There are two ways that a defendant might successfully get out of a burglary charge:
- Showing that the prosecution has failed to prove all elements of the offence beyond a reasonable doubt. This might involve satisfying the Court that:
a. The accused did not enter the building or part of the building;
b. The accused did not trespass when entering the building; or
c. The accused did not intend to steal, commit an assault, or cause property damage when entering the building.
     2. Successfully running a relevant legal defence.
If you have been charged or are under investigation for burglary, please contact a specialist burglary lawyer so that you can discuss how to achieve the best possible outcome in your matter.
Please note that this article is not legal advice. It only presents general information.
The Offence of Burglary in Victoria
In Victoria, burglary is a serious indictable offence and carries a maximum penalty of 10 years imprisonment (s76 Crimes Act 1958).
In order to be found guilty of burglary, the prosecution must prove beyond a reasonable doubt that the accused:
- Entered a building (or part of a building, vehicle or vessel);Â
- Trespassed when they entered the building; and
- Intended to:
- Steal;
- Commit assault; or
- Commit property damage.
Aggravated burglary is a separate indictable offence in Victoria and carries a maximum penalty of 25 years imprisonment (s77 Crimes Act 1958). In order to be found guilty of aggravated burglary, the prosecution must prove beyond a reasonable doubt that the accused:
- Committed burglary; and
- Had a firearm (or imitation firearm), offensive weapon or an explosive (or imitation explosive); or
- Entered the building knowing or being reckless to the fact that a person was present in the building.
In burglary matters where the value of the property alleged to have been stolen is under $100,000, the case will likely be heard summarily in the Magistrates’ Court. Alternatively, if the value exceeds $100,000, the matter will likely be heard in the County Court or the Supreme Court of Victoria.
How Can I Defend a Burglary Charge?
To successfully get out of a burglary charge, the defendant might show that there is a reasonable doubt as to whether they:
- Entered the building (or part of a building, vehicle or vessel);
- Trespassed when entering the building; or
- Intended to:
- Steal;
- Assault a person in the building; or
- Commit property damage.
Element 1 – Did You Enter the Building?
In burglary matters, the prosecution is required to prove that the accused “entered the building”.
A “building” can include any structure, vehicle or vessel (Crimes Act 1958 s76(2)). It can also include part of a building, like an external structure (e.g. a verandah).Â
It is up to the jury or magistrate to decide if a structure qualifies as a “building”. It is also up to the jury or magistrate to decide if the accused “entered a building” (R v Cahill [1999] 2 VR 387).Â
If the accused has permission to enter certain parts of a building but is prohibited from entering other parts, they will be held to have “entered the building” if they access a prohibited area without authorization (Crimes Act 1958 s76(1)).
If the prosecution cannot prove that the accused entered the building, the accused must be found not guilty.
Element 2 – Did You Trespass?
In burglary matters, the prosecution is required to prove that the accused entered the building “as a trespasser”.Â
The accused will be considered a “trespasser” if they:
- Entered the building without the right or authority to enter; and
- Knew that they had no right or authority to enter; or
- Were reckless as to whether they had the right or authority to enter (Barker v R (1983) 153 CLR 338).
Right or Authority to Enter
If the accused had the right or authority to enter the building, they cannot be considered a trespasser and therefore must be found not guilty of burglary. There are various reasons in common law why a person might have the right, authority or licence to enter a building (Barker v R (1983) 153 CLR 338).Â
Limited Authority to Enter
If the accused only had limited authority to enter a building but stayed within the terms of that limited authority, they cannot be considered a trespasser and therefore must be found not guilty of burglary. Limited access means that the accused’s authority to enter a building was subject to:
- Time restrictions
- Place restrictions
- Restrictions upon the manner of entry
- Restrictions upon the purpose of entry (Barker v R (1983) 153 CLR 338).
Unlimited Authority to Enter
If the accused had unlimited authority to enter a building, it is unclear whether they could ever be considered a trespasser under Victorian or Federal law.Â
The High Court ruling in Barker v R (1983) suggests that just because the accused has an undisclosed intention to commit an offence, that does not automatically make them a trespasser if they have unlimited authority to enter the building (153 CLR 338).
Authority to Enter Revoked
If the accused has remained upon the property after having their authority revoked, they might not be considered a trespasser in criminal proceedings. However, the accused would be considered a trespasser if they make a “fresh entry” into the building after having their authority removed (Victoria v Second Comet Pty Ltd (Vic SC 21/12/1994).
Mental State of a Trespasser
To be considered a trespasser in a burglary offence, the accused must also have:
- Known that they had no right or authority to enter; or
- Been reckless as to whether they had any right or authority to enter (R v Taylor (2004) 10 VR 199).
Element 3 – Did You Intend to Steal, Commit Assault or Cause Property Damage?
In burglary matters, the prosecution is required to prove that the accused entered the building with an intention to commit one of the following offences:
- Steal anything in the building
- Assault a person in the building; or
- Commit property damage to the building or property.
If the accused did not intend to commit one of the above crimes at the time of entry, they must be found not guilty of burglary. That is, if they only formed the intention after entering the building, the accused is not guilty of burglary (R v Verde [2009] VSCA 16).
Stealing
If the accused intended to take property because they believed they had a legal claim of right to it, this does not amount to theft and therefore the accused must be found not guilty of burglary.Â
Assault
The accused must be found not guilty if the prosecution cannot prove that they entered the property with:
- The intention to apply force to the body of someone in the building; or
- The intention to cause someone in the building to fear the immediate application of force to their body.
Property Damage
If the prosecution cannot prove that the accused entered the building with an intention to commit criminal damage or arson, they must be found not guilty of burglary.
Is there a Legal Defence to Burglary?
Honest and Reasonable Mistake
The defence of Honest and Reasonable Mistake may be applicable in some burglary matters.Â
For example, the accused may be able to rely on the defence if they stole an item because they honestly and reasonably mistakenly believed they had a legal claim of right to it.
In Victoria, the accused may rely on the defence of honest and reasonable mistake if they prove the following three elements:
- The mistaken belief was honest (a subjective test);
- The mistaken belief was reasonable (an objective test); and
- The mistake was in regard to fact and not law.
Once the defence has been raised, the prosecution carries the burden of proving that the mistake wasn’t honest or reasonable. If the prosecution cannot disprove the defence, the accused must be found not guilty of the offence.Â
Consent
The defence of Consent may also be applicable in some burglary matters.Â
For example, consent may negate the third element when the defendant is accused of entering the building with an “intention to assault somebody”. If the accused can prove that they intended to engage in a consensual act with the victim, this does not qualify as an “intention to assault somebody” and therefore the defendant cannot be found guilty of burglary.
Burglary - Specialist Criminal Defence Lawyers in Melbourne, Victoria
If you have been charged or are under investigation for burglary, please contact our team at Sher Criminal Lawyers immediately. We are here to protect your legal interests and help you achieve the best possible outcome.
Our criminal defence lawyers specialise in burglary matters and frequently represent clients before the Magistrates Court of Victoria.
We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
