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7.5.5.7 - Charge: Aggravated Burglary - Combined Bases

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[This charge should be used where the prosecution alleges both that the accused was armed with a firearm, imitation firearm, offensive weapon, explosive, or imitation explosive at the time of the burglary and that the accused burgled a building where a person was present.

If the prosecution relies on only one of these bases, use either Charge: Aggravated Burglary While Armed or Charge: Aggravated Burglary Where Person Present instead.]

 

The Elements

I must now direct you about the crime of aggravated burglary. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - the accused entered [part of] a building.

Two - the accused did so as a trespasser.

Three - when s/he entered the [part of the] building, the accused intended to commit the offence of [insert offence relied upon by the prosecution, e.g., "theft", "common assault", "criminal damage"].

Four - the accused entered the [part of the] building in aggravating circumstances.

I will now explain each of these elements in more detail. [1]

The accused entered a building or part of a building

The first element that the prosecution must prove is that the accused entered [part of] a building.

In this case the [part of the] building it is alleged that NOA entered is [identify relevant building or part of the building].

[If the "building" is an inhabited vehicle or vessel, add the following shaded section]

While you may not think that a [identify relevant class of vehicle or vessel, e.g. "caravan", "trailer", "houseboat"] is a "building", for the purposes of this offence a vehicle or vessel is treated as a "building" if it was inhabited at the time of the offence.

A vehicle or vessel will have been "inhabited" at the time of the offence if a person was living in it at that time. No-one needs to have actually been present in the vehicle or vessel at the time of the burglary. This requirement will be satisfied as long as someone was living there, even if they were out when the burglary took place.

[Summarise relevant evidence and/or arguments.]

It is for you to determine, based on all the evidence, whether NOA entered the [identify relevant building or part of the building]. It is only if you are satisfied, beyond reasonable doubt, that s/he did, that this first element will be met.

The accused entered as a trespasser

The second element that the prosecution must prove is that the accused entered the [part of the] building as a trespasser. For this element to be met, there are two things the prosecution must prove.

First, they must prove that NOA entered the [identify relevant building or part of the building] without any right or authority to enter. That is, that [part of the] building must have been "off-limits" to him/her.

[If it is alleged that the accused entered a prohibited part of a building, add the following shaded section]

It is important to note that, in this case, the prosecution did not allege that the entire building was "off-limits" to NOA. They accepted that s/he was authorised to enter certain parts of the building, such as the [identify authorised parts of the building]. However, they argued that NOA was forbidden from entering the [identify prohibited part of the building]. That is, s/he had no right or authority to be there.

[Summarise relevant evidence and/or arguments.]

It is for you to determine whether that part of the building really was "off-limits" to NOA. This part of the second element will only be satisfied if you find that it was.

[If it is alleged that the accused had limited authority to enter, but exceeded that authority, add the following shaded section]

In this case the prosecution did not deny that NOA had some authority to enter [identify building or relevant part of building]. However, they argued that s/he only had authority to enter [that part of] the building if s/he complied with certain conditions, such as [identify alleged conditions.]

The prosecution alleged that when NOA entered the [part of the] building s/he was not complying with these conditions, and so had no right or authority to enter. She was therefore trespassing.

[Summarise relevant evidence and/or arguments.]

It is for you to determine if NOA’s authority to enter [identify building or relevant part of building] was subject to any conditions. In making this determination you can consider everything that was said and done by the parties, and also the way that people generally conduct themselves. However, you cannot assume that certain conditions were imposed just because those limits would have been imposed if the issue had been raised. You must be satisfied that those conditions actually were imposed.

If you find that NOA’s authority to enter the [identify building or relevant part of building] was not subject to any conditions, then the second element will not be met. In such circumstances, the accused will have had unlimited authority to enter the [part of the] building, and so cannot have been trespassing, no matter what s/he intended to do. Even if s/he entered with some undesirable purpose in mind, s/he still had a right to enter.

If you find that NOA’s authority to enter was subject to certain conditions, you must then determine whether or not, when s/he entered the [part of the] building, s/he was complying with those conditions. If s/he was, then s/he will not have been trespassing. That is, s/he will have had a right or authority to enter that [part of the] building.

