Area of Law – Assaults / Violence Offences

An Article about Aggravated burglary

Burglary – Aggravated Burglary
Burglary is entering or remaining in a premises with an intention of committing an offence.

Aggravated burglary is most commonly charged for either entering a premises armed with a weapon, or being reckless as to whether someone is there at the time.

The issues that arise in proving a burglary also arise in aggravated burglary. The extra elements are the aggravations of the offence. So the entering or remaining in the premises with an intention of committing an offence has to be proved by the prosecution as a starting point. The possession of a weapon would also have to be proved if it was that type of aggravated burglary

We have contested and won many of these cases which often rely on disputed versions of what happenned at the premises. As with many criminal charges it is often possible to negotiate alternative charges to be heard or the police withdraw them if they prove to be unsupported by the evidence.

Below are some issues of law that arise in case law on aggravated burglary cases.

Question of licence to enter premises
“Furthermore, if the law is to be taken as correctly stated by Brennan and Deane, JJ. in Barker, that is, that a person with an unlimited permission to enter premises will not enter them as a trespasser merely because he or she enters with an intent to commit an unlawful act specified in s.76(1), then the jury was obliged to consider also the question whether the permission the applicant had to enter either the house or Krupa’s bedroom was limited by reference to purpose or intention.”

R v Taylor [2004] VSCA 189 (15 October 2004)

Shoplifter charged with burglary
This occurs occasionally that a shoplifter is charged with burglary. The person is generally wrongly charged but it can be proved in some circumstances.

A shoplifter who enters a shop with the purpose of stealing would not ordinarily be a trespasser.

Barker v Queen

R v Taylor [2004] VSCA 189 (15 October 2004) expounded the following:

“The count of burglary laid pursuant to s.76(1) of the Crimes Act 1958 required the prosecution to prove that the accused entered “any building or part of a building as a trespasser with intent” to commit any of the offences specified in sub-ss.(a) or (b) of s.76(1). This section was considered by the High Court in Barker v. The Queen, where the accused had been asked by his neighbour, Robert Curl, to look after his house while he was away. Curl told Barker where he kept his key in case the latter needed to enter. While Curl was away, Barker and another entered the house and stole certain items. The Court by majority found that Barker had entered Curl’s house as a trespasser because, as the headnote put it, he did so “for a purpose alien to the terms of a licence given to him to enter”. The Court’s decision is based on the clear assumption that Barker had only a limited permission to enter Curl’s house and that the jury, after being properly directed, were entitled to find the necessary mens rea, that Barker entered the house knowing that he had no right or authority to do so, or being reckless as to whether he had any such right or authority.

The judgments in Barker raise two questions relevant to the present case. First, although the basis of the majority judgments was the assumption that Barker entered Curl’s house only with a limited permission, there was considerable discussion of the question whether a person who enters property pursuant to a permission which is unlimited as to purpose or intent becomes a trespasser because that person at the time of entry had an illegal purpose; and secondly, the judgments all deal at some length with the mens rea necessary to establish that a person enters premises “as a trespasser”.

As to the first point the law remains unsettled. In R. v. Jones & Smith, Smith’s father had had two television sets stolen. The sets were found in the possession of Smith’s son and his friend Jones. The two had entered the house of Smith’s father and stolen both sets, and were prosecuted for burglary. At the trial Smith’s father gave evidence that he had given his son unrestricted permission to enter the house and that his son “would not be a trespasser in the house at any time”. Both Smith and Jones were nonetheless convicted of burglary. The Court of Appeal upheld these convictions, James, L.J. saying:

“a person is a trespasser for the purpose of s.9(1)(b) of the Theft Act 1958 if he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless as to whether he is entering in excess of the permission that has been given to him to enter. Provided the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission, then that is sufficient for the jury to decide that he is in fact a trespasser.”

There is vigorous controversy as to the correctness of this statement. It has been trenchantly criticised by Professor Glanville Williams as making the crime of burglary unnecessarily wide, being founded on a misunderstanding of previous authorities and being inconsistent with the rationale of s.9 of the Theft Act 1969 (U.K.). But on the other hand it has been supported by Sir John Smith

In Barker, Deane and Brennan, JJ. expressed the view that the implied invitation to enter which a shopkeeper extends to the public may ordinarily be limited to public areas of the shop and to hours when the shop is open for business, but is not ordinarily limited or confined by reference to purpose. Accordingly their Honours said that a shoplifter who enters a shop with the purpose of stealing would not ordinarily be a trespasser. Their Honours said:

“The argument that the phrase ‘as a trespasser’ would be denied any real effect if ‘trespasser’ in s.76(1) were given its common law meaning is likewise based on the assumption that, at common law, any person who enters premises in the possession of another with the purpose or intention of committing an unauthorised act therein will enter the premises as a trespasser. As has been said, that assumption is ill-founded. A person with a permission or licence to enter premises which is not limited by reference to purpose or intention will not enter them as a trespasser merely because he enters with an intent to commit one or other of the unlawful acts specified in s.76(1). In such a case, the requirement of entry as a trespasser and the requirement of entry with intent to commit one or other of the specified acts are distinct and substantive elements of the offence.”

Although their Honours did not expressly say so, it follows, we think, that their Honours must have regarded Jones & Smith as wrongly decided.

Mason, J. did not decide this point, although his Honour said that “The authority of the son to enter his father’s house might well have been regarded as so general that his entry for the purpose of theft did not make him a trespasser”. Murphy, J. dissented, saying that “an alien purpose does not convert an otherwise lawful entry into entry as a trespasser, irrespective of any expressed or implied limitation relating to purpose …”, which also clearly indicates a view that Jones & Smith was wrongly decided. Dawson, J. did not deal directly with the issue. In light of the Court’s assumption that Barker entered the premises only with a limited position, all the above-stated views must be regarded as obiter dicta.

The second question in Barker relevant to the issues in the present case concerned the nature of the intent necessary to establish that a person enters premises “as a trespasser”. The relevant mens rea was stated by Dawson, J. in the following terms:

“… in any analysis of s.76 of the Crimes Act it is essential to recognize that the offence consists both of an intentional entry as a trespasser and an intent to steal at the time of entry. The distinction must be maintained because a person accused of burglary may enter premises with an intention to steal but nevertheless in the belief that he is entitled to enter. A person who enters premises with apparent consent but with intent to steal, such as an ordinary shoplifter, is likely to believe at the time he enters the premises that he has the same right of entry as other persons notwithstanding the criminal purpose for which he enters. If intercepted before attempting to steal anything, no doubt he would say that he had done nothing wrong and was entitled to be on the premises. And if he believed that to be so, as he very well might, the mental element required to prove entry as a trespasser would be lacking, notwithstanding evidence of that other aspect of intent required for burglary, an intent to steal at the time of entry. Before there can be burglary there must be an entry as a trespasser with intent to enter as a trespasser as well as with intent to steal.”

Brennan and Deane, JJ. arrived at a like conclusion, although their language was somewhat different, saying:

“It follows that, even though a jury is satisfied that an accused’s entry upon land or into a building or into part of a building in the possession of another was trespassory because the accused did not have any permission to enter or because his permission was so limited that it did not cover the entry charged against him, he cannot be convicted unless the jury is satisfied also that he knew or was reckless as to the existence of the facts which made him a trespasser and that he did not enter in assertion of an honest claim of right to do so.”


Date: 09/01/2009