Home | Databases | WorldLII | Search | Feedback | Help Criminal Law in Solomon Islands

Chapter 24: Break and Enter and Related Offences

Table Of Contents 

[24.0] Introduction

This chapter will examine specifically the offences of: 

·                     'Burglary', as provided for by section 299 of the Penal Code (Ch. 26); 

·                     'Housebreaking & Committing Felony', as provided for by section 300 of the Penal Code (Ch. 26); 

·                     'Housebreaking With Intent To Commit Felony', as provided for by section 301 of the Penal Code (Ch. 26); 

·                     'Sacrilege', as provided for by section 298 of the Penal Code (Ch. 26); and 

·                     'Being Found By Night Armed Or In Possession Of Housebreaking Implements', as provided for by section 302 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

In that regard reference should be made to the Larceny Act 1916 (UK), see Toritelia v R [1987] SILR 4. 

See also: John Solo v R (Unrep. Criminal Appeal Case No. 89 of 2000; Kabui J; at page 7). 

Section 170 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with any offence mentioned in Part XXXI ['Burglary, Housebreaking & Similar Offences'] of the Penal Code and the court is of the opinion that he is not guilty of that offence but that he is guilty of any other offence mentioned in the said Part, he may be convicted of that other offence although he was not charged with it.' [words in brackets added] 

In R v Kurasch (1937) 26 CrAppR 25 Finlay J, delivering the judgment of the Court, held at page 28: 

'Where a prisoner is charged with housebreaking, it is clearly relevant to give evidence of housebreaking implements having been found in his house, whether they were merely lying in the house, or in the possession of his wife, or in a bag belonging to a servant of his wife, or in a bag belonging to his wife. The mere discovery of the implements in the house would be admissible in evidence.' 

[24.1] Burglary

[24.1.1] Offences 

Section 299 of the Penal Code (Ch. 26) states: 

'Any person who in the night – 

(a)                breaks and enters the dwelling – house of another with intent to commit any felony therein; or 

(b)               breaks out of the dwelling – house of another having – 

(i) entered the said dwelling – house with intent to commit any felony therein; or 

(ii) committed any felony in the said dwelling – house, 

is guilty of the felony called burglary, and shall be liable to imprisonment for life.' (emphasis added)

[24.1.2] Wording Of Charges 

Section 299(a) 

'[Name of Defendant] at [Place] on [Date] in the night did break and enter the dwelling-house of a person namely [specify the name/s of the occupier/s] with intent to commit a felony therein to wit [specify the felony].' 

Section 299(b)(i) 

'[Name of Defendant] at [Place] on [Date] in the night did break out of the dwelling-house of a person namely [specify the name/s of the occupier/s] having entered the said dwelling-house with intent to commit a felony therein to wit [specify the felony].'

Section 299(b)(ii) 

'[Name of Defendant] at [Place] on [Date] in the night did break out of the dwelling-house of a person namely [specify the name/s of the occupier/s] having committed a felony therein to wit [specify the felony] in the said dwelling-house.' 

In R v Calos Galofia (Unrep. Criminal Review Case No. 1293 of 1991) Muria J stated at page 1: 

'I refer to my Review Judgments in Criminal Case No. 1245/91 given on 10 January 1992 and Criminal Case No. 1167/91 given on 13 January 1992 in which I said that a count alleging that the accused "broke and entered ….. with intent to steal and did steal therein ….." is bad for duplicity. It is clear that the charge against the accused is bad for duplicity.' 

Such a charge is bad for 'duplicity' because it alleges two separate offences, ie., 'break and enter with intent' under section 299(a) of the Penal Code (Ch. 26) and 'break and enter and commit' under section 300(a) of the Penal Code (Ch. 26). 

The law relating to 'Duplicity' is examined commencing on page 86.

[24.1.3] Elements 

Section 299(a) 

A. Defendant 

B. Place 

C. Date 

D. Night 

E. Break & Enter 

F. Dwelling – House 

G. Intent To Commit A Felony Therein 

Section 299(b)(i) 

A. Defendant 

B. Place 

C. Date 

D. Night 

E. Breaks Out 

F. Dwelling - House 

G. Having Entered The Said Dwelling – House With Intent To Commit A Felony Therein

Section 299(b)(ii) 

A. Defendant 

B. Place 

C. Date 

D. Night 

E. Breaks Out 

F. Dwelling - House 

G. Having Committed A Felony In The Said Dwelling – House

[24.2] Housebreaking & Committing Felony

[24.2.1] Offences 

Section 300 of the Penal Code (Ch. 26) states: 

'Any person who – 

(a)                breaks and enters any dwelling – house, or any building within the curtilage thereof and occupied therewith, or any school – house, shop, warehouse, counting – house, office, store, garage, pavilion, factory or workshop, or any building belonging to Her Majesty, or to the Government, or to any Town Council, local government council or other public authority, and commits any felony therein; or 

(b)               breaks out of the same, having committed any felony therein, 

is guilty of a felony, and shall be liable to imprisonment for fourteen years.'

