Possessing Housebreaking Implements

It is an offence, under s 49D of the Summary Offences Act 1996, to possess housebreaking implements if you do not have a lawful excuse for doing so. Housebreaking implements can include tools such as a crow bar, hammer or screwdriver.

If you are charged with this offence we can work through the case with you and provide you with the legal assistance you need.

Housebreaking Implements
Police Interview

The police may want to interview you in relation to this charge. Anything you tell the police can be used in evidence against you. It is important to remember that you have the right to say ‘no comment’ to police except where they ask for your name, address and date of birth.

Before you speak to police you should speak to a criminal lawyer who can go through the procedures of a police interview and advise you on whether you should provide a comment interview.

Pleading Not Guilty

If you think you have been wrongly charged with this offence it is important to get in touch with a criminal lawyer as soon as possible who can discuss your options with you. We have dealt with this charge often and have successfully been able to have it withdrawn on the basis that the housebreaking implements were actually tools being used by our clients for work. We will be able to help you navigate the system and develop a strategy for your case if you decide to plead not guilty.

Pleading Guilty

Where there is strong evidence against you, you may decide to plead guilty. It is equally as important to have a lawyer represent you where this is the case. Our lawyers do court appearances at the Magistrates’ Court daily and will be able to assist you to put together a plea on your behalf that will get you the best possible outcome.

Which court will the case be heard in?

It is the sort of charge that is heard in the Magistrates’ Court.

What is the legal definition of Possessing Housebreaking Implements?

A person must not, without lawful excuse, have an implement of housebreaking in his or her custody or possession.

Examples of Possessing Housebreaking Implements
  • You are walking along the street late at night carrying a crowbar. The police stop you and question you, and you don’t have a lawful excuse for carrying the crowbar.

The legislation for this offence can be found in section 49D of Summary Offences Act 1966.

Elements of the offence

In order to make out this charge, the prosecution must prove the following beyond reasonable doubt:

  1. The person had a housebreaking implement
  2. In their custody or possession
  3. Without lawful excuse

Was the implement a housebreaking implement?
Housebreaking implement is not defined in the Summary Offences Act 1966. The ordinary meaning of ‘housebreaking implement’ would be an item capable of being used breaking into a house. For instance, a crowbar could be capable of opening a window.

Did the accused have the housebreaking implement in their custody or possession?
Whether or not the accused had the implement in their custody or possession will depend on the circumstances. The implement would not necessarily have to be on their person – for instance, if the item is in their handbag, or the boot of their car, this could amount to constructive possession. The prosecution will be looking at whether the accused had access to or effective control over the item.

Did the accused have a lawful excuse?
The accused may have a lawful excuse for possessing a housebreaking implement. For instance, a screwdriver could be used to break into a house, but the accused may be in possession of the screwdriver because they work in construction.

“Can they prove you were in possession of a housebreaking implement without lawful excuse?”

Defences to this could be a factual dispute or lawful excuse for possession, as well as the concept of beyond reasonable doubt.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Questions in cases like this
  • Were you in possession of a housebreaking implement?
  • Could the implement be capable of breaking into a house?
  • Did you have a lawful excuse for carrying the implement?
Maximum penalty for section 49D of the Summary Offences Act 1966

The charge of Possessing Housebreaking Implements (s49D of the Summary Offences Act 1966) has a maximum penalty of imprisonment for 2 years.


Sentencing in the Magistrates’ Court of Victoria

Sentencing Statistics Pie Chart for Possess Housebreaking Implements in the Magistrates' Court of Victoria between 2018 and 2021

Other important resources