A conviction of burglary with intent to rape becomes convoluted when under appeal, the defendant places the burden of proof upon a building fixture.

In an unprecedented case, the defendant was a teenager who for one reason or another, took it upon himself to enter a teenage girl’s bedroom before engaging in sexual intercourse.

What distinguishes this impulsive act from one that many might expect at that age, is the fact that the complainant allowed his entry on the mistake that she believed him to be her boyfriend, and not a complete stranger.

Having first consumed a large amount of alcohol, the defendant decided that one way or another, he was going to have his way with a willing girl, somewhere.

On this occasion, he selected the home of a girl who, while not directly known to him, he had seen when working on her parents house sometime before.

Having climbed a ladder to her bedroom window, the defendant saw her lying naked in her bed and removed his clothes, while fully aroused.

The complainant was also inebriated to some degree, and therefore beckoned him into her bed, while physically pulling him in before they began to have sex.

After a period of time, the complainant realised that the person she was having sex with was not her boyfriend; upon which, she slapped him and ran to her bathroom.

Following his arrest the following morning, the defendant confessed to his actions but denied that he intended to rape her; instead noting that she had willingly invited him into her bedroom (much to his surprise) on the pretence that they were to have sex.

When heard before a jury, the charge brought before them relied upon section 9(1)(a) of the Theft Act 1968, which explained that burglary was an act requiring trespass with intent to commit an offence, which in this instance fell under section 9(2) as rape.

Having explained the nature of his entry and the preceding acts, the judge left the jury to consider whether his trespass was intentional or reckless, upon which it was agreed that the former applied.

Having appealed, the defendant challenged the conviction on grounds that it had been unproven as to whether the entry was undertaken based upon the complainant’s words and actions, and thus remained unproven as to whether the defendant was outside the window frame or inside the bedroom when she invited him in.

In light of the fact that insufficient evidence existed when establishing that fact, it was decided by the Court that a degree of misdirection had occurred in the original hearing, and so without the full disposal of the truth the conviction for burglary could not stand, while the court reminded the parties that:

“[T]here cannot be a conviction for entering premises “as a trespasser” within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent.”

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