Aggravated Burglary

Question 1

In case of Aggravated Burglary, what 3 things must prosecution prove beyond reasonable doubt?

Answer 1

1. The accused was in the process of committing a burglary AND
2. Has a weapon with them,OR
3. Uses anything as a weapon

Question 2

Define ‘while committing’ as per 232(1)(a)

Answer 2

Under 232(1)(a) the accused must be in the process of committing a burglary

Question 3

Which section would apply if the burglary is complete and the accused is still in the building or ship with or using a weapon ?

Answer 3

232(1)(b)

Question 4

Define weapon

Answer 4

Something used to inflict bodily injury. Not only guns, swords etc designated for that purpose, but also any other item which the accused ‘intended to use to inflict harm should the need arise’.

Question 5

What is the meaning of weapon Police v Pitman?

Answer 5

The word weapon carries the meaning of something used to inflict bodily injury…also any other item which the accused intended to use to inflict harm should the need arise…Bodily injury need not be limited to direct physical injury and can include bodily harm arising as a result of shock produced by the weapon

Question 6

Define (has a weapon) with him or her?

Answer 6

The weapon has to be on the person of th accused or readily available to him or her.

Question 7

Section 232 CA, Aggravated Burglary?

Answer 7

(1) Every one is liable to imprisonment for a term not exceeding 14 years who,
(a) while committing burglary, has a weapon with him or her or uses anything as a weapon, OR
(b) having committed burglary, has a weapon with him or her, or uses any thing as a weapon, while still in the building or ship.
(2) Every one is liable to imprisonment for a term not exceeding 5 years who is armed with a weapon with intent to commit burglary

Question 8

Has a weapon with him or her, R v Kelt?

Answer 8

Having a firearm ‘with Hine’ requires “a very close physical link and a degree of immediate control over the weapon by the man alledged to have the firearm with him”

Question 9

R v Kelt, what does have a firearm with him mean?

Answer 9

Having a firearm “with him” requires “a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him”.

Question 10

In R v Manapouri can more than one person have the same weapon ‘with him’ at one time?

Answer 10

More than one person might have the same weapon “with him” at the one time if each had the physical link and the necessary control.

Question 11

In R v Cugullere ‘has with him’ what is the requirement?

Answer 11

The words ‘ has with him’ must mean ‘knowingly has with him’

Question 12

In ‘ uses anything as a weapon’ what does the word ‘uses’ relate to?

Answer 12

To put into device or action. Would relate to items not necessarily regarded as weapons .
The ‘use ‘ of anything as a weapon would clearly show how the item being used was taking on the definition of a ‘weapon ‘ due to the intent being shown by the accused.

Question 13

How is ‘to use’ defined in R v Steele?

Answer 13

‘To use’ may be limited to the offender revealing by words or conduct the actual presence of or immediate availability of the item so long as the accused have the weapon in their physical possession and readily available .

Question 14

Anything as a weapon?

Answer 14

The item is not necessarily one that is made to inflict bodily injury, it is any item capable of inflicting bodily injury so long as the person using it intends it to be used for such a purpose.

In instances where the object would not be a weapon in general terms it would need to be proven that it was capable of inflicting bodily injury.

Question 15

Action 232 (1) (b) what 4 things must the prosecution prove beyond reasonable doubt?

Answer 15

1. The accused has committed a burglary, AND
2. Had a weapon with him, OR
3. Used anything as a weapon AND
4. Was still in the building or ship at the time of having or using the weapon.

Question 16

‘Having committed’, what does the prosecution have to prove beyond reasonable doubt?

Answer 16

That a burglary had been committed and the accused is still on the premises or ship.

Question 17

Define ‘ while still in the building or ship’?

What must the prosecution prove?

Answer 17

The evidence of the accused still being on the building or ship is an essential part of the offence.
The prosecution must prove that the accused had committed a burglary and was still present in the building or ship.

Question 18

Section 232(2)?

Answer 18

Circumstances where person is armed with a weapon and at the time their intention is to commit burglary.

No necessity to prove a burglary took place.

Question 19

What 2 things must the prosecution prove beyond reasonable doubt under section 232(2)?

Answer 19

1. The accused was armed with a weapon

2. They intended at the time to commit a burglary

Question 20

Define ‘armed’ under section 232(2)?

Answer 20

The requirement that the accused be ‘armed’ with a weapon means the accused must physically carry or have immediately available the weapon in question.