7.5.1.5.4 - Charge: Aggravated Burglary (Combined Bases)[1]

[This charge should be used where the prosecution allegesboththat 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 [partof]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.[2]

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.

[Ifit 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 youto 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.

[Ifit 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 authorityto 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.

Warning! Judges should seek submissions from parties on whether Aubrey v R [2017] HCA 18 at [45] - [47] has any relevance to the formulation of directions on recklessness.

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 wasprobably 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.[3]

First, they must prove that the accused intended toappropriate 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 thatthe 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.]

  • 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 building.
  • 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] building, 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.[4]

First, they must prove that the accused intended either to apply force to a person’s body, orto act in a way that would cause a person toapprehend the immediate application of force to his or her body.[5]

[If further elaboration is necessary, include any relevant directions from the following bullet 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 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 apprehend 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 the Bench Notes and Charges: 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 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 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].

[Where the relevant offence is criminal damage, add the following shaded section.]

Note to users: this section will be completed when the Criminal Damage Charge and Bench Notes have been finalised.

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 elementthat 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.[6]

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.]