7.5.1.5.9 - Jury Checklist: Aggravated Burglary (Combined Bases)[1]
Four elements the prosecution must prove beyond reasonable doubt:
- The accused entered [part of] a building; and
- The accused did so as a trespasser; and
- 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
- The accused was armed or the offence was aggravated by the presence of a person in the [part of the] building.
Entry into [part of] a building
1.Did the accusedenter 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
2Did the accused enter as a trespasser?
2.1Did 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
2.2Did the accused enter the [part of the] buildingin 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
2.3Did the accused know or believe it was probableeither 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
[3rd Element – where the prosecution alleges “intention to steal”]
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?
3.1Did 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
3.2Did 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
3.3Did the accused believe that s/he had a legal right to take the property?
If No, then go to 4
If Yes, then the accused is not guilty
of Burglary or Aggravated Burglary
[3rd Element – where the prosecution alleges “intention to assault”]
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?
3.1Did the accused intend to apply force to the body of a person in the building?
If No, then go to 3.2
If Yes, then go to 3.3
3.2Did 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
3.3Did the accused have a lawful justification to act in this way?
If No, then go to 4.
If Yes, then the accused is not guilty
of Burglary or Aggravated Burglary
The Accused Entered in Aggravating Circumstances
4.1Was the accused armed at the time of the entry?
4.1.1At the time of the entry, did the accused havea [firearm / imitation firearm / offensive weapon / explosive / imitation explosive] either on him/her or readily available for use?
If Yes, then go to 4.1.2
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)
4.1.2Was the item a [firearm / imitation firearm / offensive weapon / explosive / imitation explosive]?
If Yes, then go to 4.1.3
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)
4.1.3Did the accused have this item with him/her for the purpose of the burglary?
Consider – Did the accused intend to use the item for the purpose of [stealing property from / assaulting a person within] 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 3)
If No, then go to 4.2
4.2Was the offence aggravated by the presence of a person in the [part of the] building?
4.2.1Was a person present in the [part of the] building?
If Yes, then go to 4.2.2
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)
4.2.2Did 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 3)
If No, then go to 4.2.3
4.2.3Was the accused reckless as to whether or not a person was present in the [part ofthe] 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 3)
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)
[1] This document was last updated on 22 May 2009