Sections 425 of the Criminal Code Queensland states:

(1) Any person who is found under any of the circumstances following, that is to say-

(a) being armed with any dangerous or offensive weapon or instrument, or noxious substance, and being armed with intent to break or enter a dwelling or premises, and to commit an indictable offence therein;

(b) having in his or her possession anything intended for use or in connection with the commission of an offence defined in section 419 or 421;

(c) having in his or her possession by night without lawful excuse, the proof of which lies on the person, any instrument of housebreaking;

(d) having in the person's possession by day any such instrument with intent to commit an indictable offence;

(e) having his or face masked or blackened or being otherwise disguised, with intent to commit an indictable offence

is guilty of a crime.

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

The accused:

1. Was found by night. (That means the accused was located between the hours of 9pm and 6am).

2. Was in possession of an instrument of housebreaking.

3. Of an instrument of housebreaking

4. Without lawful excuse.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.

The Maximum penalty for the offence of Possession of Housebreaking Implements is 3 years imprisonment.  If the offender is previously convicted of a crime relating to property, the maximum sentence is 7 years imprisonment.

This matter is indictable which means it is dealt with in the District Court.

It may be also dealt with in the Magistrates Court.

Possible defences to this offence include but are not limited to

1. Duress

2. Necessity

3. It was not night time

4. Accused was not in possession of the instrument of housebreaking.

5. The instrument was not capable of being used for housebreaking.

The accused had a lawful purpose