Burglary

Question 1

Name the Act, Section, Penalty and Ingredients for Burglary (enters).

Answer 1

Burglary

S231(1)(a) CA1961

Penalty: 10 Years Imprisonment

Enters / Any building or ship or any part of any building or any part of any ship / without authority / with intent to commit an imprisonable offence in the building or ship

Question 2

Name the Act, Section, Penalty and Ingredients for Burglary (having entered).

Answer 2

Burglary

S231(1)(b) CA1961

Penalty: 10 Years Imprisonment

Having entered / Any building or ship / Remains in it without authority / with intent to commit an imprisonable offence in the building or ship

Question 3

What are the three things that must be proved in cases of burglary?

Answer 3

1. The accused entered a building or ship AND
2. He did so without authority AND
3. At the time of the entry he had an intention to commit an imprisonable offence within the building or ship

Question 4

What is the definition of ‘enters’ and where is it found?

Answer 4

S231(3) CA1961

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

Question 5

What is the definition of ‘building’ and where is it found?

Answer 5

S231(2) CA1961

Building means any building or structure of any description, whether permanent or temporary, and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

Question 6

What does R v Manning state regarding buildings?

(An unfinished house, of which all the internal and external walls had been completed, the roof was on and the floor was substantially complete, was held to be a “building” but Lush J, stated that “four walls erected a foot high” would not be a building).

Answer 6

An unfinished house can be a building depending on it’s state of completion.

Question 7

What is the essence of burglary in terms of what constitutes forms of living accommodation other than buildings?

Answer 7

The essence of the offence is invasion of “private space” and of living accommodation - on that basis any vehicle used for accommodation may be considered a “building”.

Question 8

What does Pritchard v Police state regarding buildings?

(The accused stole items from a house bus and argued before the District Court that the “house bus” did not fall within the definition of “building”. The Crown argued that “it would not make any sense if S231(1) applied to a person caught stealing from a tent or caravan but did not apply to the same person caught stealing from a house bus at the same location”. The DCJ agreed and the accused appealed to the High Court, which dismissed the appeal and the Judge stated “in each case the aim of the legislation is the same, namely, to apply a particular criminal sanction for the intrusion into living accomodation.”).

Answer 8

To achieve it’s purpose Parliament adopted a very wide definition of “building”… Parliament recorded that the definition includes tents, buildings, caravans etc.

Given the use of the word ‘includes’ and the particular examples used it is clear that Parliament was not attempting to provide a comprehensive list of the items that might fall within the definition.

Question 9

Does an “enclosed yard” have to be fully enclosed?

Answer 9

No - a yard may be “enclosed” if the bulk of the boundary is in some way enclosed. A continuous and unbroken enclosure is not necessary.

Question 10

What does Police v Batista-Pulgar state regarding enclosed yards?

Answer 10

A yard may be an enclosed yard… Notwithstanding that part of the frontage has no physical barrier preventing entry into the yard.

Question 11

What is the definition of “ship” and where is it found?

Answer 11

S2 CA1961

Ship means every description of vessel used in navigation, however propelled, and includes any barge, lighter, dinghy, raft or like vessel; and also includes any ship belonging to or used as a ship of the armed forces of any country.

Question 12

What is an example of a person who would have entered a part of a building or a part of a ship, and would be liable under S231(1)(a)?

Answer 12

A person on a cruise who enters into another passenger’s cabin to sexually assault one of the occupants, or;

A person who enters a shop lawfully under the implied licence of the shop owner and then goes into a staffroom with the intent to steal items.

Question 13

Does the CA1961 define “authority”? What does “authority” mean?

Answer 13

No - in general terms permission to enter onto (or remain within) the premises by the occupier or person entitled to give consent. In many cases there will be implied authority while the premises are open to the public, such as in the case of shops or restaurants.

Question 14

What does R v Barwell state regarding implied authority?

(They clarified that any implied authority does not cease when the intentions of the offender are for illegal purposes as they do not believe the law writers meant for the provisions of S231 to lower the seriousness of the offence to include shoplifters or the like when amended in 2003).

Answer 14

A person who enters retail premises while 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 CA1961.

Question 15

In Keen v R, what three step process that juries should go through when deciding whether a person had “authority” to enter onto premises or ships was outlined?

(Keen argued with the occupants of a premises and returned three days later with a knife and kicked the door in when the occupants failed to answer it. Keen presented the knife at one of the occupants and told him that he intended to stab him and would be back later. At trial, Keen claimed that he had authority to enter the premises on the basis of his belief that items of his clothing and his puppy were inside the address).

Answer 15

1. What is the authority asserted?
   (What authority was asserted for him to go and uplift his property?)
2. What is the extent of that authority?
   (What did this authority allow him to do?)
3. Was it exceeded?
   (In kicking open the door and entering the premises has he exceeded the authority given to him?)

