Thread: Being secure at HOME assault

Originally Posted by Toolin Around

I know there's the odd lawyer on the forum

Is there any other kind?

Sorry to all the lawyers, but I couldn't resist a gratuitous shot.

Originally Posted by Toolin Around

Are you a highly educated expert in law do you even have a law degree... diploma... If not, you may know a bit about law and able to rattle on to people so as to make them think you're knowledgeable; but ultimately you're an arm chair expert that has no comprehensive practical and or working knowledge of the law and ultimately your advice is useless. But it doesn't stop us from having an opinion - and shouldn't. Which means everyone here would be classed as an armchair expert. I know there's the odd lawyer on the forum - ever wonder why they don't respond to this sort thread. Probably don't like being lectured by armchair experts.

Diploma in Investigations
Diploma in Risk Management
Diploma in Occupational Health and Safety
19 years practical experience in law enforcement in state, commonwealth and international jurisdictions with 6 years of those adjudicating on matters to be referred to court.

I have also completed research and presented opinion and training with respect to application of Commonwealth Law in State Jurisdictions.

No I am no expert. I have obviously struggled with your post because it goes against what I have experienced. Legislation always operates under the assumption that it will be interpreted against pre-existing common law. And in the case we are discussing I cant see how ones duty of care can be legislated away against common law.

Where exactly have I passed myself off as being more learned than the authors of the quote? What I have done is argue against what they have said. Simple. I may do it in a smart a$$ way but that is my style. Like it or not.

But what I have learnt is that the law is about arguement, which is why we have lawyers and why we have courts. So thats what I have been doing, arguing a point of law. At no time have I played you personally, only the statement that you or your teachers have made. If my arguement is flawed then show me where and I will be more than happy to give kudos where its due.

But seriously, if you have such difficulty with my arguements, is law really for you?

I apologise if I have upset you in any way.

cheers

Originally Posted by dazzler

Diploma in Investigations
Diploma in Risk Management
Diploma in Occupational Health and Safety
19 years practical experience in law enforcement in state, commonwealth and international jurisdictions with 6 years of those adjudicating on matters to be referred to court.

I have also completed research and presented opinion and training with respect to application of Commonwealth Law in State Jurisdictions.

No I am no expert. I have obviously struggled with your post because it goes against what I have experienced. Legislation always operates under the assumption that it will be interpreted against pre-existing common law. And in the case we are discussing I cant see how ones duty of care can be legislated away against common law.

Where exactly have I passed myself off as being more learned than the authors of the quote? What I have done is argue against what they have said. Simple. I may do it in a smart a$$ way but that is my style. Like it or not.

Didn't you say the authors needed to go back to school - somewhat arrogant don't you think especially if as you say you're no expert.

But what I have learnt is that the law is about arguement, which is why we have lawyers and why we have courts. So thats what I have been doing, arguing a point of law. At no time have I played you personally, only the statement that you or your teachers have made. If my arguement is flawed then show me where and I will be more than happy to give kudos where its due.

I don't know why you were trying to "argue" with me over it though... What is it going to prove? You say one thing I say another. None of which means sh it, especially when it comes to the civil liabilities act. About as futile as pushing water up hill with a rake don't you think. My intension was to bring to the forum so as to add information for people to digest how ever they saw fit - nothing more.

And yes you were trying to "play" me, as you tried to draw me in to an argument you most likely thought you would dominate... When did you plan to let me know your background? It's an age old trick on this board that I have seen time and time again.

But seriously, if you have such difficulty with my arguements, is law really for you?

Difficulty with what you said - nope. I found it laughable but not difficult when you said the authors needs to go back to school. As for the rest of it I knew what you were up to so played it safe. Is the law for me!?!? I'm only taking the course as it's part of my degree - I certainly wouldn't to be a lawyer for any reason.

You may have misunderstood and thought I was ticked off because my style of writing is very inanimated and to the point - boring in other words... If I'm pis sed off I'll tell ya. I think one thing I am on this forum is up front with what I think - maybe to a fault.

I apologise if I have upset you in any way.

No need to mate

cheers

So now that we have that off our chests... Did you find any cases to support your position. I suspect you are having trouble finding any.

Topic...Topic ....Topic!

Back to it please.

