Burglary

Question 1

What must be proved for a charge under section 231(1)(a)?

Answer 1

1. Accused entered a building and/or ship.
2. Without authority
3. At time of entry had an intention to commit an imprisonable offence within building/ship.

Question 2

Define: Entry

Answer 2

Entrance is made as soon as any part of the body of the person, or any part of a tool used by that person is within that building or ship.

Question 3

Define: Building

Answer 3

Any building or structure, whether permanent or temporary, and includes a tent, caravan or houseboat and also includes any enclosed yard, closed tunnel or cave.

Question 4

R v Manning - in regards to definition of a building

Answer 4

An unfinished house with all internal/external walls complete and roof on WAS considered to be a building. Although “four walls erected a foot high” would not be.

Question 5

Pritchard v Police - in regards to definition of a building

Answer 5

A house bus IS considered a building.

Question 6

Police v Batista-Pulgar - in regards to the definition of an enclosed yard

Answer 6

Enclosed yard takes on its common meaning. The bulk of boundary must be in some way enclosed. Even if “part of the frontage has no physical barrier into the yard”.

Question 7

Define: Ship

Answer 7

Means every description of vessel used in navigation however propelled; and includes any ship belonging to or used as a ship or the armed forces of any country.

Question 8

Define: Any part of a ship or building

Answer 8

Where a person is lawfully on a building or ship, but then enters into an area of the building or ship that they are not authorised to be in with the required intent to commit an imprisonable offence, they could be liable under s231(1)(a).

Question 9

Define: Without authority

Answer 9

The act does not provide a definition of “authority”. In general terms permission to enter (or remain) on the premises will be given by the legal owner or occupier.

Question 10

Police v Barwell (2006) - MUST KNOW 231(1)(a)

Answer 10

A person who enters a retail premises whilst those premises are open to the public, intending to commit a crime in the building does not do so “without authority”, in terms of s231.

Question 11

Keen v R - in regards to deciding whether a person had “authority” to enter.

Answer 11

In Keen v R the court outlined a three step process juries should go through when deciding on whether a person had "authority" to enter. 
Three questions are: 
1. What is the authority asserted?
2. What is the extent of that authority?
3. Was it exceeded?

Question 12

In regards to entry by threat or artifice, define: threat.

Answer 12

The threat should be sufficient in nature to enable a person to have gained entry. The person receiving the threat must have acted in allowing the person entry as a result of the threat given.

Question 13

In regards to entry by threat or artifice, define: artifice

Answer 13

Artifice is the dictionary is defined as:
- A clever expedient
- Crafty or subtle deception
- skill, cleverness
- etc.
Therefore entry gained through any trickery or deception would be deemed to be “without authority”.

Example: Entry gained by a person telling a child that they were a tradesman organised by the child’s parents to fix something in the house.

Question 14

R v Collins (1972) - MUST KNOW

Answer 14

There cannot be a conviction for entering a premise ‘as a trespasser’ unless the person entering does so knowing he is a trespasser and deliberately enters or is reckless whether or not he is entering the premises of another without the other party’s consent.

Example: Female ushered a male inside to have sexual intercourse with him under mistaken identity. Male entered and began have sex with her. Female realised half way through and slapped male in the face. Male decamped. NOT entering ‘without authority’ as the male did not ‘knowingly’ trespass.

However: it is not a legal defence to be ignorant of the law, ie - a tenant who is unaware of the legalities of a tenancy agreement and enters when it was illegal to do so. Ignorance is not a legal defence.

Question 15

Describe: Intent - in regards to ‘with intent to commit an imprisonable offence in the building/ship s231(1)(a)

Answer 15

Intent means the act or omission must be done deliberately. It must be more than involuntary or accidental.
Intent must be present at time of entry, thus once entry has been gained with the required intent and without authority, the offence is complete.

Question 16

Proving intent - name four ways to prove intent

Answer 16

1. Defendant admissions
2. The offenders actions before/during/after the event.
3. The surrounding circumstances
4. The nature of the offence itself.

Question 17

s231(1)(b) - what must be proved?

