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7.5.4 - Burglary

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Overview

  1. Burglary is an offence under Crimes Act 1958 s76.
  2. The offence has the following three elements:
    1. The accused entered a building (or part of a building);
    2. The accused did so as a trespasser; and
    3. The accused intended to:
      1. Steal something from the building or part in question; or
      2. Commit an offence punishable by imprisonment for a term of five years or more involving either:
        1. An assault to a person in the building or part in question; or
        2. Damage to the building or to property in the location (Crimes Act 1958 s76).

    The accused entered a building or part of a building

  3. The first element that the prosecution must prove is that the accused entered a "building" or "part of a building" (Crimes Act 1958 s76(1)).

    Entering a "building"

  4. Whether or not a structure is a "building" is a question of fact for the jury. Relevant characteristics include size, weight, permanence of position, the presence of doors and locks, and the availability of electricity (B and S v Leathley [1979] Crim LR 314).
  5. Inhabited vehicles and vessels are treated as "buildings" for the purposes of this offence (Crimes Act 1958 s76(2)).
  6. Issues can arise where the accused entered the external structure of a building (e.g., the porch). In such cases it is for the jury to determine whether the accused entered the "building", or simply entered a space outside the building (R v Cahill [1999] 2 VR 387).

    Entering "part of a building"

  7. Sometimes a person will be lawfully allowed to enter certain parts of a building, but prohibited from entering other parts. This first element will be met if the accused enters an unauthorised "part of a building" (Crimes Act 1958 s76(1)).
  8. In this context, there are only two distinguishable "parts" to a building: the part of a building that the accused could lawfully enter, and the remainder of the building (R v Walkington [1979] 1 WLR 1169).
  9. While these "parts" do not need to be physically demarcated, apparent demarcations will be pertinent to the jury’s assessment of whether or not the "part of the building" the accused entered was in fact "off-limits", and whether or not the accused was aware of that fact. These considerations will be relevant for the purpose of determining whether the accused was knowingly trespassing (the second element) (R v Walkington [1979] 1 WLR 1169).

    Entry as a trespasser

  10. The second element that the prosecution must prove is that the accused entered the building (or part of a building) "as a trespasser" (Crimes Act 1958 s76(1)).
  11. This requires the prosecution to prove that the accused entered the building (or part of the building) without right or authority to enter (Barker v R (1983) 153 CLR 338). [1]
  12. The prosecution must also prove that the accused entered the building (or part of the building):
    1. Knowing that he or she had no right or authority to enter; or
    2. Being reckless as to whether he or she had any right or authority to enter (Barker v R (1983) 153 CLR 338).
  13. When a person enters a building as a trespasser, s/he will still be a trespasser when s/he enters a room in that house (R v Chimirri [2010] VSCA 57).

    Absence of right or authority to enter

  14. A person does not enter a building (or part of a building) as a trespasser if his or her entry is justified by right or authority (Barker v R (1983) 153 CLR 338).
  15. A variety of "rights" and "authorities" arise under the civil law. As listed by Brennan and Deane JJ in Barker v R (1983) 153 CLR 338, they include the following:
  16. If the trial judge directs the jury in terms of a "right", "licence" or "authority" to enter, he or she should describe the meaning of that term (R v Taylor (2004) 10 VR 199).

    Limited authority to enter

  17. The accused’s authority to enter a building (or part of a building) may be subject to express or implied limitations regarding the time, place, manner or purpose of entry. In such cases, any entry outside those terms may be a trespass (Barker v R (1983) 153 CLR 338).
  18. Whether or not the accused’s authority to enter a building (or part of a building) is limited in any way is a question of fact. It cannot be assumed that the authority to enter is subject to any particular limitations (e.g., limits concerning the purpose of the entry) (Barker v R (1983) 153 CLR 338).
  19. A specific limitation cannot be implied just because it is probable that, if raised, it would have been incorporated as a limitation to the authority (Barker v R (1983) 153 CLR 338).
  20. Where the authority to enter is based on general law, that authority will ordinarily be limited to entry for the purpose for which the authority exists. Any entry for a purpose other than the authorised purpose is likely to be a trespass (Barker v R (1983) 153 CLR 338).
  21. It is therefore trespass if a person is authorised to enter a property for the purpose of protecting its contents, but instead enters the property for the purpose of stealing those contents (Barker v R (1983) 153 CLR 338).
  22. The accused will not have entered as a trespasser if he or she complied with all of the express and implied limitations of the authority to enter, even if he or she entered the property with the intention of violating a fundamental interest of the authorising party (e.g., by stealing or damaging property, or by assaulting a person) (Barker v R (1983) 153 CLR 338).

