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7.5.6.1 - Charge: Home Invasion (While Armed)

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The Elements

I must now direct you about the crime of home invasion. To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:

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

Two – s/he did so as a trespasser.

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

Four – the accused entered the home in company with one or more other people;

Five - the accused had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her when s/he entered the [part of the] home.

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

The accused entered a home or part of a home

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

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

[If the "home" 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 "home", for the purposes of this offence a vehicle or vessel is treated as a "home" if it was intended for occupation and used as a residence.

A vehicle or vessel will have been used as a residence 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 home invasion. This requirement will be satisfied as long as someone was living there, even if they were out when the alleged home invasion took place.

[Summarise relevant evidence and/or arguments.]

The accused entered as a trespasser

The second element that the prosecution must prove is that the accused entered the [part of the] home 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 home or part of the home] without any right or authority to enter. That is, that [part of the] home must have been "off-limits" to him/her.

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

It is important to note that, in this case, the prosecution did not allege that the entire home was "off-limits" to NOA. They accepted that s/he was authorised to enter certain parts of the home, such as the [identify authorised parts of the home]. However, they argued that NOA was forbidden from entering the [identify prohibited part of the home]. 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 home 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 home or relevant part of home]. However, they argued that s/he only had authority to enter [that part of] the home if s/he complied with certain conditions, such as [identify alleged conditions.]

The prosecution alleged that when NOA entered the [part of the] home 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 home or relevant part of home] was subject to any conditions. In making this decision 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 home or relevant part of the home] 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] home, 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] home, 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] home.

However, if s/he was not complying with those conditions, then s/he will have had no right or authority to enter the home, 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 home or relevant part of home] 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 home or relevant part of home], 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] home. 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 home or part of the home] 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] home, or at least knew that that was probably the case, that this second element will be met.

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] home, the accused intended to commit the offence of [insert offence relied upon by the prosecution, e.g., "theft", "common assault"].

[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 take property that belonged to another person 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] home, 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.]

- The prosecution does not need to prove that any property was in fact stolen. They only need to prove that the accused intended to steal.

- The prosecution does not need to prove that the accused intended to steal any particular property. They only need to prove that s/he intended to steal property of some kind from inside the home.

- This element will be met if the prosecution can prove that, although the accused did not know what s/he would find in the [part of the] home, s/he intended to steal anything of value that s/he might come across.

[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 think that force would immediately be applied to his or her body.[4]

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

[For application of force cases] It does not matter how much force the accused intended to apply. Nor does it matter whether or not that force would have harmed the person. An intention to merely touch someone is enough.

[For application of force cases] It does not matter whether s/he would have actually been able to apply the force. It is sufficient for the accused to have intended to apply force.

[For apprehension of force cases] S/he does not need to have intended to actually apply such force. The accused only needs to have intended to cause someone to believe that force would be applied.

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 text.]

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 think that force would immediately be applied 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 text.

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] home. If you accept that it is reasonably possible that NOA only formed that intention after entering the [part of the] home, then this element will not be satisfied.

Entry in company

Warning! This element has not been considered by Victorian courts. Judges should seek submissions before directing the jury about this element.

The fourth element the prosecution must prove is that the accused entered the home "in company" with one or more other people.

In this case, the prosecution says that NOA entered the home "in company" with [identify those said to be in company[5]].

To prove this element, the prosecution must prove three matters.

One – NOA must have had a "common purpose" with [identify those said to be in company] to commit the home invasion.

This means that s/he must have agreed with [identify those said to be in company] to commit the home invasion.[6]

The second matter is that [at least one of] [identify those said to be in company] must have been physically present at the home invasion.

This means that [at least one of] [identify those said to be in company] must have entered the [part of the] home with NOA. It would not be enough that the other people stood outside as lookouts, or getaway drivers.

The third matter is that [identify those said to be in company] must have been able to contribute to the offending, by encouraging NOA or intimidating anyone else in the [part of the] home.[7]

[Refer to relevant evidence and arguments]

The accused was armed

The fifth element that the prosecution must prove is 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] home.

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

First, they must prove that, at the time of entering the [part of the] home, 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 fired.

[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 home invasion. 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] home / assaulting a person within the [part of the] home].

In determining this matter you should focus on NOA’s intention at the time s/he entered the [part of] the home. 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 home invasion that this element will be met.

Summary

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

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

Four – that NOA entered the home in company with at least one other person; and

Five – that NOA had a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] with him/her at the time of the entry. That is:

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

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] - Where the other offenders cannot be identified, the names of the co-offenders should be replaced with a statement such as “three other people who have not been identified”.

[6] - Where the scope of the agreement is in issue, this direction may be modified. See Charge: Statutory Complicity (Agreement, Arrangement or Understanding) for guidance.

[7] - In cases where any victim of the offence is not aware of the additional people, the discussion of this third requirement must be modified. See Home Invasion for guidance.

Last updated: 2 July 2020

See Also

7.5.6 – Home Invasion

7.5.6.2 – Checklist: Home Invasion (While Armed)

7.5.6.3 - Charge: Home Invasion (Person Present)

7.5.6.4 – Checklist: Home Invasion (Person Present)