自衛殺人之二

Murder and self-defence: How far can you go to protect yourself in a home invasion?

What is a reasonable response to being confronted by a home intruder? It is among the most difficult questions that can be posed in a courtroom.

In the heat of the moment a person defending themselves "cannot weigh ... the exact measure" of what is necessary, as a famous United Kingdom case on self-defence made clear.

But a jury, or a judge sitting without a jury, will be required to draw a line between what is reasonable and what is not if a person kills or seriously injures their attacker.The case of Benjamin Batterham, a Newcastle home owner who was charged with murder on Sunday over the death of alleged burglar Ricky Slater-Dickson, has highlighted the complexities of the law of self-defence, although no conclusions can be drawn from the case.

In NSW, a person will not be held responsible for a crime if they were acting in self-defence, meaning they believed their actions were "necessary" to defend themselves or another person; to prevent them being unlawfully detained; to protect property; or to prevent a criminal trespass.

Importantly, their actions must be "a reasonable response in the circumstances as he or she perceives them", which is an objective question.

It does not matter if a person's perception of the threat – for example, that the attacker had a knife – turns out to be wrong. But the judge or jury may disbelieve the version of events offered by the accused.

"It's really looking at both ends of the spectrum: what actually happened versus the perspective of the accused," said NSW Law Society president Gary Ulman.

"If the person believed that the conduct was necessary and the conduct is a reasonable response, having regard to the way in which the accused perceived the circumstances, then self-defence would apply."

It is up to the prosecution to prove beyond reasonable doubt that an accused was not acting in self-defence, rather than the accused bearing the onus of proving they were acting in self-defence.

There are two significant limitations on the defence. First, if a person uses "excessive force", they may not be found guilty of murder but may be found guilty of manslaughter if they killed their attacker and their response was not reasonable.

Second, if a person was only seeking to protect property or prevent a criminal trespass, rather than protect a person, they cannot rely on self-defence in a murder trial but could rely on it as a defence to a lesser charge such as assault.

Sydney barrister Stephen Odgers SC, chair of the NSW Bar Association's Criminal Law Committee, said the legislation was "not simple" and "everything will depend on the particular circumstances of the case".

There may be "competing accounts" of what happened during an altercation.

"You can't just kill someone because they've trespassed on your property," Mr Odgers said.

"There are going to be issues about what precisely what happened at the time the death was caused."

(29/3/2016 Sydney Morning Herald)

我昨天為此課題寫了一篇, 悉尼晨鋒報今天也作了跟進的報導, 講紐省相關的法律。這不易講, 因為不同情況產生很多變數。香港爆竊案不會比悉尼多, 我在悉尼的朋友絕大多數住獨立屋, 被爆竊的機會自然也較大。這裏地大警力不足, 發生了爆竊警察也愛理不理的, 不要講破案, 處理的效率也很低, 連指模也未必掃, 賊走了就自己找保險賠償了事。爆竊本身是破案率頗低的罪案, 所以不要指望警察可以幫到你。

討論自衛殺人一點也不易, 舉些假設性例子來討論會較為具體。如果有賊入屋遇到屋主反抗, 屋主誤以為賊人手持武器, 故此用棒球棍打了這賊一下, 便把賊打死了, 究竟會不會定他謀殺罪呢? 法庭判決的考慮會包含主觀及客觀因素。所謂主觀, 是指被告的想法。如果陪審團相信被告當時真誠地相信賊人手持武器, 他感到生命受威脅, 所以先發制人。客觀的考慮是被告只打了賊人一下, 陪審團覺得打一下屬合理及相稱的舉動, 沒有使用過份武力, 就應判被告無罪。就算不接納被告的講法, 極其量只是誤殺。又如果賊人闖入惡人家中, 他說老子屋企你都夠膽入嚟偷嘢, 就打瓜你。那就不單只使用過份武力, 而是有心殺人或對他造成嚴重傷害, 那種情況下足以構成謀殺。自衛殺人的舉證責任其實不在被告, 控方要在毫無合理疑點下證明被告不是自衛, 被告無需證明自己當時是自衛。

幾年前紐省發生了另一宗致死的爆竊, 賊人爆竊遇到屋主, 糾纏間屋主把賊按在前園地上等候警察到來, 賊人失去知覺後死去, 屋主最後沒有被檢控。我已不記得死因, 我相信causation的問題。所以這種案件從來都不易判斷, 在電光火石之間的決定, 沒有任何定律可言。一拳可以致死, 打一身可能反而絲毫無損, 判斷是非曲直, 武力相稱抑或過份, 只好依賴陪審團的智慧了。