Introduction

If you fancy yourself a handyman, you know that some tools used for housework can just as easily be used to break into a house. The courts recognise this, and carefully regulate implements that could be used in this way. In New South Wales, the offence of possessing house breaking implements is a serious legal matter under the Crimes Act 1900 (NSW). This offence involves having items that could be used to break into a house or vehicle without a lawful excuse. Understanding this offence is crucial for individuals who may unknowingly possess such items, as it can lead to significant legal consequences, including imprisonment.

This guide provides a comprehensive overview of the offence, including the elements the police must prove, available defences, and court procedures. It is designed to help individuals understand their rights and the legal processes involved, emphasising the importance of seeking legal advice when charged with this offence.

Defining House Breaking Implements in NSW

What Items Qualify as House Breaking Implements

Under section 114(1)(b) of the Crimes Act 1900 (NSW), it is an offence to possess items capable of being used to unlawfully enter a house, safe, or vehicle without a lawful excuse. A wide range of tools and devices fall into this category if they could facilitate unauthorised entry. Examples include:

• Crow bars: commonly used for prying open doors or windows.
• Screwdrivers: used to remove door handles or tamper with locks.
• Wrenches and pliers: capable of breaking or disabling locking mechanisms.
• Wire hangers: readily straightened and shaped into improvised lock-picking tools.
• Signal jamming devices: interfere with car locking systems, preventing remote locks from working.

The key factor is the item’s potential to assist in unauthorised entry, regardless of its intended purpose.

Legitimate Reasons for Possession in Employment & Commercial Use

Possession of these implements is lawful when there is a legitimate reason—typically employment or commercial activities. For example:

• Construction workers may carry crow bars for demolition or prying tasks.
• Electricians routinely use screwdrivers as part of their trade.
• Locksmiths legitimately possess specialised tools that might otherwise qualify as house breaking implements.

In each case, the context and purpose of possession determine whether an item is classified as a house breaking implement, provided it is used for its proper professional function.

Proving the Offence and What the Police Must Prove

Elements the Police Must Prove for the Offence

To secure a conviction for possessing housebreaking implements in NSW, the police must prove specific legal elements beyond a reasonable doubt under the Crimes Act 1900 (NSW). These elements are crucial for establishing guilt. The prosecution must demonstrate the following key elements:

1. Possession of the Item
   The accused must have had physical possession or control of the implement. This could mean the item was found on their person, in their vehicle, or in a place under their control.
2. Capability to Break into a House or Vehicle
   The implement must be capable of being used to break into a house, safe, or vehicle. Examples include tools like crowbars, screwdrivers, or pliers that can force open doors or windows.
3. Absence of a Lawful Excuse
   The accused must not have a legitimate reason for possessing the item. Lawful excuses might include using the tool for employment, home renovations, or other lawful purposes.

If any of these elements cannot be proven beyond a reasonable doubt, the charge may be dismissed.

The Burden of Proof and Evidence Presented by Police

The burden of proof lies entirely with the prosecution. They must present sufficient evidence to convincingly demonstrate each element of the offence. Such evidence may include:

• Physical Evidence
  The actual implement itself, examined for its potential use in breaking and entering.
• Witness Testimony
  Statements from witnesses who may have seen the implement in use or in the accused’s possession.
• Expert Testimony
  Specialists might testify on the implement’s capability to breach security.
• Circumstantial Evidence
  Factors such as the time and place the implement were found, suggesting intent.

Importantly, the prosecution does not need to prove that the accused intended to use the implement for breaking and entering. It is sufficient to show they possessed an item capable of such use without a lawful excuse.

By understanding these elements, individuals can better grasp the legal standards involved and the importance of seeking legal advice if charged with this offence.

Available Defences for Possessing House Breaking Implements

Arguing Lack of Possession or Control

A person charged with possessing house-breaking implements can challenge the prosecution by arguing they did not have actual possession or control over the item. This defence is especially relevant when the implement was discovered in a shared space, such as:

• A residence occupied by multiple individuals
• A vehicle used by more than one person

For example, if a crowbar is found in a car shared by several colleagues, the accused could contend they were not the sole possessor and therefore should not be held liable.

Claiming a Lawful Excuse for Possession Including Office & Commercial Purposes

One of the strongest defences is to demonstrate a lawful excuse for possession—namely, that the implement was required for legitimate activities. To succeed, the accused must provide evidence showing the tool was used for:

• Employment-related tasks (e.g., a tradesperson carrying screwdrivers or crowbars)
• Commercial purposes
• Emergency response activities

For instance, a maintenance worker who carries a set of lock-picking tools as part of routine building repairs can argue the possession was directly tied to their job duties.

Defences Based on Duress or Necessity

Under certain circumstances, the accused may rely on duress or necessity to justify possession:

• Duress: The implement was possessed because the accused was threatened with harm or coercion, leaving no reasonable alternative.
• Necessity: The possession was required to avert a greater harm—for example, breaking into a property to rescue someone in imminent danger.

Both defences demand clear evidence of the compelling situation that forced the accused to hold the implement.

Court Process and Penalties for the Offence in NSW

Comparing Local Court & District Court Sentencing

As a table one offence in New South Wales, possessing housebreaking implements can be heard in either the Local Court or the District Court, depending on its severity. The court process typically involves the prosecution presenting evidence to establish the offence beyond a reasonable doubt, while the defence may challenge the charges or present mitigating factors.

The sentencing options differ significantly between the two courts:

• Local Court: Handles less serious cases and can impose a maximum penalty of two years’ imprisonment. It focuses on summary offences and may offer more lenient options, such as fines or good behaviour bonds.
• District Court: Deals with more serious matters and can impose a maximum penalty of seven years’ imprisonment. This court also has a broader range of orders—including intensive correction orders or full-time imprisonment—especially for repeat offenders or cases involving aggravating factors.

Moreover, the choice of court depends on the prosecution’s election or the accused’s request, considering the offence’s severity and the defendant’s prior record.

Typical Penalties & Outcomes for the Offence

The penalties for possessing housebreaking implements vary according to the circumstances of each case. Sentencing decisions are influenced by factors such as:

• The seriousness of the offence
• The defendant’s criminal history
• The presence of any aggravating or mitigating factors

Common outcomes include:

• Fines: A monetary penalty, often reserved for less serious offences.
• Good Behaviour Bonds: A court order requiring the defendant to be of good behaviour for a specified period.
• Community Service Orders: Unpaid work performed for the benefit of the community.
• Suspended Sentences: A prison term that is suspended provided certain conditions are met.
• Imprisonment: Typically reserved for the most serious cases, particularly those heard in the District Court.

In practice, actual sentences are often lower than the maximum penalties—especially for first-time offenders or those who plead guilty early and show genuine remorse. The court may also consider the defendant’s cooperation with authorities and any steps taken towards rehabilitation.

Conclusion

Possessing housebreaking implements in New South Wales is a serious offence under the Crimes Act 1900 (NSW). Understanding the legal elements, such as possession of an item capable of breaking into a house or vehicle, and the absence of a lawful excuse, is crucial for anyone facing charges. The prosecution must prove these elements beyond a reasonable doubt, and various defences, such as lack of possession or a lawful excuse, may be available. The court process and penalties vary between the Local Court and District Court, with the latter handling more severe cases.

If you or someone you know is charged with this offence, it is essential to seek legal advice immediately. Contact Daoud Legal, a trusted criminal law firm in Sydney, for expert guidance and representation. Their specialised services can help navigate the complexities of the legal process and work towards the best possible outcome for your case.

Frequently Asked Questions