[24.2.2] Wording Of Charges 

Section 300(a) 

'[Name of Defendant] at [Place] on [Date] did break and enter 

·                     [a dwelling-house or a building within the curtilage thereof and occupied therewith a dwelling – house] of a person namely [specify the occupier/s of the dwelling – house]; or 

·                     [a school-house to wit [specify the name of the school] or (a shop, a warehouse, a counting-house, an office, a store, a garage, a pavilion, a factory or a workshop)] the property of [specify the name of the owner]; or 

·                     a building the property of [Her Majesty, the Government, a Town Council, the local government council or the (specify other public authority)] 

and did commit a felony therein to wit [specify the felony].'

Section 300(b) 

'[Name of Defendant] at [Place] on [Date] did break out of 

·                     [a dwelling-house or a building within the curtilage thereof and occupied therewith a dwelling – house] of a person namely [specify the occupier/s of the dwelling – house]; or 

·                     [a school-house to wit [specify the name of the school] or (a shop, a warehouse, a counting-house, an office, a store, a garage, a pavilion, a factory or a workshop)] the property of [specify the name of the owner]; or 

·                     a building the property of [Her Majesty, the Government, a Town Council, the local government council or the (specify other public authority)] 

having committed a felony therein to wit [specify the felony].'

[24.2.3] Elements 

Section 300(a) 

A. Defendant 

B. Place 

C. Date 

D. Break & Enter 

E.         [i] Dwelling – House; 

[ii] Building Within The Curtilage Thereof & Occupied Therewith A Dwelling – House; 

[iii] School – House; 

[iv] Shop; 

[v] Warehouse; 

[vi] Counting – House; 

[vii] Office; 

[viii] Store; 

[ix] Garage; 

[x] Pavilion; 

[xi] Factory; 

[xii] Workshop; or 

[xiii] Building The Property Of 

[1] Her Majesty; 

[2] the Government; 

[3] a Town Council; 

[4] the local government council; or 

[5] other public authority 

F. Commit Felony Therein

Section 300(b) 

A. Defendant 

B. Place 

C. Date 

D. Break Out Of 

E.         [i] Dwelling – House; 

[ii] Building Within The Curtilage Thereof & Occupied Therewith A Dwelling – House; 

[iii] School – House; 

[iv] Shop; 

[v] Warehouse; 

[vi] Counting – House; 

[vii] Office; 

[viii] Store; 

[ix] Garage; 

[x] Pavilion; 

[xi] Factory; 

[xii] Workshop; or 

[xiii] Building The Property Of 

[1] Her Majesty; 

[2] the Government; 

[3] a Town Council; 

[4] the local government council; or 

[5] other public authority 

F. Having Committed A Felony

[24.3] Housebreaking With Intent To Commit Felony

[24.3.1] Offences 

Section 301 of the Penal Code (Ch. 26) states: 

'Any person who, with intent to commit any felony therein – 

(a)                enters any dwelling – house in the night; or 

(b)               breaks and enters any dwelling – house, place of divine worship or any building within the curtilage, or any school – house, shop, warehouse, counting – house, office, store, garage, pavilion, factory or workshop, or any building belonging to Her Majesty, or to the Government, or to any Town Council, local government council or other public authority, 

is guilty of a felony, and shall be liable to imprisonment for seven years.'

[24.3.2] Wording Of Charges 

Section 301(a) 

'[Name of Defendant] at [Place] on [Date] did with intent to commit a felony therein enter a dwelling-house of a person namely [specify the name/s of the occupier/s] in the night.' 

Section 301(b) 

'[Name of Defendant] at [Place] on [Date] with intent to commit a felony therein did break and enter 

·                     [a dwelling-house of a person namely (specify the name/s of the occupier/s) or a building within the curtilage of a dwelling-house of (specify the name of the occupier/s)]; or 

·                     [a place of divine worship to wit (specify the name of the owner) belonging to (specify the name of the owner) or a building within the curtilage of a place of divine worship to wit (specify the name of the owner) the property of (specify the name of the owner)]; or 

·                     [a school-house, a shop, a warehouse, a counting-house, an office, a store, a garage, a pavilion, a factory or a workshop] the property of [specify the name of the owner]; or 

·                     a building the property of [Her Majesty, the Government, a Town Council, the local government council or the (specify other public authority)].'

[24.3.3] Elements 

Section 301(a) 

A. Defendant 

B. Place 

C. Date 

D. Intent To Commit A Felony Therein 

E. Enter 

F. Dwelling - House 

G. Night 

Section 301(b) 

A. Defendant 

B. Place 

C. Date 

D. Intent To Commit A Felony Therein 

E. Break & Enter 

F.         [i] Dwelling – house; 

[ii] Place Of Devine Worship; 

[iii] Building Within The Curtilage Of A Dwelling – house; 

[iv] Building Within The Curtilage Of A Place Of Devine Worship 

[v] School – House; 

[vi] Shop; 

[vii] Warehouse; 

[viii] Counting – House; 

[ix] Office; 

[x] Store; 

[xi] Garage; 

[xii] Pavilion; 

[xiii] Factory; 

[xiv] Workshop; or 

[xv] Building The Property Of 

[1] Her Majesty; 

[2] the Government; 

[3] a Town Council; 

[4] the local government council; or 

[5] other public authority

[24.4] Sacrilege

[24.4.1] Offences 

Section 298 of the Penal Code (Ch. 26) states: 

'Any person who – 

(a)                breaks and enters any place of divine worship and commits any felony therein; or 

(b)               breaks out of any place of divine worship having committed any felony therein, 

is guilty of the felony called sacrilege, and shall be liable to imprisonment for fourteen years.'

[24.4.2] Wording Of Charges 

Section 298(a) 

'[Name of Defendant] at [Place] on [Date] did break and enter a place of divine worship namely [specify the name of place of divine worship] and commit a felony therein to wit [specify the felony].' 

Section 298(b) 

'[Name of Defendant] at [Place] on [Date] did break out of a place of divine worship namely [specify the name of place of divine worship] having committed a felony therein to wit [specify the felony].' 

[24.4.3] Elements 

Section 298(a) 

A. Defendant 

B. Place 

C. Date 

D. Break & Enter 

E. Place Of Devine Worship 

F. Commit A Felony Therein

Section 298(b) 

A. Defendant 

B. Place 

C. Date 

D. Breaks Out 

E. Place Of Devine Worship 

F. Having Committed A Felony Therein

[25.5] Being Found by Night Armed Or In Possession Of Housebreaking Implements

[25.5.1] Offences

Section 302 of the Penal Code (Ch. 26) states: 

'Any person who is found by night – 

(a)                armed with any dangerous or offensive weapon or instrument, with intent to break or enter into any building and to commit any felony therein; or 

(b)               having in his possession without lawful excuse (the proof whereof shall lie on such person) any key, picklock, crow, jack, bit or other implement of house – breaking; or 

(c)                having his face masked or disguised with intent to commit any felony; or 

(d)               in any building with intent to commit any felony therein, 

is guilty of a misdemeanour, and shall be liable – 

(i)                 if he has been previously convicted of any such misdemeanour or of any felony, to imprisonment for ten years; and

(ii) in all other cases to imprisonment for five years.'

[25.5.2] Wording Of Charges 

Section 302(a) 

'[Name of Defendant] at [Place] on [Date] was found by night armed with [(a dangerous or an offensive) (weapon or instrument)] to wit a [specify the (weapon or instrument)] with intent to [break or enter] into a building and to commit a felony therein.'

Section 302(b) 

'[Name of Defendant] at [Place] on [Date] was found by night having in (his/her) possession without lawful excuse a [key, picklock, crow, jack, bit or (specify other implement of house-breaking)].' 

Section 300(c) 

'[Name of Defendant] at [Place] on [Date] was found by night having (his/her) face [masked or disguised] with intent to commit a felony.'

Section 302(d) 

'[Name of Defendant] at [Place] on [Date] was found by night in a building the property of [specify the name of the owner] with intent to commit a felony.'

Circumstance of Aggravation 

Include the following 'circumstance of aggravation' in appropriate cases: 

·                     and the said [insert the name of the defendant] has been previously convicted of a [misdemeanour or felony] to wit [specify the (misdemeanour or felony)] at the [specify the name of the Court] on [specify the date]. 

The law relating to 'Proving A Previous Conviction' is examined commencing on page 305.

[24.5.3] Elements 

Section 302(a) 

A. Defendant 

B. Place 

C. Date 

D. Found 

E. Night 

F. Armed 

[i] Dangerous Weapon; 

[ii] Dangerous Instrument; 

[iii] Offensive Weapon; or 

[iv] Offensive Instrument 

G. Intent To 

[i] Break; or 

[ii] Enter 

H. Building 

I. Commit A Felony Therein

Section 302(b) 

A. Defendant 

B. Place 

C. Date

 D. Found 

E. Night 

F. Possession 

G. Without Lawful Excuse

H.        [i] Key; 

[ii] Picklock; 

[iii] Crow; 

[iv] Jack; 

[v] Bit; or 

[vi] Other Implement Of House - breaking

Section 300(c) 

A. Defendant 

B. Place 

C. Date 

D. Found 

E. Night 

F. Face 

[i] Masked; or 

[ii] Disguised 

G. Intent To Commit A Felony

Section 302(d) 

A. Defendant 

B. Place 

C. Date 

D. Found 

E. Night 

F. In A Building 

G. With Intent To Commit A Felony

[24.6] Criminal Trespass 

[24.6.1] Offences 

Section 189 of the Penal Code (Ch. 26) states: 

'(1) Any person who – 

(a)                enters into or upon property in the possession of another with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property; 

(b)               having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit any offence; or 

(c)                unlawfully persists in coming or remaining upon such property after being warned not to come thereon or to depart therefrom,

is guilty of a misdemeanour, and shall be liable to imprisonment for three months. 

If the property upon which the offence is committed is any building, tent or vessel used as a human dwelling, or any building used as a place of worship, or as a place for the custody of property, the offender shall be liable to imprisonment for one year. 

(2) Any person who enters by night any dwelling – house, or any verandah or passage attached thereto, or any yard, garden or other land adjacent to or within the curtilage of such dwelling – house, without lawful excuse, is guilty of a misdemeanour, and shall be liable to imprisonment for one year.'

[24.6.2] Wording Of Charges 

Section 189(1) 

(a) '[Name of Defendant] at [Place] on [Date] did enter [into or upon] property to wit [specify the property] in the possession of a person namely [specify the name of this person] with intent to [commit an offence or (intimidate or annoy) a person namely (specify the name of this person)] lawfully in possession of the said property.' 

(b) '[Name of Defendant] at [Place] on [Date] having lawfully entered [into or upon] property to wit [specify the property] in the possession of a person namely [specify the name of this person] did unlawfully remain there with intent [thereby to (intimidate, insult or annoy) (the said person or [specify the name of this person]) or to commit an offence].' 

(c) '[Name of Defendant] at [Place] on [Date] did unlawfully persist in [coming or remaining] upon property to wit [specify the property] in the possession of a person namely [specify the name of this person] after being warned [not to come thereon or to depart therefrom] the said property.' 

Include the following 'circumstances of aggravation' in appropriate cases: 

·                     and the said [building, tent or vessel] was being used as a human dwelling by the said [specify the name of the person/s in possession of the property]; 

·                     and the said building was used as a place of worship; or 

·                     and the said place was being used for the custody of property.

Section 189(2) 

'[Name of Defendant] at [Place] on [Date] did without lawful excuse enter by night 

·                     the dwelling-house of a person namely [specify the name of this person]'; or 

·                     the [verandah or passage] attached to the dwelling – house of a person namely [specify the name of this person]'; or 

·                     the [yard, garden or (specify any other land)] [adjacent to or within] the curtilage of the dwelling – house of a person namely [specify the name of this person]'.

[24.6.3] Elements 

Section 189(1)(a) 

A. Defendant 

B. Place 

C. Date 

D. Enter 

[i] Into; or 

[ii] Upon 

E. Property 

F. Possession Of Complainant 

G. Intent To 

[i] Commit An Offence; or 

[ii]        [I] Intimidate; or 

[2] Annoy 

Person Lawfully In Possession Of The Said Property

Section 189(1)(b) 

A. Defendant 

B. Place 

C. Date 

D. Lawfully 

E. Enter 

[i] Into; or 

[ii] Upon 

F. Property

G. Possession Of Complainant 

H. Unlawfully 

I. Remain 

J. Intent To 

[i] Commit An Offence; or 

ii]         [I] Intimidate; 

[2] Insult; or 

[3] Annoy 

Person Lawfully In Possession Of The Said Property

Section 189(1)(c) 

A. Defendant 

B. Place 

C. Date 

D. Unlawfully 

E. Persist In 

[i] Coming; or 

[ii] Remaining Upon 

F. Property 

G. Possession Of Complainant 

H. After Being Warned 

[i] Not To Come Thereon; or 

[ii] To Depart Therefrom Property

Section 189(2) 

A. Defendant 

B. Place 

C. Date 

D. Without Lawful Excuse 

E. Enter 

F. Night 

G.        [i] Dwelling-house Of Complainant; 

[ii]        [1] Verandah; or 

[2] Passage 

Attached To The Dwelling – house Of Complainant; or 

[iii]       [1] Yard; 

[2] Garden; or 

[3] Land 

[A] Adjacent To; or 

[B] Within 

 Curtilage Of The Dwelling – house Of Complainant

[24.7] Dates Of Offences 

The date of 'break and enter' offences should be carefully examined, like any other offence. Particular notice should be given to 'break and enter' offences which occur during a period which complainants are away, if it is unknown on which day the offence occurred. Under such circumstances the wording of the charge should commence with the following words: 

'That on a date unknown between …' 

The law relating to the 'Dates Of Offences' is examined commencing on page 85.

[24.8] Night

 The term 'Night' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'the interval between half – past six o'clock in the evening and half – past six o'clock in the morning.'

[24.9] Break & Enter 

Section 297 of the Penal Code (Ch. 26) states: 

'A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting or any other means whatever, any door, window, shutter, cellar flap or other thing intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building. 

A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building. 

A person who obtains entrance into a building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not ordinarily used as a means of entrance, is deemed to have broken and entered the building.' (emphasis added) 

In John Solo v R (Unrep. Criminal Appeal Case No. 89 of 2000) Kabui J stated at page 7: 

'The element of "breaking" in burglary is stated thus on page 656 of Archbold, Criminal Pleading Evidence & Practice, Thirty – Sixth Edition, 1966 by T.R. Fitzwalter Butler and Marston Garsia; "To constitute burglary, there must be a breaking of the house, either actual or constructive. If a man leaves his doors or window open, and another enters therein with intent to commit a felony, it is no burglary: 1 Hale 551; 3 Co. Inst. 64. So if there is an aperture in a cellar window to admit light, through which a thief enters in the night, this not burglary: R v Lewis, 2 C & P 628; R v Spriggs and Hancock, 1 M & Rob 357. 

Again at page 657, the learned authors state "An actual breaking is, where the offender for the purpose of getting admission for any part of his body or for a weapon or other instrument, in order to effect his felonious intention, breaks a hole in a wall of a house, breaks a door or window, picks the lock of a door, or opens it with a key, or even by lifting a latch, or unlooses any other fastening to doors or windows which the owner has provided: …' (emphasis added) 

In Luke Misitana v R (Unrep. Criminal Appeal Case No. 7 of 1996) Muria CJ stated at pages 3 – 4: 

'It must be noted that under the section 290 definition [now section 297], it is sufficient to constitute "breaking" any part of a building if a person pulls or pushes any door of a building which is closed. Through his counsel, the appellant agreed the door was closed, though as he said was not locked, and that he only opened the door by pushing it. The door was closed which was intended to close entry into the sacricity room. The appellant gained entry (which was not denied) by pushing the door open. That however, must clearly satisfy the definition of "breaking" the building as defined in section 290.' (emphasis added) [words in brackets added] 

In R v Boyle (1954) 38 CrAppR 111 [[1954] 2 QB 292; [1954] 2 AllER 721; [1954] 3 WLR 364] Lord Goddard CJ stated at pages 112 – 113: 

'[T]he law cannot be better stated than it is stated in the present 33rd edition of Archbold's Criminal Pleading etc at p.669: "A constructive breaking is where the offender, with intent to commit a felony, obtains admission by some artifice, trick or threat, for the purpose of effecting it." In other words, if the householder, had she known the true facts, would not have admitted the prisoner, and the prisoner has obtained admission by means of a trick or a threat, that is in law a constructive breaking. Take the very common case where a man represents himself as calling from a gas company or an electric light company. If he is a man from the company who comes into the house for the proper purpose and steals when he is in the house, that is not breaking and entering; that is larceny in a dwelling – house, because he has not used a trick to get into the house. He has come in the ordinary course of his duty, representing (as he is in fact) that he is an employee of the company whose duty it is to read the meter. If he has come in to read the meter and then steals in the house, the offence is larceny in the dwelling – house and not breaking and entering.' (emphasis added) 

See also: R v Chandler [1911- 13] AllER Rep 428; [1913] 1 KB 125; (1913) 8 CrAppR 428. 

If the prosecution cannot prove a 'break' then other charges should be considered such as 'Larceny', section 261 of the Penal Code (Ch. 26), see R v Calrose Pilly (Unrep. Criminal Review Case No. 74 of 2001; Kabui J). 

The law relating to the offence of 'Larceny' is examined commencing on page 460.

[24.10] Dwelling - house

[24.10.1] Definition 

The term 'Dwelling - house' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling – house is deemed to be part of the dwelling – house.' 

A motel unit occupies for a week was held to be a dwelling – house, see R v Halloran & Reynolds [1967] QWN 34.

[24.10.2] Criminal Trespass 

In Lanemua v R (Unrep. Criminal Case No. 27 of 1992) Palmer J stated at pages 2 – 3: 

'Subsection (2) [of section 189 of the Penal Code (Ch. 26)] does not say that the dwelling house must be occupied by the owner at the time of commission of the offence. 

