Can you defend your home from an intruder? Understanding Queensland’s defence of dwelling
Home invasions are something no one wants to experience. With concerns about youth crime and property breaks-ins on the rise, many Queenslanders are asking: What can I legally do if someone breaks into my house? Can I fight back? And if so, how far can I go?
The answer lies in section 267 of the Criminal Code Act 1899 (Qld) (‘the Criminal Code’) – commonly known as Defence of Dwelling.
What is defence of dwelling?
Under Queensland law, it is lawful for a person in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds—
- the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and
- it is necessary to use that force.[1]
What does this mean in practice?
In Queensland, an occupier may use force they believe is necessary, provided that belief is held on reasonable grounds.
This is not the same as requiring the force itself to be “reasonable”. The question is whether the occupier actually held the belief, and whether there were reasonable grounds for it, even if others might think it was wrong or misguided.
This threshold offers Queenslanders confidence in their rights to defend their home, however, it is not a free pass to slaughter every trespasser.
History behind the defence
The idea that “a man’s home is his castle” goes back centuries. It was famously recognised in Semayne’s Case in 1604, which described the home as a fortress.[2]
Section 267 of the Criminal Code was modernised in 1997 in response to growing community concerns about home invasions. Before that, the law only applied to “forcible breaking and entering of the dwelling house”. The current version covers any unlawful entry or remaining in a dwelling, provided you believe the intruder intends to commit an indictable offence therein.
More recently, there has been political debate about whether the law should go further. In 2024, the Criminal Code (Defence of Dwelling and Other Premises – Castle Law) Amendment Bill 2024 was introduced to Queensland Parliament. The objective of this Bill is to broaden the circumstances in which an individual can lawfully respond to a home invasion with such force that it may result in grievous bodily harm or death to the intruder.
Whilst the Bill has not passed, it has sparked significant public interest and is likely to continue generating debate about the appropriate limits of force in defence of the home.
Breaking down the elements of the defence
There are 4 elements to defence of dwelling. Importantly, the defendant bears the evidentiary burden to raise or point to evidence capable of supporting the availability of the defence. This is assessed on the balance of probabilities, which is a lower standard of proof. Once this burden is met, the legal burden shifts to the Prosecution, who must then disprove at least one element of the defence beyond reasonable doubt, a significantly higher threshold.
Element 1
The first element is satisfied where the defendant was in peaceable possession of a dwelling or was lawfully assisting or acting by the authority of a person in peaceable possession of a dwelling.
The term “dwelling”, in its summarised terms, refers to a building or structure, or part of a building or structure, kept by the owner or occupier for their residence and that of their family.[3] An area under a high-set house, where the laundry was located, has been held to fall within the meaning of dwelling,[4] as has a motel unit occupied by a person for a week,[5] and a caravan used for residential purposes.[6] However, a concrete pad on the ground between a house with a carport attached and a rear shed has been held not to be a structure or part of those buildings or structures.[7]
This means that, for example, if someone were in your yard and you reasonably believed they were attempting to enter your dwelling to commit an indictable offence, the law may allow you to use force necessary to stop them. However, it is important to remember that every situation is different, and proving that belief can be more difficult where, for instance, you live on a large acreage and the person is not near the dwelling.
In reality, the best and safest first step is always to contact Queensland Police Service immediately. If it is safe to do so from a distance, recording the intruder may help support your defence should the matter proceed to Court.
The term “possession” includes ‘having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.’[8]
There is limited Australian authority on the meaning of “peaceable”. However, in determining whether possession is peaceable, Courts have considered factors such as whether the defendant was living in the dwelling in which the events occurred, and whether there is a dispute as to their entitlement to be there.[9]
Element 2
The second element requires that the defendant used force for the purpose of preventing or repelling an intruder from unlawfully entering or remaining in the dwelling. If the victim is lawfully on the premises, defence of dwelling will not be available,[10] and the force used cannot be used as a form of vengeance.
Regarding the degree of force used, it has been held that ‘section 267 might apply even if the defendant used more force than was reasonably necessary to make an effectual defence of his person or of others in the house against [the victim].’[11] In this way, defence of dwelling does not entrench a requirement of proportionality or reasonableness for the amount of force used.
Elements 3 & 4
The third and fourth elements are often considered together given their subjective and objective components.
