Break, enter and steal

Crimes Act 1900 (NSW), s 112

[5-100] Suggested direction

See also Larceny [5-750] and s 4 Crimes Act 1900.

The Crown must satisfy you beyond reasonable doubt that —

1. 

the accused broke and entered the premises described;

2. 

[those premises were a dwelling house/building]; and

3. 

having entered the premises, the accused stole … [specify the property].

“Broke” means “forcibly gained access”. It is not a “breaking” to walk through an open door.

“Entered” means what it says, that is, “went inside” … [or inserted some part of [his/her] body or some implement that [he/she] was holding].

A “dwelling house” is a house, flat or apartment where somebody dwells, that is to say, where somebody lives or resides. It may include a place that is designed for that purpose even when nobody is actually living in it at the time.

To “steal” somebody’s property means to “take it away, without consent and intending to deprive them of it permanently”.

It need not be shown that the accused actually removed the property from the premises but it must be shown that [he/she] moved it to some extent, and that when the accused did so [he/she] had the intention of stealing it.

Here it is alleged by the Crown that the accused … [state the offence alleged, for example, opened a locked window, went inside, took an ipod]. If the Crown proves beyond reasonable doubt that the accused did those things, then you should return a verdict of “guilty”.

[5-110] Notes

1. 

There is no definition of “breaking” in the Crimes Act. In Stanford v R (2007) 70 NSWLR 474, the court held that there is no “breaking” involved in further opening an already opened window: at [38]; see also R v Galea (1989) 46 A Crim R 158 at 161. However, to open a closed but unlocked door could amount to “breaking” for the purposes of s 112 Crimes Act 1900 since the definition of breaking includes pushing open a closed but secured door or opening a closed but unfastened window: DPP (NSW) v Trudgett (2013) 238 A Crim R 1 at [15]. Other acts which have been held to constitute a “breaking” at common law include the raising of a flap door: R v Russell (1833) 1 Mood 377; or lifting a latch or loosening any other fastening: R v Lackey [1954] Crim L R 57. There may be a constructive breaking where an accused gains entry by trick: R v Boyle (1954) 38 Cr App R 111 at 112.

2. 

For offences committed on or after 15 February 2008, following the commencement of the Crimes Amendment Act 2007, a new version of s 112 refers to “any dwelling-house or other building”, thereby extending the availability of the offence beyond the premises previously identified in s 112. A dwelling-house is defined in s 4(1) to include:

(a) 

any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,

(b) 

a boat or vehicle in or on which any person resides, and

(c) 

any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

A building is defined in s 105A(1) (for offences committed on or after 15 February 2008) simply to include “any place of Divine worship”.

3. 

For the purpose of establishing whether the accused knew a person was “in the place where the offence is alleged to have been committed” as a circumstance of aggravation in s 105A(1), it is sufficient that the accused knew a person was on the patio or in the confined grounds of the dwelling house: R v Rice (2004) 150 A Crim R 37 per Smart J at [62]–[63]; per Hodgson JA at [4]–[6]; cf Hulme J at [13].