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7.5.5.6 - Checklist: Aggravated Burglary Where Person Present

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This checklist includes two possible third elements. Judges must omit or adapt this checklist depending on how the prosecution seeks to prove the third element.

Five elements the prosecution must prove beyond reasonable doubt:

  1. The accused entered [part of] a building; and
  2. The accused did so as a trespasser; and
  3. At the time of entry the accused intended to commit the offence of [theft/common assault/criminal damage etc.] within the [part of the] building; and
  4. At the time of entry a person was present in that [part of the] building.
  5. The accused knew that a person was present in that [part of the] building, or was reckless as to whether or not a person was present.

 

Entry into [part of] a building

1. Did the accused enter the [part of the] building?

If Yes, then go to 2

If No, then the accused is not guilty
of Burglary or Aggravated Burglary

Entry as a trespasser

2. Did the accused enter as a trespasser?

2.1 Did the accused have a right or authority to enter the [part of the] building?

If Yes, then go to 2.2

If No, then go to 2.3

2.2 Did the accused enter the [part of the] building in circumstances that were not permitted by his or her right or authority to enter?

Consider – Was the accused only permitted to enter for a specific purpose or in specific circumstances, and did he or she in fact enter for a different purpose, or in different circumstances?

If Yes, then go to 2.3

If No, then the accused is not guilty
of Burglary or Aggravated Burglary

2.3 Did the accused know or believe it was probable either that he or she had no right to enter the [part of the] building or that he or she was entering in circumstances that were not permitted by his or her right or authority to enter?

If Yes, then go to 3

If No, then the accused is not guilty
of Burglary or Aggravated Burglary

 

The Accused Intended to Steal

3. At the time of entry, did the accused intend to steal property from within the [part of the] building?

3.1 Did the accused intend to appropriate property that belonged to another person?

Consider - Did the accused intend to take something without the owner’s consent?

If Yes, then go to 3.2

If No, then the accused is not guilty
of Burglary or Aggravated Burglary

3.2 Did the accused intend to permanently deprive another person of that property?

If Yes, then go to 3.3

If No, then the accused is not guilty
of Burglary or Aggravated Burglary

3.3 Did the accused believe that s/he had a legal right to take the property?

If Yes, then the accused is not guilty
of Burglary or Aggravated Burglary

If No, then go to 4

 

 

The Accused Intended to Assault a Person Inside the Building

3. At the time of entry, did the accused intend to assault a person in the [part of the] building?

3.1 Did the accused intend to apply force to the body of a person in the building?

If Yes, then go to 3.3

If No, then go to 3.2

 

3.2 Did the accused intend to act in a way that would cause a person in the building to apprehend the immediate application of force to his or her body?

If Yes, then go to 3.3

If No, then the accused is not guilty
of Burglary or Aggravated Burglary

3.3 Did the accused have a lawful justification to act in this way?

If Yes, then the accused is not guilty
of Burglary or Aggravated Burglary

If No, then go to 4.

 

A Person was Present

4. Was a person present in the [part of the] building?

If Yes, then go to 5

If No, then the accused is not guilty of Aggravated Burglary,
but guilty of Burglary (as long as you answered yes to questions 1 to 3)

The Accused’s State of Mind

5. Did the accused have the necessary state of mind about the person’s presence?

5.1 Did the accused know that a person was present in the [part of the] building?

If Yes, then the accused is guilty of Aggravated Burglary (as long as you answered yes to questions 1 to 4)

If No, then go to 5.2

5.2 Was the accused reckless as to whether or not a person was present in the [part of the] building?

Consider – Did the accused believe it was probable that a person was present in the [part of the] building?

If Yes, then the accused is guilty of Aggravated Burglary (as long as you answered yes to questions 1 to 4)

If No, then the accused is not guilty of Aggravated Burglary,
but guilty of Burglary (as long as you answered yes to questions 1 to 3)

 

Last updated: 22 May 2009

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

7.5.5.7 - Charge: Aggravated Burglary - Combined Bases

7.5.5.8 - Checklist: Aggravated Burglary - Combined Bases