The defendant must hold a subjective belief that the victim was attempting to enter or remain in the dwelling with intent to commit an indictable offence, and that their use of force was necessary to prevent this. The law further requires that the defendant’s subjective belief be based on reasonable grounds, thereby introducing an objective element.[12] Threatening violence has been found to be sufficient to form a reasonable belief.[13]
Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are known as indictable offences, which may include stealing, unlawful use of a motor vehicle, or assault.[14]
In determining whether the belief in the necessity of force was reasonably held, the jury must consider the circumstances as a whole; including the level of force used and the reality that a person defending their home may not be able to precisely weigh the best course of action.[15] It must also be acknowledged that ‘reasonable people in the accused’s situation might have held a variety of beliefs ... about the relevant state of affairs.’[16] Ultimately, Courts assess reasonableness based on the situation as it appeared to a person at the time, not with hindsight.
The law also recognises that a person defending their home is not required to retreat from a threat, even where retreat might otherwise appear a reasonable option.[17] However, approaching an intruder should only ever be considered as a last resort. Protecting your own safety, and that of others in the dwelling, is paramount, and you can never know whether an intruder may be armed or in company.
Scope of defence of dwelling
Defence of dwelling is broader than self-defence and other property defences. It does not require the force used to be proportionate, and it does not exclude cases where grievous bodily harm or even death results.[18] Importantly, a person does not need to fear death or grievous bodily harm themselves to rely on the defence.[19]
The absence of a proportionality requirement, while extending the ambit of the defence, may be justified on the basis that an occupant faced with a sudden home invasion cannot be expected to exercise fine judgment as to the exact level of force required.
In principle, this means the defence can extend to lethal force, though only in the most significant circumstances. If an owner/occupier of a dwelling reasonably believes lethal force is necessary to prevent or repel an intruder from entering or remaining in the dwelling (provided they also reasonably believe the intruder intends to commit an indictable offence in the dwelling), the law can justify that use of force. The key question for the Court or jury is whether that belief was reasonable in all the circumstances and whether the force used was reasonably necessary.
In R v Spajic [2011] QCA 232, the Queensland Court of Appeal dismissed an appeal against a conviction for manslaughter, on the ground that the jury could reasonably have found that the appellant did not believe, on reasonable grounds, that it was necessary to stab the deceased to prevent entry into the dwelling. After a trial, the jury acquitted the appellant of murder and instead convicted him of manslaughter. The evidence showed that the deceased had accompanied a friend to the appellant’s residence to help her recover property she believed was inside. Although the deceased was on the appellant’s verandah and knocking loudly on a window, he neither entered nor attempted to force entry into the appellant’s house, nor did he step inside when the appellant opened the door. An altercation arose, however, the deceased was unarmed, and it was the appellant who escalated the confrontation by arming himself with a knife and confronting the group on the verandah. Violence only broke out after the appellant threatened the deceased with the knife. In those circumstances, the requirements of defence of dwelling were not satisfied, and the appeal was dismissed.
Get help from a criminal lawyer
Whilst Queensland law recognises Defence of Dwelling, it applies in limited circumstances. If someone is on your property or attempting to enter your home, the safest and most appropriate course of action is to contact the Queensland Police Service immediately.
If you have been charged with a criminal offence, it is important to seek timely and accurate legal advice from a lawyer who can advocate effectively for you in Court.
At Connolly Suthers Lawyers, our experienced Criminal Law team provide clear, reliable advice and strong representation at every stage of the process.
If you have any questions or need assistance, please contact us on (07) 4771 5664.
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Connolly Suthers Criminal Lawyers.
[1] Criminal Code Act 1899 (Qld) s 267.
[2] Semayne’s Case (1604) 77 ER 194, 195.
[3] Criminal Code Act 1899 (Qld) s 1.
[4] R v Bartram [2013] QCA 361, [19]-[20].
[5] R v Halloran and Reynolds [1967] QWN 34.
[6] R v Rose [1965] QWN 35.
[7] R v Richards [2023] QCA 7, [20]-[21].
[8] Criminal Code Act 1899 (Qld) s 1.
[9] R v McMartin [2013] QCA 339, [23].
[10] Ibid.
[11] R v Spajic [2011] QCA 232, [35], citing R v Cuskelly [2009] QCA 375, [27].
[12] R v O’Neill [2009] QCA 210, [16]; Murray v Grieve [2014] QDC 18, [58].
[13] R v Cuskelly [2009] QCA 375; R v Bartram [2013] QCA 361.
[14] Criminal Code Act 1899 (Qld) s 3.
[15] R v McMartin [2013] QCA 339, [23].
[16] R v O’Neill [2009] QCA 210, [16].
[17] R v Cuskelly [2009] QCA 375, [29], citing R v Hussey (1925) 18 Cr App R 160, 160-2.
[18] R v McMartin [2013] QCA 339, [26].
[19] R v Cuskelly [2009] QCA 375, [27].