    Unlimited authority to enter

  23. Sometimes a person will have unlimited authority to enter a building (or part of a building). It is unclear whether such a person could ever be regarded as a trespasser (Barker v R (1983) 153 CLR 338; R v Taylor (2004) 10 VR 199).
  24. In England and Wales it has been held that a person who enters a building with an undisclosed intention to steal enters as a trespasser, even if he or she has unlimited authority to enter the building (R v Jones & Smith [1976] 1 WLR 672; R v Taylor (2004) 10 VR 199).
  25. This approach has also been applied in Victoria (see, e.g., the judge’s charge extracted in R v Munro [2006] VSCA 94. While the charge was inadequate, the validity of the directions on trespass proved by an undisclosed intent to rape were not challenged).
  26. However, the validity of this approach has been doubted by the High Court. The alternative position is that an unanticipated or illegitimate purpose on the part of the entrant (such as an intention to steal) cannot transform an authorised entrant into a trespasser (Barker v R (1983) 153 CLR 338 obiter per Brennan, Deane and Murphy JJ).
  27. The Charge Book burglary and aggravated burglary charges adopt the narrower approach suggested in Barker v R (1983) 153 CLR 338. That is, they direct the jury that an undisclosed intention to commit an offence cannot by itself convert an authorised visitor into a trespasser.

    Remaining on property after authority has been withdrawn

  28. Sometimes a person will remain upon property after his or her authority to be there has ended or been withdrawn. While at civil law he or she may be treated as having been a trespasser from the time of entry (a trespasser ab initio), this is not the case in criminal proceedings. In such proceedings a lawful entry cannot be retrospectively transformed into a trespassory entry (Barker v R (1983) 153 CLR 338; Victoria v Second Comet Pty Ltd (Vic SC 21/12/1994).
  29. It follows that if the accused lawfully enters a building, but his or her authority to be there is subsequently terminated, he or she will not become a burglar simply by remaining there in order to steal or commit another relevant offence. For this second element to be met, he or she must make a fresh "entry" into the building or distinguishable part of the building.

    The Accused’s Mental State

  30. For the purposes of the offence of burglary, a person only enters a building (or part of a building) as a trespasser if he or she enters:
  31. For the accused to have been "reckless" as to whether he or not she had the right or authority to enter a building (or part of a building), he or she must have believed that it was probable that s/he had no right or authority to enter the building (or its relevant part) (See R v Verde [2009] VSCA 16; R v Kalajdic [2005] VSCA 160; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641).
  32. It is not sufficient that the accused was merely aware of the possibility that his or her entry was unauthorised (R v Kalajdic [2005] VSCA 160; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641).
  33. The trial judge should direct the jury on the meaning of the term "recklessness" where that concept is in issue. Failure to direct on the meaning of this term risks the jury deciding the issue on the basis of the lower standards of carelessness or negligence (R v Taylor (2004) 10 VR 199).

