NSW burglar died after 'citizen's arrest'

Prosecutors allege Benjamin Batterham simply went too far.
Prosecutors allege Benjamin Batterham simply went too far.

An apprentice chef accused of murdering a burglar was only guilty of making a citizen's arrest, a NSW court has been told.

Benjamin Batterham had been a person of good character until Ricky Slater broke into his home "under the cover of darkness", his defence barrister said.

Batterham, 35, was at home at Hamilton drinking with a friend when he saw 34-year-old Slater in a bedroom about 3.20am on March 26, 2016.

Winston Terracini SC told a Newcastle Supreme Court jury on Friday during his closing address Batterham had been entitled to reside in his own home without someone breaking in and stealing from him.

The only reason Batterham chased and tackled Slater near his home before putting him in a choke-hold and repeatedly punching him to the head was because "the deceased man wanted to be a thief", Mr Terracini said.

He argued Slater, who had been carrying a bag containing a number of knives, had tried to run to escape justice before the accused made a citizen's arrest.

At one stage when he released his grip, Slater bit him on the hand as he struggled to get away which was why Batterham grabbed him again, "basically defending himself again from being attacked", Mr Terracini said.

"When the defendant chased the deceased, he had a lawful right to do so."

Mr Terracini said the concept the jury had to consider was there was a chase to apprehend an offender until police arrived.

"It's called a citizen's arrest," he said.

Crown prosecutor Wayne Creasey SC earlier told the court Batterham was angry, had a "high degree of animosity" towards Slater and intended to kill him or cause him serious bodily harm.

"The thrust of our submission is the accused went completely over the top," Mr Creasey said.

The prosecutor said Batterham, who has pleaded not guilty to murder, had a legal right to chase and detain the burglar until police arrived but went too far.

Mr Creasey said he ignored pleas from neighbours to release Slater when the burglar was crying out he couldn't breathe.

He urged the jury to also remember evidence from neighbours and police during the two-week trial who claimed Batterham repeatedly threatened to kill the burglar outside a driveway down the road from his home.

The 178-centimetre tall Slater, who was high on ice at the time, had scarring to his heart because of regular drug use, suffered liver disease and was obese, weighing 118 kilograms.

He suffered a cardiac arrest following the attack but was revived by paramedics. Slater had another two cardiac arrests when in hospital and died the next day.

The trial, before Justice Desmond Fagan, continues on Monday.

Australian Associated Press