What your legal rights are during a home invasion

How you react during a home invasion could change your life forever, but how far can you go to protect yourself, your family and your home? Following the death of an intruder in Sydney’s south west, The Daily Telegraph spoke with a prominent defence lawyer. HERE ARE YOUR LEGAL RIGHTS.

• Dad released ‘pending inquiries’ as intruder dies

You’re woken by the chilling sound of someone in your home and walk downstairs to find an intruder in your lounge room. What do you do?

How you react in this situation could change your life and the lives of those in the house you were trying to protect.

The question has arisen after a 35-year-old man died during a home invasion at Harrington Park on Sunday morning.

Johan Schwartz returns home after being questioned by police. Picture: Flavio Brancaleone

Barrister Peter Lavac (right) with bouncer Dirk Nierop outside Downing Court in Sydney.

MORE NEWS

Paralegal turned drug boss under lover’s orders

Ibrahim girlfriend has Glock trial delayed

Hardcore greenies coach kids to skip school

The barefoot intruder lost consciousness during a struggle with father-of-one Johan Schwartz and died a short time later.

Mr Schwartz was questioned by police for more than 10 hours and released without charge “pending further inquiries”.

Peter Lavac, a prominent criminal barrister with 42 years legal experience spoke to The Daily Telegraph about the rights of homeowners and renters during home invasions.

While not commenting on the Schwartz case, Mr Lavac, said in general terms residents have the “right to defend their property, the right to defend themselves and the right to defend and protect their family”.

“A homeowner’s home is their castle,” he said.

Police outside the Schwartz family home at Harrington Park. Picture: Monique Harmer

While this is something that is “enshrined in law”, Mr Lavac points out that there is a catch.

The resident is “entitled to use reasonable force which is proportionate to the threat they are facing”.

“If they use excessive force and the person dies, they could be charged with manslaughter”.

In the case of Mr Schwartz, police will investigate, with the help of autopsy results, if the 44-year-old used reasonable force during the struggle. They will also determine what level of threat the intruder posed to Mr Schwartz.

“Did he (the intruder) have a weapon? Was he armed? Was he off his face on drugs?

The body of the deceased man is removed from the home on Westwood Court at Harrington Park. Picture: Monique Harmer

“If he was on ice that presents a substantial threat to the homeowner,” Mr Lavac said.

Even if the intruder didn’t have a weapon, “by virtue of being high on ice, the homeowner is entitled to use more force,” because the drug brings out “superhuman strength” qualities in users”.

Johan Schwartz and his wife on their wedding day. Picture: Facebook

Police suspect Mr Schwartz was restraining the would-be thief when he lost consciousness.

His wife called to neighbours who ran into the house and began CPR on the man. Paramedics were also called but the intruder could not be revived.

Mr Lavac told The Daily Telegraph he has been involved in similar cases where the police investigation hinges on the cause of death.

“I have seen situations where an intruder has had an underlying medical condition and died as a result of moderate force being used,” Mr Lavac said.

The criminal barrister said courts are generally “very sympathetic” on residents who are attacked in their homes.

“If he’s found guilty of manslaughter after being found to use excessive force, I don’t believe he would go to prison if he has no previous convictions for violence,” Mr Lavac said.

“I would say the court would deal with him leniently. I’ve seen these sorts of cases where a non-custodial sentence was imposed”.