    Intention to commit a prescribed offence

  34. The third element that the prosecution must prove is that the accused entered the building (or part of the building) with the intention of committing an offence prescribed in s76(1)(a) or (b) (Crimes Act 1958 s76(1)).
  35. The offences prescribed by Crimes Act 1958 s76(1) are:
    1. The theft of anything in the building or unauthorised part of the building (s76(1)(a));
    2. An offence punishable by imprisonment for a term of five years or more that:
      • Involves an assault to a person in the building or unauthorised part of the building (s76(1)(b)(i)); or
      • Involves any damage to the building or property in the or unauthorised part of the building (s76(1)(b)(ii)).
  36. Whether a particular offence is an offence "punishable by imprisonment" for any particular term is a question of law for the judge. This legal requirement does not create any factual issue for determination by the jury. So while the judge may need to make a ruling in this regard, it is not necessary to direct the jury on this issue.
  37. The prosecution must prove that the accused intended to commit the prescribed offence at the time of entry. This element is not satisfied if that intention was only formed after the accused entered the building (R v Verde [2009] VSCA 16; R v Walkington [1979] 1 WLR 1169).
  38. It seems that satisfaction of this element may depend on the way in which the presentment is framed. For example:
  39. The accused may form the necessary intent even though important matters remain outside his or her knowledge or control. For example, this element will be satisfied if the accused entered the building (or part of the building) with an intention:
  40. This element is separate to and distinct from the mens rea component of the second element (i.e., the accused knowing that he or she had no right or authority to enter, or being reckless as to that possibility). The jury should be directed separately about these elements (R v Spero (2006) 13 VR 225).
  41. It is permissible for the prosecution to allege different intents as alternatives bases of culpability in the one charge. [2] Where it does so, the jury should be directed that they must agree, not just on their ultimate verdict, but also on the basis of culpability. See Unanimous and Majority Verdicts for further information about this issue.

    Intention to steal

  42. The first way in which this element may be met is by proving that the accused intended to steal anything in the building or unauthorised part of the building (Crimes Act 1958 s76(1)(a)).
  43. In such cases the prosecution only needs to prove that the accused intended to steal "anything in the building". It does not need to prove:
  44. If the accused’s intention was to take property in circumstances not amounting to theft (e.g., because s/he believed that s/he had a legal claim of right), then this element will not be met. For more information about what amounts to theft, see Theft.

    Intention to assault a person

  45. The second way in which this element may be met is if the accused entered the building (or part of the building) with an intent to "commit an offence involving an assault upon a person in the building… which is punishable by imprisonment for a term of five years or more" (Crimes Act 1958 s76(1)(b)(i)).
  46. The definition of assault in s31(2) does not apply to burglary. It applies only to s31(1) and s40(1) of the Crimes Act 1958.
  47. The s76(1)(b)(i) formula most straightforwardly translates into an intention to commit the offence of common law assault. That offence is punishable by 5 years imprisonment (Crimes Act 1958 s320).
  48. The prosecution can therefore meet this element by proving that the accused entered the property:
  49. Numerous other offences against the person "involve an assault" in the sense that they involve actual touching, or causing physical injury, or threatened immediate application of force. If the prosecution relies upon an alternative offence then the charge will need to reflect the mental element of that offence. [3]
  50. If the accused’s intention was to engage in conduct that did not amount to an offence involving an assault (e.g., where consent is a defence to the relevant offence, and the accused believed the victim was consenting) then this element will not be met.
  51. Where the accused is alleged to have offended as part of a group, this element can be proved by showing either that the accused intended to commit an assault personally, or that the accused intended to assist or encourage another person in the group to commit an assault (R v Novakovic [2019] VSC 339, [365]-[382]).

    Intention to damage property

  52. The third way in which this element may be met is if the accused entered the building (or part of the building) with an intent to "commit an offence involving any damage to the building or to property in the building … which is punishable by imprisonment for a term of five years or more" (Crimes Act 1958 s76(1)(b)(ii)).
  53. The offences most commonly relied upon in this respect are the offences of arson or destroying or damaging property contrary to Crimes Act 1958 s197.
  54. See Criminal Damage for further information.

 

Notes

[1] This is the same physical act that is required for "trespass" at civil law, but the mental state required differs (see below) (Barker v R (1983) 153 CLR 338).

[2] For example, the prosecution could allege that the accused entered the building with an intention "to steal therein and / or to commit an assault to a person therein".

[3] The jury need only be charged on the elements of the secondary offence to the extent that they are relevant to the allegation that the accused intended to commit that offence.

 

Last updated: 17 February 2020

In This Section

7.5.4.1 - Charge: Burglary (Short)

7.5.4.2 - Charge: Burglary

7.5.4.3 - Checklist: Burglary

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.14 - Making or Using a False Document

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire