The loaded question of self-defence
Adelaide Advertiser, Page 18. Monday, 12 October 2009
Three weeks ago in this column I wrote that if an intruder breaks into your home and you kill him (or her), you are not guilty of a crime if you establish that you genuinely believed that a home invasion was being committed.
To be convicted of an offence, the prosecution would have to prove that you did not believe your conduct was necessary and reasonable for defensive purposes.
If you said nothing, it would be next to impossible for the prosecution to prove what was going on in your head.
I have been contacted by the police firearms branch and it has been pointed out to me that I was in error, not on any of the matters that I have just mentioned, but in the hypothetical scenario in the column where I wrote that you killed the intruder with a loaded shotgun that you kept in your bedroom, yet you committed no offence.
It has been pointed out to me that it is a breach of the law to keep a loaded gun in your bedroom, even if you hold a firearms licence and your firearm is registered.
The regulations say that firearms must be locked up in the prescribed manner (generally a gun safe or strongroom) and all ammunition must be stored in a locked container separately from the firearm. A firearms licence is endorsed with the use to which the holder of the licence can put the firearm.
Now the use might be target shooting or hunting, but self-defence is not normally an approved use.
Even if you had the appropriate licence and kept your gun in a locked safe with the ammunition locked up separately, you would still not be able to use your gun to defend yourself in your own home unless there was an endorsement on the licence by the Registrar of Firearms specifically approving that use.
The Firearms Act says that you commit an offence if you use a firearm for a purpose not authorised by your licence.
An unsecured gun in your bedroom could cost you a maximum fine of $2500 and the use of the shotgun in breach of your firearms licence could incur a maximum fine of $20,000 or imprisonment for four years. This is so even if the intruder was armed and was threatening you.
In order to avoid breaking the law, you may need to beat the intruder to death with the unloaded shotgun.
It is not clear from the Firearms Act whether that would be a breach of your licence conditions, but you may have a defence if you are not using the shotgun as a firearm.
It may not be an offence, for example, to use the barrel for cracking walnuts. As I do not want to be taken to task by the police again, I might add that walnut cracking is not an appropriate use for a shotgun.
Even if you did not break the law by using your gun as a club, it would still be necessary for you to carry your firearms licence with you when you were clubbing the intruder, even if it is in your own home.
Otherwise you would be committing another offence, the maximum penalty for which is a fine of $5000.
The best solution if you have to defend yourself in your home and you want to obey the law, is to use as a weapon something other than your licensed firearm. John Goldberg is president of the Law Society of SA.
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