Answer 17

• The accused entered the building/ship
• Remained in the building/ship without authority
• At the time of remaining in the building or ship they had an intention to commit an imprisonable offence within the building or ship.

Question 18

Define: Remains in

Answer 18

Firstly, the physical act of remaining inside the building. Coupled with the fact it is without authority and with an intention to commit an imprisonable offence.

Example: Person enters a store during opening hours, then hides within the building past closing time, with intention to steal goods once staff members have left.

Question 19

Police v Barwell (2006) - MUST KNOW 231(1)(b)

Answer 19

A person who enters a retail premises whilst those premises are open to the public, and then forms the intention to commit a crime in the building does not remain on the premises without authority.

Question 20

Aggravated burglary s232(1)(a): what must be proved?

Answer 20

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

Question 21

Define: Aggravated burglary s232(1)(a) and s232(1)(b).

Answer 21

232(1)(a): While committing a burglary, has a weapon with him or her, or uses any thing as a weapon.

232(1)(b): Having committed a burglary , has a weapon with him or her, or uses any thing as a weapon, while still in the building/ship.

Question 22

Define: Weapon

Answer 22

The word weapon means “something used to inflict bodily injury”. It includes guns, knives etc but also any other item which the accused ‘intended to use to inflict harm should the need arise’.

Question 23

Police v Pitman (2008) - MUST KNOW

Answer 23

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 24

Define: ‘with him or her’

Answer 24

The words “has a weapon with him or her” require no more than that the weapon is on the person of the accused OR is readily available to him or her.

Note: more than one person can have the same weapon ‘with him or her’, as defined in case law R v Manapouri, where four males located in a car with a firearm. All were found to technically ‘have with them’ the firearm.

Question 25

R v Kelt (1977) - MUST KNOW

Answer 25

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 26

Define: ‘Uses’

Answer 26

The word ‘uses’ would take on its normal dictionary meaning of “put into service or action”.
To use a weapon is more than to ‘have with him/her’ and therefore would be harder to prove.
Case law R v Steele (2007) gives an example of offenders merely stating they have a weapon, combined with the fact that actually did have it in their physical possession and readily available was enough for the weapon to have been “used”.

Question 27

R v Steele (2007) - MUST KNOW

Answer 27

‘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 28

Define: Anything as a weapon

Answer 28

Under this provision the item is not necessarily one that is made to inflict bodily injury (ie, firearm, knives etc), but also an item capable of inflicting bodily injury.
In the case of an item capable of inflicting bodily injury it must be shown the accused intended to use it for that purpose.
Example: A person uses a screwdriver to break into a house. This is not a weapon at this stage. However once inside he is confronted by the home owner, and then holds out the screwdriver and threatens the home owner, it is now a weapon as the accused intends it to be used as such, and the screwdriver is capable of inflicting bodily injury.

Question 29

Aggravated burglary s232(1)(b), what must be proved?

Answer 29

• The accused had committed a burglary, AND
• Had a weapon with him, OR
• Used anything as a weapon, AND
• Was still in the building/ship at the time of having or using the weapon

In contrast to s232(1)(a) this provision is after the face and the burglary has already been committed, however the accused is still on the building/ship.

If the accused had left the building/ship, then used a weapon to help facilitate escape, aggravated assault could be considered.

Question 30

Aggravated burglary - s232(2), what must be proved?

Answer 30

• The accused was ARMED with a weapon, AND
• They intended at the time to commit a burglary

No requirement for the accused to have actually committed a burglary, however the accused must now be ‘armed’ with a weapon, which is closer than ‘has with him/her’.

Question 31

Define: Armed - s232(2)

Answer 31

To be armed would take on the meaning that the defendant is carrying the item or has it available for immediate use as a weapon.

Question 32

Define: s233(1)(a) and 233(1)(b)

Answer 32

233(1)(a): Everyone who without lawful authority/excuse has in his or her possession any instrument capable of being used for burglary with intent to use it for such a purpose.

233(1)(b): Everyone who without lawful authority/excuse has his or her face covered or is otherwise disguised with intent to commit any crime.