Question 16

What is specified in S231(3) of the CA1961 regarding entrance without authority?

Answer 16

S231(3) CA1961

(b) Everyone who gains entrance to a building or ship by any threat or artifice used for that purpose is to be treated as having entered without authority.

Question 17

If threats are made by an offender in order to gain entry to a premises, what is the required sufficiency threshold for these threats?

Answer 17

The ‘threat’ should be a threat 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, e.g. an offender threatening to burn down a building unless the person allowing access lets them in.

Question 18

What is “artifice” with regard to gaining entry to a premises? What would be an example of artifice being used?

Answer 18

Entry gained through trickery or deception. An example of this would be a person telling a child that they were a tradesman organized by the child’s parents to fix something in the house.

Question 19

Does any part of S231 require that the accused know or be aware that their entry is without lawful authority?

Answer 19

No - there should be a distinction between the mental element around the authority to enter and the intent to commit an imprisonable offence, but the general principle requires that the prosecution should have to establish recklesness at the very least in terms of all aspects of the actus reus.

Question 20

What does R v Collins state regarding authority to enter?

(Accused had been drinking, passed complainants house and climbed ladder to her bedroom naked with intent to have sex with her. She beckoned him in thinking he was her boyfriend, not realising until after she had already begun to have sex with him that it was in fact the accused rather than her boyfriend. When she realised, the accused vanished and later successfully appealed a conviction for burglary as the complainant had invited him in, even though ID was mistaken).

Answer 20

There cannot be a conviction for entering a premises “as a trespasser” unless the person entering does so knowing he is a trespasser and deliberately enters or is reckless whether or nor he is entering the premises of another without the other party’s consent.

Question 21

Can ignorance of the law regarding authority be a defence to a burglary? Where is the legislation supporting this found?

Answer 21

S25 CA 1961

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

Question 22

What does Simester & Brookbanks: Principles of Criminal Law state regarding intent?

Answer 22

A person “intends to do an action (or to bring about some consequence) if he wants to do that action (or to bring about that consequence)… and he behaves as he does because of that desire.”

Question 23

What does R v Mohan state regarding intent?

Answer 23

Intent involves “a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence”.

Question 24

What does R v Waaka state regarding intent?

Answer 24

A “fleeting or passing thought” is not sufficient, there must be a “firm intent or a firm purpose to effect an act”.

Question 25

How is intent proved in burglary cases?

Answer 25

The best evidence of intent is proof that an imprisonable offence was committed inside the premises entered - an offender’s admissions as to their intent are good evidence, however it is good practice to support these with circumstantial evidence from which their intent can also be inferred.

Question 26

What does R v Collister state regarding intent?

(Two Police Officers were charged with demanding with menaces after causing a man to believe he would be arrested for soliciting homosexual acts unless he paid them money. Although no express demand for money was made, it was held that the defendant’s intent could be inferred from the circumstances).

Answer 26

The demeanor of the prisoner and the circumstances of the case are such that an ordinary reasonable man would understand that a demand for money was being made on him.

Question 27

What three things can circumstantial evidence from which an offender’s intent may be inferred include?

Answer 27

1. The offender’s actions and words before, during and after the event.
2. The surrounding circumstances.
3. The nature of the act itself.

Question 28

What is the definition of an imprisonable offence, and where is this definition found?

Answer 28

S5 CPA2011

In the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment.

Question 29

What three things must be proved during a prosecution made under S231(1)(b)?

Answer 29

1. The accused entered a building or ship, AND
2. Remained in the building or ship without authority, AND
3. 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 30

What are two ways in which an offender may remain in a building or ship with intent to commit the imprisonable offence?

Answer 30

1. The act of deliberately remaining in the building after the point where the accused should have left the building, but the intent to commit the imprisonable offence has been formed before their (authorised) entry.
2. A continuing act of remaining in the building without authority, and this act being accompanied at some point (later) by an intent to commit an imprisonable offence within the building - an unauthorised act of remaining may therefore later become burglary if there is a later formation of the necessary mental element.

Question 31

Name the Act, Section, Penalty and Ingredients for Aggravated Burglary (while committing burglary).

Answer 31

Aggravated Burglary

S232(1)(a) CA1961
Penalty: 14 Years Imprisonment

While committing burglary / has a weapon with him/her OR uses anything as a weapon.

Question 32

Name the Act, Section, Penalty and Ingredients for Aggravated Burglary (having committed burglary).

Answer 32

Aggravated Burglary

S232(1)(b) CA1961
Penalty: 14 Years Imprisonment

Having committed burglary / has a weapon with him/her OR uses anything as a weapon / while still in the building or ship.

Question 33

What does S232(2) of the CA1961 state regarding being armed with a weapon to commit burglary?

Answer 33

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 34

What three things must the prosecution prove beyond reasonable doubt in cases of Aggravated Burglary under S232(1)(a)?

