A judge has refused to throw out a burglary charge against a man on the basis that no part of the man’s body crossed the home.

Lorcan Staines BL, defending, brought the application before Dublin Circuit Criminal Court, saying that there was no evidence that his client trespassed on the property.

The man, who cannot be named for legal reasons, is charged with trespassing into a house in Dublin with the intention of committing an offence there on January 20, 2013.

The homeowner told gardai that she was in her living room when she looked up towards the sash window and saw a man trying to get in. She said he left when she shouted at him. She said the window had been left slightly open but the man had pulled it all the way down and was standing on the outside ledge and was lifting his leg to get in.

Judge Mary Ellen Ring ruled against the defence application to have the charge dropped. She said there is evidence from the home owner that she saw the accused about to climb into the window after he had pulled it down.

She said: “Her evidence is that he had opened the window the whole way. They would require entry of a minimal way”.

Mr Staines had argued that to constitute entry a trespasser would have to put his hand or body inside the property.

“Entry can only be at least an organ or a limb across a threshold. Putting your hand in a letter box could amount to burglary,” he said, submitting that standing at an open window did not amount to trespass or burglary.

Eilis Brennan BL argued, on behalf of the Director of Public Prosecutions, that there is precedent in law that somebody stuck in a window could be prosecuted with trespass.

She also referred to English case law in which a boy was convicted of trespass by a jury on evidence that he had pushed his finger against a pane of glass while standing by a shop door.

Mr Staines said this example was “utterly draconian” and was not relevant to the facts of his client’s case.

Judge Ring said that one legal definition of a building is that it includes the walls and the fabric or ground on which the building stands. She said it could be argued that the window sill is part of the fabric and that the accused had entered on to the building by climbing on to the outside sill.

Mr Staines asked the court to put the case in for another date when his client will either enter a plea to the charge or elect for trial.