What is classified as Break & Enter/ Theft?

The crime of Break, Enter and Steal is contained in Section 112 of the Crimes Act 1900. In order to secure a conviction, the Prosecution must prove the following:

  1. That the accused broke and entered the premises described;
  2. Those premises were a dwelling house or building; and
  3. Having entered the property the accused stole an item of property.

In relation to “break”, although there is no definition contained in the Crimes Act 1900, it has been determined that there is a requirement that the accused forcibly gains access. Therefore it is not breaking to walk through an open door. There is no “breaking” involved in further opening an open window (Standford v R (2007) 70 NSWLR 474), however opening a closed but not locked door would be sufficient to constitute breaking (DPP (NSW) v Trudgett (2013) 238 A Crim R 1).

If you have been charged with a break & enter / theft offence, the police must prove beyond a reasonable doubt that you did break into a house or other dwelling, you entered the property, and you committed the offence or intended to commit an offence.There are also general theft offences which do not have the requirement of break and enter. The crime of larceny is contained in Section 117 of the Crimes Act 1900. In order to secure a conviction, the Prosecution must prove the following elements beyond reasonable doubt:

  1. That the property belongs to someone other than the accused;
  2. That the property was taken and carried away; and
  3. The taking of the property was without the consent of its rightful owner.

In addition, the Prosecution would need to prove the following additional elements, which relate to the accused’s state of mind at the time of the taking:

  1. The property was taken with the intention of permanently depriving the owner of it;
  2. The property was taken without a claim of right made in good faith; and
  3. The property was taken dishonestly.

What can you do if you are accused of break & enter /theft?

There is a defence available of “claim of right”, which is available where you believed you were legally entitled to the property. In addition, duress and necessity may be available.

If you have been charged with a theft offence, it is important to obtain legal advice as soon as possible.

How can we help you?

The Criminal team at Coutts have the expertise to represent you in court. There are a number of options available if have been accused of Break and Enter and it is important to obtain independent legal advice before attending Court.