However, if s/he was not complying with those conditions, then s/he will have had no right or authority to enter the building, and this part of the second element will be met.

To summarise, this part of the second element will only be met if you are satisfied that NOA was only authorised to enter [identify building or relevant part of building] if s/he complied with certain conditions, and you find that s/he did not comply with those conditions when s/he entered. If you are not satisfied of either of these matters beyond reasonable doubt, then this element will not be met.

The second matter that the prosecution must prove for the second element to be met is that the accused either knew that s/he had no right or authority to enter [identify building or relevant part of building], or s/he believed that it was probable that she had no such right or authority.

For this part of the second element to be satisfied, it is not sufficient for NOA to have known that it was possible that she had no right or authority to enter the [part of the] building. S/he must have at least known that this was probably the case.

[Summarise relevant evidence and/or arguments.]

It is only if you are satisfied, beyond reasonable doubt, that NOA entered the [identify relevant building or part of the building] without any right or authority to enter, and that s/he knew that s/he had no right or authority to enter that [part of the] building, or at least knew that that was probably the case, that this second element will be met. If you are not satisfied about both of these matters, then you must find NOA not guilty of aggravated burglary.

The accused intended to commit an offence

The third element that the prosecution must prove is that, when s/he entered the [part of the] building, the accused intended to commit the offence of [insert offence relied upon by the prosecution, e.g., "theft", "common assault", "criminal damage"].

[Where the relevant offence is theft, add the following shaded section]

In order to do this, the prosecution must prove three things. [2]

First, they must prove that the accused intended to appropriate property that belonged to another person. In this case the word "appropriate" simply means to take something without the owner’s consent.

Secondly, the prosecution must prove that the accused intended to permanently deprive the owner of the property in question. That is, the accused must have intended that the owner would never get it back.

Thirdly, the prosecution must prove that when s/he entered the [part of the] building, the accused did not believe that s/he had a legal right to take the property in question.

[If further elaboration is necessary, include any relevant bullet points from the following list.]

[Summarise relevant evidence and/or arguments.]

[Where the relevant offence is common assault, add the following shaded section]

In order to do this the prosecution must prove two things. [3]

First, they must prove that the accused intended either to apply force to a person’s body, or to act in a way that would cause a person to apprehend the immediate application of force to his or her body. [4]

[If further elaboration is necessary, include any relevant directions from the following bullet list.]

Secondly, the prosecution must prove that the accused intended to act in this way in circumstances in which there was no lawful justification or excuse for his/her conduct.

[Possible forms of lawful justification or excuse include consent, self-defence, arrest, the lawful correction of children and ordinary social activity. For guidance on directions for these matters see Common Law Assault.]

[If no lawful justifications or excuses are open on the evidence, add the following darker shaded section]

In this case, it has not been suggested that there was a lawful justification or excuse for the accused’s alleged actions. You should therefore have no difficulty finding that, if NOA intended to [apply force to a person’s body / act in a way that would cause a person to apprehend the immediate application of force to his or her body], that was done without lawful justification or excuse.

[If any lawful justifications or excuses are open on the evidence, give appropriate directions incorporating reference to the evidence and arguments relevant to the justification or excuse, and concluding with the darker shaded section]

Remember, it is for the prosecution to prove, beyond reasonable doubt, that the accused’s behaviour was without lawful [justification/excuse]. The defence does not need to prove that NOA had such a [justification/excuse].

The accused must have had the relevant intention at the time s/he entered the [part of the] building. If you accept that it is reasonably possible that NOA only formed that intention after entering the [part of the] building, then this element will not be satisfied.

The accused entered in aggravating circumstances

The fourth element that the prosecution must prove is that the accused entered the [part of the] building in aggravating circumstances.

The prosecution can meet this element in two ways.

First, it may do this by proving that the accused had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her when s/he entered the [part of the] building.

Alternately, the prosecution can prove this element by proving that a person was present in the building at the time of the accused’s entry, and that the accused knew that a person was then present in that [part of the] building, or was reckless as to whether or not a person was then so present.

Need for unanimity

For this fourth element to be satisfied, you do not need to find that the prosecution have proved both these aggravating circumstances. It is sufficient if you find one of these matters proven beyond reasonable doubt.