An owner may be on leave, and so leave his house vacant or he may have his relations or friends occupying the house and looking after it whilst he is away. The fact that a stranger or a person comes into the dwelling – house in such circumstances can amount to an offence if the element of 'lawful excuse' is lacking. 

It is not a necessary requirement of the subsection that it must be established that the woman and the 2 children were the owners of the house. Rather, the question that needs to be asked is, were they lawfully there? If yes, then anyone else who enters that house without lawful excuse is a trespasser. It is not necessary to establish that the occupants were owners. […] 

[…] 

For the purposes of criminal trespass, it is important that there is evidence which identifies either who the owner is or who was in lawful possession of the house. The relationship of the complainant to the house as owner or occupier is therefore important.' (emphasis added) [words in brackets added] 

[24.11] Store 

The term 'Store' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would mean a place where a retail business is carried on, either by actual sales or by exposure of goods for sale, see City Motors (1933) Pty Ltd v Tuting [1964] TasSR 194 at page 198 & Plummer & Adams v Needam (1954) 56 WALR 1 at page 10.

[24.12] Warehouse 

The term 'Warehouse' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would mean a place whose 'predominant and indeed the sole, purpose [is] the exposure of goods for sale by wholesale and the storage of large stocks so that buyers may take immediate delivery of the full amount of their purchases. These, in ordinary usage, are the characteristics of a "warehouse" in one of its forms, see A G Campbell (Properties) Ltd v Parramatta City Council [1961] NSWLR 542, per Sugerman J at page 543.

[24.13] Counting - house 

The term 'Counting - house' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would mean 'a part of a house which is devoted to the purposes of commercial business. It never has been suggested that it must be an entire house', see Piercy v Maclean (1870) LR5CP 252, per Willes J at page 261.

[24.14] Garage 

The term 'Garage' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section was discussed by Atkinson J in Barnett & Block v National Parcels Insurance Co Ltd [1942] 1 AllER 221 at page 223: 

'Now what is a garage? No evidence was given to suggest or prove the word "garage" in the trade had got any special meaning, and it was agreed to take the four dictionary definitions set out in the agreed statement of facts. The four definitions were these. From the Shorter Oxford Dictionary: "A building for sheltering, cleaning or refitting motor vehicles". From the New Century Dictionary: "A building for sheltering, cleaning or repairing motor vehicles. To put or keep in a garage." From the New Standard Dictionary: "A building for stabling or storing of motor vehicles of all kinds". From Nuttal's Standard Dictionary: "A storehouse for motor vehicle." Those are four definitions from leading dictionaries all containing at any rate on word in common, and this is "building".' (emphasis added)

[24.15] Pavilion 

The term 'Pavilion' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include a building for the housing of exhibitions and a building beside a playing field.

[24.16] Factory 

The term 'Factory' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would mean 'a building or place in which goods are manufactured or made', see O'Sullivan v Arriola [1951] SASR 108, per Napier J at page 110.

[24.17] Workshop 

The term 'Workshop' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include building and rooms used for the manufacturing of products or fixing of machinery.

[24.18] Building 

The term 'Building' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section was discussed by Jacobs J in Hilderbrandt v Stephen [1964] NSWLR 740 at page 742: 

'It is true to say that the word is defined in the Shorter Oxford Dictionary as a structure or edifice, but I do not think that it can thereby be suggested that every structure is a building, although obviously every building is a structure. The second word in the definition, namely, "edifice", refers, of course, to a large or formal building and every building is not edifice. I do not think that a single word as a synonym for the word "building" is available in the language, and it is necessary therefore to regard the word in terms of the concept. To me the ordinary concept is, as I have said, a structure of which the main feature is probably the existence of some form of roof.' (emphasis added)

[24.19] Place Of Devine Worship 

The term 'Place Of Devine Worship' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include a church or other places of devine worship.

[24.20] Felony 

The term 'Felony' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with imprisonment for three years or more.'

[24.21] Offence 

The term 'Offence' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'an act, attempt or omission punishable by law'.

[24.22] Without Lawful Excuse 

The onus is on the defendant to show on the 'balance of probabilities' that he/she had a 'lawful excuse' for entering as specified in section 189(2) of the Penal Code (Ch. 26). 

Refer also to the chapter which examines 'Proof Of Issues' commencing on page 68 and particularly the section titled 'Negative Averments' commencing on page 83.

