the judge of "what a reasonable person would do in a similar situation".

I used to think the law was pretty rigid but the person teaching us law has been a practicing lawyer for 21 years and she says the law is by no means exacting. It's been quite eye opening as to how gray the law really is - at least negligence that is. She says she's seen many cases were it should have been open and shut but ended up with the opposite verdict to what everyone expected based on previous cases. She seemed to be hinting that it's very important to have an extremely good legal team representing you - the lawyer that builds a case for you and the lawyer that argues it in court.

Originally Posted by Cruzi

In the US you can do what you like to anyone who enters your home, but keep in mind the US is murder central in the western world, their murder rate is about (Edit) 3 times higher per capita than Australia.
In Australia any force you meet an assialent with will be examined very carefully.

Ya know it's funny how each of us view things... Most woudl say see look at those lunatic americans... To be honest those figures show Australia in a poorer light than the US. US cities are far denser populations with much higher over all populations with a higher corresponding crime rate... They also have increadibly easy access to guns... And only 3 times higher murder rate than here. I can only wonder what the murder rate would be here if monkeys had free access to guns.

Hi Toolin,

extreme yes, possible yes.

dont forget the text states;

"the civil liability reforms in most jurisdictions provide that no duty of care arises in respect of conduct engaged in self defence against unlawful activities"

"No duty of care"....not limited, not open to discussion, but "No" duty of care......."NO" is like "SHALL" or "MUST", basically beyond debate.

The law can definately be grey, I lost a fail to produce licence once because the magistrate agreed with the arguement that forgetting to carry it is reasonable - I often wondered why speeding isnt included then as you might "forget" the speed limit.

So I think I will stick with my original thoughts......back to law school for the auther

Well let me see do I think three people that are highly educated and specialized in their particular fields of law don't have a clue about what they are talking about or do I believe an armchair expert (not meant as an insult as we all aspire to be armchair experts in this thread)... No offence buy my money is on the trio of experts.

Originally Posted by Toolin Around

Well let me see do I think three people that are highly educated and specialized in their particular fields of law don't have a clue about what they are talking about or do I believe an armchair expert (not meant as an insult as we all aspire to be armchair experts in this thread)... No offence buy my money is on the trio of experts.

Armchair expert..........where do you get that from?

Perhaps the text needs to be explained a little further so I can put me pipe away as the way it appears in this thread is that, civilly at least, you have no duty of care when defending yourself against serious criminal activity.

Going off the text as quoted, I am sitting at home like wazoz is, stupid breaks down the door and goes ballistic. Perhaps I am about to be the victim of a serious assault. Unlike Wazoz I show no duty of care, run to the drawer and grab a butchers knife and drive it into him. Stupid falls down dead. What if I swing my steel pipe with gay abandon and if it hits him it hits him. And when it does he dies of a fractured skull?

Are they suggesting that after I am charged and convicted of manslaughter that the family of the deceased cannot claim against me?

Its the "no duty of care" bit that is really out there and goes against Common Law which would take precedence I would have thought.

Perhaps Im wrong.

The easiest way to prove or disprove it is to find a relevant case that's gone before the courts in australia. And let us know when you find it.

We've all heard all the rumours of such phantom cases of monkey sues victim... but I've never found one from a credible source. Doesn't mean they don't happen but I'm a little suspect of their validity.