So do I have a duty of care to an intruder who is trying to injure me?
"He was in my shed and I confronted him then he attacked and got hit in the head with a stilson for his trouble"
(just in case thread wasn't grey enough )

[COLOR="black"]

Originally Posted by Gingermick

So do I have a duty of care to an intruder who is trying to injure me?
[COLOR="Black"]"He was in my shed and I confronted him then he attacked and got hit in the head with a stilson for his trouble"
(just in case thread wasn't grey enough )

Hi Mick

This may answer your question; From Sydney Morning Herald dated 29/8/02

Teen wins $50,000 damages after breaking into home

August 29 2002

A teenager who broke into the home of a Sydney nightclub licensee was today awarded nearly $50,000 damages after being attacked, sparking criticism that the law was standing behind the intruder instead of the householder.

Joshua Fox climbed onto the roof of the Peakhurst Inn after he had been denied access to the downstairs nightclub on April 23, 1999.

He entered the on-site residence of the hotel licensee, Honeheke Gerald Newton, who lived there with his wife and two children.

When Newton found the then 16-year-old intruder he struck him repeatedly with a baton-like object.

Mr Fox, now 19, received injuries to his head and face, requiring surgery.

The NSW District Court today awarded Mr Fox $49,049 in damages.

His mother Michelle Lee Kilby, who sued for nervous shock after seeing her son's injuries on the night, also received $18,578 in damages.

Mrs Kilby claimed she suffered from sweating, insomnia, episodes of crying and nightmares after seeing her son's injuries.

"I am persuaded that Mrs Kilby did sustain nervous shock in that as a direct consequence of observing her son's condition she experienced an abnormal recognised psychiatric condition," Judge John McGuire said in his decision.

Judge McGuire found while Mr Fox should not have entered Mr Newton's property, the level of violence used against him was unnecessary.

After entering the hotel's residence, Mr Fox hid in the laundry to avoid detection but was quickly found and attacked by Mr Newton.

"The plaintiff was intoxicated, argumentative and so on and that he had created a situation in which the use of force to expel him was a natural and lawful consequence of his own misbehaviour," Judge McGuire said.

"However, the degree of force used was in the end unlawful and not the necessary consequence of his own condition and behaviour."

Judge McGuire found Mr Newton was performing his duty as Peakhurst Inn licensee when he attacked Mr Fox and therefore the pub was liable for his actions.

"Clearly he would have been expected to prevent unauthorised persons from intruding onto the premises for whatever purpose, be it to steal from the roof area, to seek illegal entry into licensed premises, to vandalise those premises or to rob the hotel," Judge McGuire said. He also said he was very impressed with dazzlers valid arguments on the forums of late!

NSW Opposition justice spokesman Chris Hartcher said the judgment sent the wrong message.

"No legal system can tolerate situations where criminals are allowed to use the law for their own profit," he said.

"The legal system must stand behind the home owner, not the burglar."

It all comes down to reasonableness and basically whatever ones response is it must be proportional to the threat. Sadly the 'reasonableness test"
will be viewed in the cold light of a court room.

cheers

Hang on, this even covers something i was searching for the other day

"clearly he would have been expected to prevent unauthorised persons from intruding onto the premises for whatever purpose, be it to steal from the roof area, to seek illegal entry into licensed premises, to vandalise those premises or to rob the hotel," judge mcguire said. He also said he was very impressed with dazzlers valid arguments on the forums of late!

heh

I recently had the misfortune of also being the victim of a home invasion - my 16 year old son's 'friend' opened the door because he knew one of them, they said they needed help but they threatened to smash the windows if they didn't let them in. They came in and took alcohol and mobile phones and other valuables.

This is the third incident - the first was a stolen car from my garage, they came into the house while I was alone and sleeping and stole the keys among other things. Next my new car was 'stomped on' while parked on the street.

Luckily nobody was hurt, but all I wanted to do was move, imediately, I didn't feel safe in my home. Sadly I don't know anywhere that is truly safe anymore, and I can't afford to move to a 'better suburb' anyway, I made the decision to install Roller Shutters, while I don't particularly like the look of them and they are quite pricey. I had to come up with 25% deposit and the remainder on interest free terms for two years through certigy. All up $6,500 for 7 windows - I know I'll sleep much better when they go on in a few days.

I also put extra locks on the sheds, gates, doors etc, I also put inexpensive door sensors on the doors, sensor lights all around the property and I will probably alarm the garage and shed too when I have some more money.

The mag lite sounds like a good idea - but I don't intend to open the doors to anyone anymore.

good luck in your

Originally Posted by dazzler

Hi Mick

This may answer your question; From Sydney Morning Herald dated 29/8/02

[color="black"]Teen wins $50,000 damages after breaking into home

August 29 2002

A teenager who broke into the home of a Sydney nightclub licensee was today awarded nearly $50,000 damages after being attacked, sparking criticism that the law was standing behind the intruder instead of the householder.