[24.23] Armed 

The term 'Armed' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In R v Jones (1987) 85 CrAppR 259 [[1987] 2 AllER 692; [1987] 1 WLR 692] Tucker J, delivering the judgment of the Court of Appeal, held at page 266: 

'The expression "armed" is an ordinary English word. Normally, it will involve either physically carrying arms, or it will involve proof that, to his knowledge, a defendant knows that they are immediately available. In our judgment, it is not necessary to prove an intent to use those arms if the situation should require it, though clearly if a defendant does use them, or has used them, then that is an obvious indication that he is armed.' (emphasis added) 

See also: Rowe v Conti; Threlfall v Panzera [1958] VR 547; [1958] ALR 1038.

[24.24] Dangerous Or Offensive Weapon Or Instrument 

The terms 'Dangerous Or Offensive Weapon Or Instrument' are not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include 'a weapon or instrument made or adapted or intended for causing injury to human being', see Sinaje v Balmer [1965] 2 AllER 248. A 'firearm' would be classed as a 'dangerous weapon', whereas a large knife may be classed as a 'dangerous instrument'.

[24.25] Intent 

Intention which is a state of mind, can never be proved as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions.

If there are no admissions, to be found guilty of the offences as outlined in sections 189, 301 & 302 of the Penal Code (Ch. 26), 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to commit the offence in question', see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

As regards the 'intent to steal', it is irrelevant that there was nothing to steal, see R v Walkington [1979] 2 AllER 716; [1979] 1 WLR 1169; (1979) 68 CrAppR 427; [1979] CrimLR 526. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

[24.26] Found In Possession Of Instrument Of House breaking

[24.26.1] Introduction 

Section 302 of the Penal Code (Ch. 26) states ( in part): 

'Any person who is found by night – 

[…] 

(b) having in his possession without lawful excuse (the proof whereof shall lie on such person) any key, picklock, crow, jack, bit or other implement of house – breaking;' (emphasis added) 

In R v Harris (1924) 18 CrAppR 157 Lord Hewart CJ, delivering the judgment of the Court, held at page 159: 

'To prove the offence with which the appellant was charged [ie., 'Possession of Housebreaking Implements By Night'], it must be shown that he was found by night in possession by night of housebreaking implements. […] On the true construction of this section the finding and the possession must both be by night and the possession must be the possession by a free man.' [words in brackets added]

[24.26.2] Possession 

The term 'Possession' is defined in section 4 of the Penal Code (Ch. 26) as follows: 

'(a) "be in possession of" or "have in possession" includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person; 

(b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.' (emphasis added) 

To prove 'possession' the prosecution must prove 'knowledge' and 'control'. 

In Director of Public Prosecutions v Brooks [1974] AC 862; [1974] 59 CrAppR 185 [[1974] 2 AllER 840; [1974] 2 WLR 899; [1974] CrimLR 364] Lord Diplock stated at pages 866 & 187 respectively: 

'In the ordinary use of the word "possession", one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's own physical control.' 

In R v Boyesen [1982] AC 768; (1982) 75 CrAppR 51 [[1982] 2 AllER 161; [1982] 2 WLR 882; [1981] CrimLR 596] Lord Scarman stated at pages 773 – 774 & 53 – 54 respectively: 

'Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature: but you do not possess it unless you know you have it.' (emphasis added) 

A person does not have 'knowledge' of property if he/she: 

·                     does not know where the property was; and 

·                     was not in position to find out. 

When two men are found in association for the common purpose of house – breaking, the possession of one instrument is capable of being used for house – breaking is in possession of both, see R v Martin [1965] NZLR 228. When house – breaking instruments are found in a car or in the physical possession of one defendant, the prosecution must be able to prove that both persons were acting together for a common purpose. That inference will not be lightly inferred, see R v Edmonds [1963] 2 QB 142 [[1963] 2 WLR 715; [1963] 1 AllER 828; (1963) 47 CrAppR 114] at pages 149 – 150; R v Harris [1961] CrimLR 256 & R v Allingham & Bandy [1954] NZLR 1123. The best possible evidence are admissions by each defendant in relation to the purpose the instruments or implements were to be used. 

The law relating to 'Parties To Offences' is examined commencing on page 406. 

See also: R v Cugullere [1961] 2 AllER 843; [1961] 1 WLR 858; (1961) 45 CrAppR 108; R v Cavendish [1961] 2 AllER 856; [1961] 1 WLR 1083; (1961) 45 CrAppR 374; R v Lewis (1910) 4 CrAppR 96 at page 100; Warner v Metropolitan Police Commissioner (1968) 52 CrAppR 373; [1969] 2 AC 256; [1969] 2 AllER 356; [1968] 2 WLR 1303; R v Holland [1974] PNGLR 7 at page 19; R v Iona Griffin [1974] PNGLR 72 at page 75; R v Angie – Ogun [1969 – 70] P&NGLR 36; Wanganeed (1988) 38 ACrimR 187 & Dayman v Newsome; Ex parte Dayman [1973] QdR 399.

