7.5.1.5.6 - Charge: Aggravated Burglary Where Person Present(Short)[1]
[This charge may be used where it is alleged that the accused burgled a building where a person was present.
This abbreviated charge should only be used where the soledefencerelied upon by the accused, or raised by the evidence, is that the accused was not the offender.[2]]
The Elements
I must now direct you about the crime of aggravated burglary. To prove this crime, the prosecution must prove the following 5 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 - whenthe accused entered the [part of the] buildinga person was present in that [building /location].
Five - when s/he entered the [part of the] building 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.
Facts in Issue
In this case the defence did not contest the evidence that someone [summarise evidence of aggravated burglary]. They agreed that you should be satisfied these events occurred, and that the person who was responsible for them is guilty of aggravated burglary.[3]However, they denied that NOA was the person who acted in that way.[4]
Consequently, the only issue for your consideration [on this count] is whether or not the prosecution have proven, beyond reasonable doubt, that NOA was the person who [describe alleged conduct]. If you are satisfied that it was NOA who did those acts, you should have no difficulty finding all five elements of this offence to have been proven.
The evidence was [describe evidence relevant to identification]. Counsel argued [describe arguments relevant to identification].
[If not done elsewhere, include directions and warnings about identification evidence. See Bench Notesand Charges: Identification Evidence for assistance].
Summary
To summarise, you have only one issue to decide in respect of this count. That issue is, have the prosecution proven beyond reasonable doubt that NOA was the person who [describe alleged conduct].
If you are satisfied that they have, then you should have no difficulty finding all the elements of this offence proven. In such circumstances you should find NOA guilty of aggravated burglary.
However, if you are not satisfied beyond reasonable doubt that it was NOA who [describe alleged conduct], you must find him/her not guilty of aggravated burglary.
[1] This document was last updated on 13 February 2013.
[2] Abbreviated charges should normally be discussed with counsel before being used. Caution should be exercised before using this charge over the objection of counsel.
[3] If this concession has not been made, care should be taken before abbreviating the charge in this way.
[4]This charge will need to be adapted if it is alleged that the accused was guilty on the basis of some form of accessorial liability. See Part 5: Complicity.