Answer 34

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 35

At considering an aggravated burglary charge under S232(1)(a) (while committing burglary), at which point is the burglary complete?

Answer 35

S232(1)(a) would apply up and until entry had been gained and the imprisonable offence was complete.

Question 36

What is the meaning of “weapon”?

Answer 36

Something used to inflict bodily injury. Includes actual weapons such as guns or swords, but also any other item which the accused “intended to use to inflict harm should the need arise”. However, the provisions are limited to ‘weapon’ and do not extend to the words of ‘offensive weapon’ as in other sections of the CA1961 (e.g. aggravated robbery).

Question 37

What does R v Pitman state regarding weapons?

(The accused burgled a dairly and as he ran from the shop an unloaded air pistol dropped from his pocket. His defence was that an unloaded air pistol was not a weapon).

Answer 37

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 38

What is the requirement for having a weapon when considering a charge of aggravated burglary?

Answer 38

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.

Question 39

What does R v Kelt state regarding weapons?

(Upon the offender’s arrest for aggravated robbery with a firearm, police located a ‘robbers kit’ containing a gun and ammunition in his kitchen. Defence argued that having the firearm in the kitchen did not meet the criteria of “had with him”, however Appeal Court disagreed).

Answer 39

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 40

What does R v Manapori state regarding two people having the same weapon?

(Four occupants of a vehicle in which a sawn-off shotgun were located were charged under the provisions of S55 Arms Act 1983 with regard to to “has with” the firearm)

Answer 40

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 41

What does R v Cugullere state regarding possession of offensive weapons?

(The defendant was stopped by police while driving a stolen van in which three pickaxe handles (offensive weapons) were located. The defendant argued successfully that it was not his van and that he had no knowledge that the illegal items were in it).

Answer 41

The words “has with him” must mean “knowingly has with him”.

Question 42

What is the meaning of “uses” in the context of “uses any thing as a weapon”?

Answer 42

It takes on its normal meaning of “to put into service or action”, and can relate to items not normally 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 tot he intent being shown by the accused.

Question 43

What does R v Steele state regarding the use of weapons?

(Two offenders broke into a house and made threats referring to a firearm that was in their possession but the complainants did not see. On appeal it was argued that the accused never ‘used’ the firearm, but the judge disagreed).

Answer 43

‘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 44

What does a weapon in the context “uses anything as a weapon” include?

Answer 44

Any item capable of inflicting bodily injury so long as the person using it intends for it to be used for such a purpose. In instances where the object would not be a weapon in general terms (e.g. a screwdriver) then it would need to be proven that it was capable of inflicting bodily injury in the circumstances.

Question 45

What four things must the prosecution prove beyond reasonable doubt in cases of Aggravated Burglary under S232(1)(b)?

Answer 45

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

Question 46

What does the prosecution have to prove in cases of aggravated burglary under S232(1)(b) in terms of the burglary having been committed?

Answer 46

Evidence beyond reasonable doubt that the burglary had been committed.

Question 47

At what point is an offender considered to be no longer “while still in the building or ship”?

Answer 47

As soon as they have left the building or ship - if they have a weapon with them or use a weapon after that point then it becomes a different offence (e.g. aggravated assault)

Question 48

What two things must the prosecution include under Aggravated Burglary charges from S232(2) of the CA1961?

Answer 48

1. The accused was armed with a weapon, AND

2. They intended at the time to commit a burglary.

Question 49

What does “armed” mean in cases of aggravated burglary under S232(2)?

Answer 49

The accused must physically carry or have the weapon in question immediately available.

Question 50

What does S233(1) of the CA1961 regarding being disguised or in possession of instruments for burglary?

Answer 50

Everyone is liable to a term of imprisonment not exceeding three years who, without lawful authority or excuse:

(a) has in his or her possession any instrument capable of being used for burglary with intent to use it for such a purpose; or
(b) has his or her face covered or is otherwise disguised with intent to commit any crime.

Question 51

What does S233(2) of the CA1961 state regarding convictions for those in possession of instruments for burglary?

Answer 51

If any person is convicted of being in possession of an instrument for burglary, the Court may, if it thinks fit, order the instrument to be forfeited to the Crown or disposed of as the Court directs at the expense of the convicted person, and may order the person to pay any reasonable cost incurred by the Commissioner of Police in retaining the instrument.

Question 52

What are the ‘must know’ case laws for Burglary?

Answer 52

Police v Barwell
R v Collins
R v Mohan
R v Waaka
Police v Pitman
R v Kelt
R v Steele

Question 53

What are the ‘relevant’ case laws for Burglary?

Answer 53

R v Manning
Pritchard v Police
Police v Batista-Pulgar
Keen v R 
Simester & Brookbanks: Principles of Criminal Law
R v Collister
R v Manapouri
R v Cugullere