However, all twelve of you must agree that the same aggravating circumstance has been proven. For example, you must all agree that NOA was "armed", in the sense I have outlined and will explain further. Or you must all agree that a person was present in the building and that NOA knew that this person was present, or was reckless as to whether or not a person was then so present.

If some of you find only the first circumstance proven, and others find only the second circumstance proven, then you will not have reached a unanimous verdict, as you are required to do. [5]

I will now explain these two aggravating circumstances in more detail.

The accused was armed

The first way that the prosecution can prove this fourth element is by proving that the accused had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her at the time of entering the [part of the] building.

For this element to be met in this way, there are three things that the prosecution must prove.

First, they must prove that, at the time of entering the [part of the] building, NOA had [identify item] either on him/her or readily available for use.

Secondly, the prosecution must prove that [identify item] falls within the category of [firearm / imitation firearm / offensive weapon / explosive / imitation explosive].

[Where there is a dispute about whether the article possessed was a firearm, add relevant parts of the following shaded section]

The law defines a "firearm" to be any device which is designed or adapted to discharge bullets or other missiles, either by the expansion of gases produced in the device by the ignition of strongly combustible materials, or by compressed air or other gases. The definition of "firearm" also includes anything which looks like such a device.

However, certain things are excluded from the definition of a "firearm". These include [identify relevant exception, eg, "underwater spear guns"].

To be a "firearm", the device does not need to be assembled, complete or operational. If it fits the definition I have just given you, it will be a "firearm", whether or not it actually works.

[Where it is alleged that the accused had an imitation firearm with him/her, add the following shaded section]

An "imitation firearm" is anything which has the appearance of being a firearm, whether or not it is capable of being shot.

[Where it is alleged that the accused had an offensive weapon with him/her, add the following shaded section]

The law defines two different kinds of items as "offensive weapons". First, an item is an offensive weapon if it is specifically made or adapted for the use of injuring or incapacitating a person. Secondly, an ordinarily inoffensive item that does not meet this criterion can also become an "offensive weapon" if the person carrying it intends or threatens to use it to injure or incapacitate a person.

If it is alleged that the relevant article was made for the use of injuring or incapacitating a person, add the following darker shaded section

In this case the prosecution argued that the [identify item] is an "offensive weapon" because it is made for injuring or incapacitating people. That is, it is an item that is normally used for this purpose.

If it is alleged that the relevant article was adapted for the use of injuring or incapacitating a person, add the following darker shaded section

In this case the prosecution argued that the [identify item] was an "offensive weapon" because it was adapted for the use of injuring or incapacitating people. That is, it was physically modified so that it could cause injury or incapacitate a person.

If it is alleged that an ordinary article became an offensive weapon because of the accused's use, threats or intention, add the following darker shaded section

In this case the prosecution argued that the [identify item] was an "offensive weapon" because NOA [used / threatened to use / intended to use] it for the purpose of injuring or incapacitating a person.

[Where it is alleged that the accused had an explosive with him/her, add the following shaded section]

An "explosive" is any item which is manufactured for the purpose of producing a practical effect by explosion, or which is intended to have that purpose. Any item that fits this definition will be an "explosive", whether or not it actually works.

[Where it is alleged that the accused had an imitation explosive with him/her, add the following shaded section]

An "imitation explosive" is any item which might reasonably be taken to be, or to contain, an explosive.

Thirdly, the prosecution must prove that the accused had the [identify item] with him/her for the purpose of the burglary. This will be the case if NOA had the [identify item] with him/her for the purpose of [stealing property from within the [part of the] building / assaulting a person within the [part of the] building / causing criminal damage within the building].

In determining this matter you should focus on NOA’s intention at the time s/he entered the [part of] the building. It does not matter what his/her intention was at the time s/he first handled the [identify item].

In this case the prosecution argued that all three of these requirements have been met. [Describe prosecution evidence and/or arguments.]

The defence [describe defence case [if any] in respect of this element, e.g.,

It is for you to determine, based on all the evidence, whether all three of these matters have been proven beyond reasonable doubt. It is only if you are satisfied that NOA had [identify item] with him/her at the time of the entry, that [identify item] was a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive], and that NOA had that item with him/her for the purposes of the burglary that this element will be met in this way.