Joshua Fox climbed onto the roof of the Peakhurst Inn after he had been denied access to the downstairs nightclub on April 23, 1999.

He entered the on-site residence of the hotel licensee, Honeheke Gerald Newton, who lived there with his wife and two children.

When Newton found the then 16-year-old intruder he struck him repeatedly with a baton-like object.

Mr Fox, now 19, received injuries to his head and face, requiring surgery.

The NSW District Court today awarded Mr Fox $49,049 in damages.

His mother Michelle Lee Kilby, who sued for nervous shock after seeing her son's injuries on the night, also received $18,578 in damages.

Mrs Kilby claimed she suffered from sweating, insomnia, episodes of crying and nightmares after seeing her son's injuries.

"I am persuaded that Mrs Kilby did sustain nervous shock in that as a direct consequence of observing her son's condition she experienced an abnormal recognised psychiatric condition," Judge John McGuire said in his decision.

Judge McGuire found while Mr Fox should not have entered Mr Newton's property, the level of violence used against him was unnecessary.

After entering the hotel's residence, Mr Fox hid in the laundry to avoid detection but was quickly found and attacked by Mr Newton.

"The plaintiff was intoxicated, argumentative and so on and that he had created a situation in which the use of force to expel him was a natural and lawful consequence of his own misbehaviour," Judge McGuire said.

"However, the degree of force used was in the end unlawful and not the necessary consequence of his own condition and behaviour."

Judge McGuire found Mr Newton was performing his duty as Peakhurst Inn licensee when he attacked Mr Fox and therefore the pub was liable for his actions.

"Clearly he would have been expected to prevent unauthorised persons from intruding onto the premises for whatever purpose, be it to steal from the roof area, to seek illegal entry into licensed premises, to vandalise those premises or to rob the hotel," Judge McGuire said. He also said he was very impressed with dazzlers valid arguments on the forums of late!

NSW Opposition justice spokesman Chris Hartcher said the judgment sent the wrong message.

"No legal system can tolerate situations where criminals are allowed to use the law for their own profit," he said.

"The legal system must stand behind the home owner, not the burglar."

It all comes down to reasonableness and basically whatever ones response is it must be proportional to the threat. Sadly the 'reasonableness test"
will be viewed in the cold light of a court room.

cheers

Hang on, this even covers something i was searching for the other day

I think it must be a problem here as I see it often. People get caught up in the need to win that they forget what's said. The quote said there were jurisdictions where this happens... You need more to show that it's a majority. And this will really test your research skill... Has the civil liabilites act changed since then as it appears many were outraged at the verdict...

He found someone in his house and gave them an almighty touch-up. He wasn't attacked though, still, if he had known grappling he could've choked him out and shaved his eye brows

SO Daz hows those cases comng

Originally Posted by Toolin Around

SO Daz hows those cases comng

done mine mate - balls in your court.

Seems like things went astray a bit. Update of my experience.Criminal Justice system in Oz is a Joke, filed an AVO/VRO against the guy, Judge said today he won't put a restraining order on as he is appearing in Court in April, good on you Judge. Wonder if the coward will come back with support, will be his loss, won't be so kind next time around, will not be me with concussion and spinal pain if it happens again, IMO to hell with the Law, if some mongrel breaks into my house, attacks me, threatens my wife or son, even though he is 29, then I will cut loose, won't kill or maim, but whoever tries that again, will not get off lightly, if the Law punished these creeps severely, maybe they would think twice before doing it in the first place, instead of a small fine and be a good boy when you leave Court, this steady increase of home invasions, bashing senior citz etc is only going to get worse.
Sad to think 47 yrs ago we could leave the home open, sleep outside, and on the front yard as well safely, now we as innocent home owners, family oriented ppl have to barricade our homes, install security, sharpen my Jack Russels teeth to needle points, and then on top of everything we have to have due consideration for the intruder, so that we don't hurt him/them, because they can charge us back with assault. Not right, the Law is an Ass, some cops can't be bothered, those that do leave or just do what has to be done, Judges that are detached of the real impact an assault has on your whole well being and sense of security, handing down lenient sentences, sends a message that crime is acceptable and a normal way of life. Unless something drastically happens and soon, God help our future generations.

Hi Wazoz

Welcome to the justice system .

Just remember the line - "I was only trying to remove the threat". and "I stopped as soon as the threat stopped"

Have fun now!