Break, enter and commit serious indictable offence
Crimes Act 1900 (NSW), s 112
[5-5100] Suggested direction
The suggested direction has been designed to fit the most commonly found offence of break, enter and steal but can be adapted for other serious indictable offences.
See also Larceny [5-6100] and s 4 Crimes Act 1900.
The Crown must satisfy you beyond reasonable doubt that —
the accused broke and entered the premises described;
[those premises were a dwelling house/building]; and
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].
[Where applicable: The accused says [he/she] had a right to enter the premises because [state the reason from the defence case]. A person who has lawful authority to enter the premises, such as by being a leaseholder, will not be guilty of “breaking and entering”, even if they use force to gain entry. The Crown must prove beyond reasonable doubt the accused had no lawful authority to enter the premises.]
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”.
There is no definition of “breaking” in the Crimes Act 1900. 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 ; 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 since the definition of breaking includes pushing open a closed but secured door or opening a closed but unfastened window: DPP (NSW) v Trudgett  NSWSC 1607 at . 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  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.
Ghamrawi v R (2017) 95 NSWLR 405 includes an extensive survey of the history of the concept of “breaking” at common law. Leeming JA, applying Stanford v R, held at – that the term “break” in s 112 had the same meaning it had at common law and accordingly that there can be an “actual” and a “constructive” breaking. On the facts of the case at hand, his Honour held that there is no actual breaking if the person has express or implied permission to enter through a closed, but unlocked, door, even if they had felonious intent at the time they entered. In Singh v R  NSWCCA 110, Payne JA held that knocking on a door of a house with intent to rob its occupants and, upon the door being opened, rushing into the house constituted a “constructive breaking”.
Break and enter offences under s 112 Crimes Act require a trespass to be established, that is, entry to premises of another without lawful authority: BA v The King  HCA 14 at , , . A person who has a right to occupy premises, such as under an existing rental agreement, has lawful authority to enter, including by using force that would otherwise constitute a “break”. This will be the case notwithstanding the person no longer physically occupies the premises or the current occupant (even if they are a joint tenant) does not consent to the person’s entry. There will be no offence under s 112 in such circumstances, even if the person’s intention in entering the premises is for a non-residential purpose: BA v The King at .
From 15 February 2008, s 112 Crimes Act refers to “any dwelling-house or other building”, whereas previously it referred to a list of specifically nominated buildings. A dwelling-house is defined in s 4(1) to include:
any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,
a boat or vehicle in or on which any person resides, and
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) to include “any place of Divine worship”.
The “serious indictable offence” must be committed inside the dwelling house. In Nassr v R  NSWCCA 284, a person entered the victim’s home intending to steal but was interrupted. He assaulted the victim outside the house as he attempted to flee. The court held at – that “dwelling-house” as defined in s 4(1) does not include the front or side yard of the property on which the relevant house, building or structure is erected.
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  NSWCCA 384 per Smart J at –; per Hodgson JA at –; cf Hulme J at .