Abandoned by the law

Date: 27/03/2005
Source: The Sunday Mail
Author: DARYL PASSMORE and PAUL WESTON

LAWS aimed at strengthening the rights of homeowners who confront burglars are in a state of confusion, with people still risking jail if they use force to protect themselves.

The State Opposition has called for an urgent revamp of the legislation as a survey by insurance firm AAMI shows 68 per cent of Queenslanders are prepared to take on a burglar in their home.

One in 10 said they had been robbed while at home.

But householders face being investigated or prosecuted and authorities can't provide a simple explanation of what defines reasonable force.

Opposition leader Lawrence Springborg says the law is hazy and wants it replaced with a presumption by the courts that a householder can use any level of force that is not "grossly disproportionate".

"If someone breaks into your house, they forfeit their rights at the door," Mr Springborg said.

He also hit out at the Director of Public Prosecutions and police over their inability to give clear advice to the public on their rights under the current law.

"If they can't explain what it means, how is the average person supposed to know?" he said.

"You can't have a situation where residents who are confronted with an intruder have to stand around thinking, 'Is it OK for me to use this shovel or do I have to restrict it to my fist?'

"People shouldn't have to go looking for a statute book when there's a burglar standing at the bottom of their bed."

The Director of Public Prosecutions advises Queenslanders that: "Generally speaking, any force used must be reasonably necessary in the circumstances, and proportionate to the right being defended."

It then suggests reading sections 267, 271-278, and 283 of the Queensland Criminal Code.

The code says it is lawful for a householder to use such force as is reasonably necessary in defending themselves or their property but does not define what is reasonable.

Police said they could not speculate on various scenarios.

By contrast, Britain's Crown Law Service and Association of Chief Police Officers were able to issue a series of easy-to-read guidelines when the case of a farmer who shot an intruder sparked intense interest in homeowners' rights.

Mr Springborg said the Opposition aimed to end the "ambiguity and confusion" about Queensland's laws.

The Opposition believes the concept of "grossly disproportionate" force would be much easier for people to understand.

"Obviously we believe there has to be some limit. We don't support people running down the street with guns firing at people fleeing the scene," Mr Springborg said.

"But if a little old lady has two 17-year-old youths in her place menacing her, it should be acceptable for her to drag the proverbial shotgun from under the bed and discharge it to wound them.

"If one of them is accidentally killed as a result, she should not be charged. But if she wounds one and then walks up to him and blows his head off, that's a different matter."

The law in Queensland was last updated under the Rob Borbidge-led Coalition Government when the use of force by householders against intruders was expanded to cover the defence of property as well as the person.

It followed the failed prosecution of Redcliffe invalid pensioner, Gaetano "Tom" Castorina, who shot a man he thought was trying to break into his home in 1994.

A jury cleared the 62-year-old of charges of attempted murder and grievous bodily harm.

In 1996, the DPP dropped a charge of manslaughter against Brisbane man Greg Bateman, who shot 16-year-old Matthew Easdale during a break-in at Mr Bateman's home in Rochedale south.

At the time, Matthew's mother Kathy pleaded for reasonable force laws to be clarified.

"We're going to kill a lot of young children this way, because they do stupid things," she said.

In April 2000, Ipswich man Trevor Bartlett said investigating police congratulated him after he had chased away two burglars, smashing one in the ankle.

In March 1999, Bribie Island man Steven Eason escaped charges after stabbing to death a home intruder who had shot him.

Police figures show almost 100 homes are robbed every day in Queensland. There were 34,037 home break-ins in the 12 months to July 2004.

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