[24.26.3] Other Implement Of House - breaking 

In R v Patterson (1961) 46 CrAppR 106 [[1962] 2 QB 429; [1962] 1 AllER 340] Lord Parker CJ, delivering the judgment of the Court, stated at page 110: 

'It seems to this court that those words [, referring to the words "or other implement of housebreaking',] mean no more than any other implement capable of being used for housebreaking.' [words in brackets added] 

In R v Brown (1968) 52 CrAppR 70 Lord Parker CJ, delivering the judgment of the Court, held at page 73: 

'This court is quite clear that an implement can be a housebreaking – implement although its purpose is not to effect the actual breaking; so long as it is capable of being used and is commonly used for facilitating the breaking and entering, it is sufficient.' 

In that case a torch was held to be an implement of house – breaking. 

See also: R v Hodges (1957) 41 CrAppR 218.

[24.26.4] Without Lawful Excuse 

In R v Patterson (1961) 46 CrAppR 106 [[1962] 2 QB 429; [1962] 1 AllER 340] Lord Parker CJ, delivering the judgment of the Court, stated at page 112: 

'It seems to the court that in the first instance the prosecution must prove that the prisoner was found in possession by night of either an implement which can properly be described as one of those specifically named in the section, or of an implement capable in fact of being used as a housebreaking implement from its common, though not exclusive, use for the purpose or from the particular circumstances of the case in question. Once possession of such an implement has been shown, the burden shifts on to the prisoner to prove, on the balance of probabilities, that there was lawful excuse for his possession of the implement at the time and place in question.' (emphasis added) 

Refer also to the chapter which examines 'Proof Of Issues' commencing on page 68 and particularly the section titled 'Negative Averments' commencing on page 83.

[24.27] Found In 

Section 302 of the Penal Code (Ch. 26) states (in part): 

'Any person who is found by night – 

[…] 

(e)                in any building with intent to commit any felony therein,' (emphasis added) 

In R v Lumsden (1951) 35 CrAppR 57 Cassels J, delivering the judgment of the Court, stated at page 60: 

'If "found in" means what it says, it does not necessarily mean that the person charged must be caught in or apprehended in, or that the finder should also be in the building as well, but it does mean, and can only be taken to mean, that, if a person is to be convicted of an offence against this section, there must be clear and unmistakable evidence that he has been, as the section says, found in the building.' (emphasis added) 

Therefore, the defendant must be found inside the building. 

See also: R v Parkin (1949) 34 CrAppR 1 at page 3.

[24.28] Doctrine Of Recent Possession 

In R v Loughlin (1951) 35 CrAppR 69 Lord Goddard CJ, delivering the judgment of the Court, held at page 71: 

'If it is proved that premises have been broken into, and that certain property has been stolen from those premises, and that very shortly afterwards a man is found in possession of that property, that is certainly evidence from which the jury can infer that he is the housebreaker or shopbreaker and; if he is, it is inconsistent to find him guilty of receiving, because a man cannot receive from himself. That is what is so often done. It is perfectly good evidence of the prisoner being the housebreaker that he is found in possession of property stolen from a house quite soon after the breaking.' 

In R v Bailey (1917) 13 CrAppR 27 Avory J, delivering the judgment of the Court, stated at page 30: 

'It is true that in some cases where the housebreaking takes place one day and the property stolen is found in the possession of the prisoner on the following day, it is open to the jury to infer that he broke into the premises; but not where he is not found in possession until three or four weeks later; it may, however, be evidence that he was guilty of receiving the goods knowing them to have been stolen.' 

See also: R v Seymour [1954] 1 AllER 1006; [1954] 1 WLR 678; (1954) 38 CrAppR 68. 

The law relating to the 'Doctrine of Recent Possession' is also examined commencing on page 477.

[24.29] Jurisdiction 

The jurisdiction of the courts in respect of the offences as specified in this Chapter is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of the offences as specified in this Chapter is examined commencing on page 918. 

In respect of stolen property a Court should direct that the property be restored to the person from whom it was taken, see section 104(3) of the Criminal Procedure Code (Ch. 7).

[24.30] Related Offences 

The following are related offences as provided for in the Penal Code (Ch. 26): 

[i] 'Forcible Entry', section 85 of the Penal Code (Ch. 26); 

[ii] 'Forcible Detainer', section 86 of the Penal Code (Ch. 26); and 

[iii] 'Larceny', section 261 of the Penal Code (Ch. 26) which is examined commencing on page 460.