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Aggravated burglary (Section 232(2) Crimes Act 1961)

[Note: Because attempted burglary is an included charge to the crime of attempted aggravated burglary it may be necessary to inquire of counsel whether they wish the jury to also determine whether the defendant is guilty or not guilty of attempted burglary.]

Charge 1: Aggravated burglary under s 232(2) of the Crimes Act 1961

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1. Are you sure that Mr Smith intended to enter Ms Jones’ house at 232 Sevenoaks Road?
 

"Intended to enter" means that Mr Smith intended that some part of his body, or any part of an object used by Mr Smith, was to enter the building.

If no, find Mr Smith not guilty.

If yes, go to question two. 
2. Are you sure that, when Mr Smith intended to enter Ms Jones’ house, he did not have authority to enter?
 

[Note: Where there is an express challenge to authority, the question trail should include questions (i)–(iii) below.  If authority is not expressly challenged, questions (i)–(iii) do not need to be included, however the issue of authority still needs to be put to the jury].

To answer question two, ask yourself three questions:

(i)         What is the authority claimed by Mr Smith?

(ii)        What is the extent of that authority?

(iii)        Was the extent of that authority exceeded?

If no, find Mr Smith not guilty.

If yes, go to question three
3.

Are you sure that, when Mr Smith intended to enter Ms Jones’ house, he knew that he had no authority to enter her house or was reckless as to the absence of authority?
 

“Reckless” means that Mr Smith recognised there was a real possibility that he did not have authority to enter Ms Jones’ house and that, having regard to that possibility, Mr Smith’s actions in entering [or remaining in] the house were unreasonable.  “Unreasonable” actions are actions that a reasonable and prudent person would not have taken.

If no, find Mr Smith not guilty.

If yes, go to question four.
4.

Are you sure that, at the time Mr Smith intended to enter Ms Jones’ house, he intended to steal property from the house?
 

To steal means that Mr Smith:

(a)        intended to take some property from the house;

(b)        intended to take the property without believing Ms Jones (or anyone else entitled to give consent) consented or gave him authority to do so;

(c)        did not believe that taking the property would be lawful and that he had a right to take the property; and

(d)        intended that Ms Jones be permanently deprived of them. 

If no, find Mr Smith not guilty.

If yes, go to question five.
5. Are you sure that when Mr Smith intended to enter Ms Jones’ house and steal items from the house, he had a machete on him [or it was readily available for him to use]?
 

[Note: Where there is an issue as to whether the object in question constitutes a "weapon", this is likely to be an issue which the trial judge should hear argument on and determine.]

If no, find Mr Smith not guilty.

If yes, find Mr Smith guilty.

[Note: If the item is not a weapon per se then the jury should move onto the additional question 6.]
6.

Are you sure that Mr Smith intended to use the [other item] to inflict harm if he needed to?
 

If no, find Mr Smith not guilty.

If yes, find Mr Smith guilty.