A person was present

However, if you are not satisfied that this first aggravated circumstance has been proven, you should consider whether this element has been met in the alternative way that I will now explain.

For this element to be met in this second way, there are two things that the prosecution must prove.

First, they must prove that when the accused entered the [part of the] building a person was present in that [building / location]; and

Secondly, they must prove that at the time of that entry, the accused knew that a person was then present in that [part of the] building, or was reckless as to whether or not a person was then so present.

The law says that an accused will have been reckless in this way if s/he believed at the time of his/her entry, that another person was probably present in that [building / location].

It is not sufficient for the prosecution to prove that NOA believed that it was possible that a person was present. They must prove that s/he believed that this was probably the case.

In respect of this second matter, it is not sufficient for NOA to have known that it was possible that a person was present. S/he must have at least known that this was probably the case.

[Summarise relevant evidence and/or arguments.]

I remind you, for this fourth element to be met, the prosecution must prove that the accused entered the building in one of these aggravating circumstances.

You do not need to find that both of these matters have been proven. It is sufficient if you find one aggravating circumstance proven beyond reasonable doubt.

However, I want to emphasise again that, in order to reach a unanimous verdict, you must all agree that the same aggravating circumstance has been proven. It is not enough for some of you to find the element proven on the first basis, while others find it proven on the second basis.

Summary

To summarise, before you can find NOA guilty of aggravated burglary, the prosecution must prove to you, beyond reasonable doubt:

One – that NOA entered [part of] a building; and

Two – that NOA did so as a trespasser. That is:

Three – that at that time NOA intended to commit the offence of [insert offence relied upon by the prosecution, e.g., "theft", "common assault", "criminal damage"]; and

Four – NOA entered [part of the] building in aggravating circumstances. That is, at the time of his/her entry:

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of aggravated burglary.

Burglary

I must also direct you about the crime of burglary. This is an alternative to the crime of aggravated burglary. That means you only need to return a verdict on the crime of burglary if you were not satisfied that the prosecution have proved all the elements of aggravated burglary beyond reasonable doubt. If you decide that NOA is guilty of aggravated burglary, then you do not need to return a verdict on this alternative.

The offence of burglary is very similar to the offence of aggravated burglary, with one important difference: the prosecution does not need to prove that the accused entered the [part of the] building in aggravating circumstances.

In other words, if you are satisfied that the prosecution have proved the first three elements I just described beyond reasonable doubt, but are not satisfied that they have proved element four, then you should find the accused guilty of burglary. However, if you find that any of the first three elements have not been proved beyond reasonable doubt, then you must also find the accused not guilty of burglary.

 

Notes

[1] If an element is not in issue it should not be explained in full. Instead, the element should be explained briefly, and followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meet the element], and you should have no difficulty finding this element proven."

[2] This charge is designed for use in cases where this element raises only simple issues. If more complex issues arise, the charge should be expanded accordingly. Guidance can be obtained from Charge: Theft (Extended).

[3] This charge is designed for use in cases where this element raises only simple issues. If more complex issues arise, the charge should be expanded accordingly. Guidance can be obtained from Charge: Assault - Application of Force or Charge: Assault - No Application of Force.

[4] If the prosecution relies on only one basis of culpability, directions on the alternative basis should be omitted.

[5] This part of the charge assumes that the jury has been directed about the need for a unanimous verdict. If this has not occurred, the charge will need to be modified accordingly.

 

Last updated: 2 July 2020

See Also

7.5.5 - Aggravated Burglary

7.5.5.1 - Charge: Aggravated Burglary While Armed (Short)

7.5.5.2 - Charge: Aggravated Burglary While Armed

7.5.5.3 - Checklist: Aggravated Burglary While Armed

7.5.5.4 - Charge: Aggravated Burglary Where Person Present (Short)

7.5.5.5 - Charge: Aggravated Burglary Where Person Present

7.5.5.6 - Checklist: Aggravated Burglary Where Person Present

7.5.5.8 - Checklist: Aggravated Burglary - Combined Bases