Frequently Asked Questions

Q: Who is a tresspasser in relation to the offence of burglary?

One of the more interesting aspects of the notion of a trespasser in relation to burglary, is that a person who is given permission to enter into a property, but steals once inside while also holding the intention to steal, may be considered as a trespasser (per Barker v The Queen (1983) 153 CLR 338; 47 ALR 1. It should also be emphasised that criminal intent must also exist as an element of burglary as was held in Galea v The Queen (1989) 1 WAR 450; 46 A Crim R 158.

Further guidance can be found in the judgment of Street CJ in R v Dugan [1984] 2 NSWLR 554 (CA) where his Honour said at 562:

“Its ingredients, as the section states, for presently relevant purposes, are first entering a building, and secondly, with intent to commit a felony in the building... the actus reus is the act of entry. The mens rea is the intent to commit robbery in the building. The coincidence in point of time of these two ingredients is what is encompassed within the Act.”


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