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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4138 ..

MR STANHOPE (continuing):

If in the defence of their property a person is accidentally killed, if in the defence of their property a person is killed but there is absolutely no intention in the protection of the property to kill that person or to seriously injure or maim them, then that is a different circumstance. But if we have a burglar in our house and we have no reason to believe that that burglar has any design to harm us, if we believe fully, consciously and reasonably that that person intends to pinch our CD, our video player or our television, it is not appropriate that the Assembly legislates to allow us to set out to kill that criminal to save our property. That is just not reasonable; that is not civilised. It is not the standard that a civilised society or community should apply. That is my view, that is my belief, and that is why we have explicitly stated that this defence should not apply to a person protecting their property.

We have to be clear about this point. In this provision we are talking just about intention. You can defend your property, and you can rely on the defence if you did not intend to kill or cause serious injury. Once again, this is an issue that the criminal courts deal with all the time. These are the distinctions that are drawn in every defence of a murder case. It is a vital element, it is the No 2 element-"Yes, I did the act, but, no, I didn't intend to kill."These are the two arms of the defence of anybody charged with murder. Either, one, "I didn't do it,"or, two, "Yes I did do it but I didn't intend to cause death."

We are saying here in relation to a property defence, or in defending one's property, that if you did not intend to cause death or serious injury then the defence applies. That is reasonable. That is a standard that I and this government will stand by. But we are not going to sanction or defend the deliberate taking, the intentional taking, of human life to protect property. I think that is a reasonable position, it is a just position, it is a civilised position, and it is a position that we will continue to stand by.

The shadow Attorney alluded in his speech to the notion of reacting by instinct. There has been some suggestion that the householder will have to stop and think and make the judgment: "Oh, if I do this, am I covered by the defence?"We all respond by instinct. I think most of us would probably go wobbly at the knees and try to get out of the way. That is probably the instinctive response of most people, but some won't. Some will respond in other ways. Some will respond instinctively and aggressively, and their instinct will be to protect their property, to protect their home and to protect their family. In following through on that instinct they may cause grievous bodily harm. But if their intention was simply to protect their household, to protect themselves, to protect their family, to protect everything that was important and valuable to them and they had no intention to take life then the defence is notionally available to them.

The criminal law has traditionally always stopped short of authorising lethal and serious bodily force in the defence of property. It is the position we have had traditionally. I learnt when I was at law school 30 years ago, and I know Mr Stefaniak did as well, that that has always been the position of the criminal law. This is a position based on the values a civilised society puts on human life and the belief that human life must always be distinguished from property.

I might just say, in conclusion, that a very significant and persuasive example of this view and attitude of the criminal law is to be found in section 221 of the Crimes Act, which provides that "an arresting police officer shall not do anything likely to cause death or grievous bodily harm to a person unless it is necessary to protect life or to

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