House, Safe and Conveyance Breaking Implements in Possession

[5-600] Introduction

The offences are created by s 114(1)(b) of the Crimes Act 1900. “Conveyance” is exclusively defined for the purposes of this provision in s 114(2).

The offence is proved where the Crown establishes beyond reasonable doubt that the accused had in his or her possession implements “capable” of being used for house breaking or such. It is not necessary for the Crown to prove that the accused had the implements in his or her possession for the “purpose” of house, safe or conveyance breaking, or with the intention of committing any specific offence of that kind: R v Ellemes (1974) 3 All ER 130; R v Reynolds (unrep, 22/08/86, NSWCCA) at 6, followed in R v Pierpoint (1993) 71 A Crim R 187 at 192. When, and if, the Crown has discharged the onus on it relating to possession and the nature of the implements, the burden of establishing lawful excuse for such possession is upon the appellant, on the balance of probabilities: Crimes Act 1900, s 417; R v Reynolds (unrep, 22/08/86, NSWCCA); Evidence Act 1995, s 141.

As to possession, see [3-700]. In R v Pierpoint (1993) 71 A Crim R 187 at 194, the following passage from R v Dib & Dib (1991) 52 A Crim R 64 at 66 was cited with apparent approval —

What must usually be conveyed to the jury in addition to the elements of knowledge … is that at the relevant time when possession is alleged an accused had (subject to any investigatory and seizure powers given to the police and others) the right to exclude any person not acting in concert with him from interference with the property in question. He must have that property either in his manual possession or in a place to which he (and any person acting in concert with him) may go without physical bar in order to obtain such manual possession of it.

As to whether the implement is “any implement of house breaking” (or safe breaking or any implement capable of being used to enter or drive or enter and drive a conveyance), any implement that is capable of being used as a house breaking or such implement from its common, though not exclusive, use or from the particular circumstances of the case in question, may be regarded as a house breaking implement: R v Patterson (1962) 2 QB 429 followed in R v Pierpoint (1993) 71 A Crim R 187 at 192.

R v Pierpoint (1993) 71 A Crim R 187 (at 192) is also authority for the proposition that although it is not incumbent upon the Crown to prove that it was the accused’s intention or purpose to use the implement for house breaking, evidence of his or her intent or purpose in having possession of the implement is relevant both to the issue of whether the instrument is a “house breaking implement” and also to the issue of lawful excuse.

[5-610] Suggested direction

[The accused] is charged with having in [his/her] possession, without lawful excuse, an implement of [house breaking/safe breaking/ or capable of being used to enter or drive a conveyance] … [describe the instrument]. In order to establish its case against the accused, the Crown must prove beyond reasonable doubt, firstly, that the accused had the implement in question in [his/her] possession and, secondly, that it was the type of implement alleged, that is to say, one capable of being used for [house breaking/safe breaking/conveyance breaking].

Once the Crown has established each of these matters to your satisfaction, beyond reasonable doubt, the onus passes to the accused, to show that [he/she] had a lawful excuse for possession of the implement in question at that time. It is important to note that the onus of proof resting on the accused to show that [he/she] had such a lawful excuse is not the more strict and onerous standard of beyond reasonable doubt imposed on the Crown, but the lesser standard of showing that more probably than not [he/she] had the implement in [his/her] possession for the purpose [he/she] claims … [identify the purpose].

Of course, if the Crown has not established one or other or both of the matters which the Crown must prove, then the question of whether the accused had a lawful excuse does not arise, because these are matters necessary for the Crown to establish if it is to prove its case. If it does not establish these matters, you would be bound to return a verdict of “not guilty” on this basis alone.

Of the matters which the Crown must prove, the first is as to possession. In order to establish that the accused had possession of the implement in question at the relevant time, the Crown must show that [he/she] knowingly had custody and control of the implement with the intention of exercising that custody and control to the exclusion of any other person … [If there is an issue of joint possession: who was not acting in concert with the accused] [he/she] must have that property either under [his/her] immediate physical custody and control … [If there is an issue of joint possession: or in a place to which [he/she/any person acting in concert] may go] without physical bar in order to obtain and assert that immediate physical custody and control of it.

As to the second of these two matters, namely, whether the Crown has satisfied you beyond reasonable doubt that the implement in question is indeed a [house breaking/safe breaking/conveyance breaking] implement, it will be such an implement in law if it is capable in fact of being used as a [house breaking/safe breaking/conveyance breaking] implement because it is commonly, although not exclusively, used as such … [and/or because of the particular circumstances in which it was in the accused’s possession in this case].

… [Deal with the relevant circumstances including the nature of the implement; when and where it was found; whether it was concealed etc; and with any other evidence relied upon by the Crown, and also any evidence relied upon by the accused on this issue, which may include the evidence that the accused relies upon in support of the issue of lawful excuse. Deal also with the opposing submissions].

It is not necessary for the Crown to show that the accused had the intention of using the implement for the purpose of any specific [house breaking/safe breaking/conveyance breaking] or generally for such a purpose. [Nevertheless, evidence relating to the intention or purpose for which the accused had the implement in [his/her] possession in the circumstances alleged by the Crown will be a factor which you may take into consideration in determining whether or not the Crown has established that the implement is of the nature alleged by the Crown].

Assuming that the Crown has established beyond reasonable doubt both of the essential matters which it must prove, then, and only then, does the onus shift to the accused to establish, on the balance of probabilities, that it is more likely than not that [he/she] had a lawful excuse for having this implement in [his/her] possession at that time and in those circumstances.

[The accused] claims … [set out the evidence of or relied on by the accused as amounting to a lawful excuse]. I direct you as a matter of law that if you come to the conclusion that what the accused claims is probably so, then [he/she] has made out [his/her] case and you will be bound to enter a verdict of “not guilty”.

If, on the other hand, you are not satisfied that what [he/she] claims is probably so, having already come to the conclusion beyond reasonable doubt that the Crown has established both matters which it must establish, it would be open to you, and you should, convict the accused.