BA v The King

Case [2023] HCA 14

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

BA  APPELLANT

AND

THE KING  RESPONDENT

BA v The King

[2023] HCA 14

Date of Hearing: 7 February 2023
Date of Judgment: 10 May 2023

S101/2022

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 20 August 2021 and, in their place, order that the appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) be dismissed.

On appeal from the Supreme Court of New South Wales

Representation

S J Odgers SC with K J Edwards and E S Jones for the appellant (instructed by Legal Aid NSW)

T A Game SC with L A Coleman and M L Millward for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

BA v The King

Criminal Law – Appeal – Break and enter and commit serious indictable offence – Where appellant and complainant co‑tenants of apartment under Residential Tenancies Act 2010 (NSW) ("RT Act") – Where appellant had moved out and ceased paying rent – Where appellant, while still a co-tenant, entered apartment by breaking down locked door and assaulted complainant – Where appellant pleaded not guilty to "breaks and enters any dwelling-house ... and commits any serious indictable offence therein" in circumstances of aggravation under Crimes Act 1900 (NSW), s 112(2) – Where trial judge directed verdict of not guilty under s 112(2) because appellant had right to enter apartment under residential tenancy agreement – Whether person who "breaks and enters any dwelling-house" under s 112 must be trespasser without lawful authority to enter – Whether appellant had lawful authority to enter premises.

Landlord and Tenant – Whether right of occupation granted under residential tenancy agreement conditional upon tenant's purpose of entry being use of premises as residence – Whether no lawful authority to enter premises where entry made without consent of occupant – Whether right of exclusive possession under lease lost when co-tenant vacates premises but remains a lessee – Whether provisions of RT Act condition tenant's lawful authority to enter premises.

Words and phrases – "break and enter", "breaks", "burglary", "co-tenants", "consent", "damage to premises", "dwelling-house", "entry", "exclusive possession", "habitation", "lawful authority", "liberty to enter", "occupation", "purpose of entry", "residential tenancy agreement", "right of entry", "right of possession", "trespass", "trespasser".

Crimes Act 1900 (NSW), ss 4, 105A, 112, Pt 4 Div 4.
Residential Tenancies Act 2010 (NSW), ss 13(1), 51(1)(d), 79.

  1. KIEFEL CJ, GAGELER AND JAGOT JJ.   This appeal should be dismissed. The Court of Criminal Appeal of the Supreme Court of New South Wales did not err in allowing the Crown's appeal against the appellant's acquittal[1], on the charge of break and enter and commit serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) contrary…

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BA v The King [2023] HCA 14
Case
[2023] HCA 14
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Crown against a decision of the Court of Criminal Appeal of New South Wales concerning the interpretation of the offence of break and enter. The appellant, a co-tenant under a residential tenancy agreement, had moved out of the shared apartment and ceased paying rent. He subsequently forced entry into the apartment by breaking down the locked front door and assaulted his former partner, who was still residing there and had refused him entry. The appellant was charged with break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW).

The central legal issue before the High Court was whether the appellant, by virtue of his status as a co-tenant, possessed lawful authority to enter the premises, even if entry was effected by force and against the wishes of the other occupant. This required the Court to determine whether the offence of "breaks and enters" under s 112 of the Crimes Act necessitates that the accused be a trespasser without lawful authority to enter, and whether the rights conferred by a residential tenancy agreement, particularly for a co-tenant who has vacated, are conditional upon the purpose of entry or the consent of other occupants.

The High Court held that the elements of "breaks and enters" require a trespass, meaning entry without lawful authority. It reasoned that the appellant's right of occupation as a co-tenant under the Residential Tenancies Act 2010 (NSW) granted him a right of exclusive possession, which was not extinguished by his ceasing to reside in the apartment or by his failure to pay rent. Consequently, the appellant retained lawful authority to enter the premises, including by force that would otherwise constitute a "break". His forcible entry was therefore not a trespass, and he did not require the consent of the complainant to enter. The Court further clarified that his liberty to enter was not conditional on using the premises as a residence, nor was it removed by his actions contravening s 51(1)(d) of the Residential Tenancies Act 2010 (NSW).

Accordingly, the High Court allowed the appeal, set aside the orders of the Court of Criminal Appeal, and ordered that the appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) be dismissed. This outcome meant that the initial direction for a verdict of not guilty at trial was upheld, as the appellant's status as a co-tenant meant he did not commit the offence of breaking and entering.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 20 August 2021 and, in their place, order that the appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) be dismissed.

Background

Background to the litigation

The Court of Criminal Appeal was correct to conclude that, on the facts of this case, the appellant's status as a co‑tenant under a residential tenancy agreement did not give him a right to kick down the door, enter the dwelling‑house, and assault his former partner who resided in the dwelling‑house and who had refused him entry.Background There is no dispute about the facts. From about September 2018, the appellant and his partner resided together in an apartment. They occupied the apartment as co‑tenants under a residential tenancy agreement dated 29 August 2018 under the Residential Tenancies Act 2010 (NSW). The appellant ceased to pay rent from about April 2019. The appellant and his partner separated in about May 2019. The appellant moved out of the apartment, taking most of his possessions with him. On 5 July 2019, with the help of her mother, the appellant's by then former partner packed up the appellant's remaining possessions in the apartment for him to collect, by arrangement with her, on 6 July 2019 when she would be absent from the apartment. Contrary to the arrangement, the appellant attended the apartment four times on 5 July 2019. The first time, his former partner let him into the apartment. The other three times, the former partner's mother denied the appellant entry. On 6 July 2019, in accordance with the arrangement, the appellant visited the apartment to collect whichever of his belongings he wished to keep. On leaving the apartment, he left his security token for the garage and his key for the deadlock on the front door to the apartment on a bench in the apartment. He retained one key to the apartment but both keys were required to unlock the front door. As the appellant put it, "it was not disputed that the appellant was not residing at the apartment ... at the time of the alleged offence. It was also not disputed that, on 8 July 2019, the front door to the apartment was locked". On 8 July 2019, at about 6.00 am, the appellant arrived at the apartment. He screamed at his former partner demanding to be let in. His former partner did not let him in. He then kicked open the door, which was secured by three locks, including the deadlock, and forced the door inwards causing the deadlock to shatter the wooden doorframe. He entered the apartment and grabbed his former partner by the shoulders, shook her, yelled at her, seized her mobile phone when she tried to make a call on it, and threw the phone to the floor. The appellant was charged with the offence of break and enter and commit serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) contrary to s 112(2) of the Crimes Act. He pleaded not guilty. The District Court of New South Wales directed that a verdict of not guilty be entered, and the appellant was acquitted. The Crown appealed on a question of law which asked if the District Court erred in deciding that, as a pre‑condition to an offence under s 112(2) of the Crimes Act, "the prosecution was required to establish that an accused person did not have a pre‑existing right to enter the subject dwelling house, notwithstanding that entry was effected by an actual breaking involving force".

Evidence

Evidence Before The Court

For the reasons given below, the composite elements of "breaks and enters" in s 112(1)(a) require a trespass, that is, entry to premises of another without lawful authority. The appellant's "right of occupation", granted under his residential tenancy agreement, was not in the nature of a mere permission to occupy that might be qualified in the ways contended for by the Crown. The appellant had a right of exclusive possession which would not have been lost even if it had been found that he ceased to occupy the premises prior to the expiry or termination of the residential tenancy agreement. Consistent with that right, the appellant had lawful authority for entry into the Queanbeyan apartment, including by force of the kind that would constitute a "break" in the absence of such authority, so that his forcible entry was no trespass. Having that authority, the appellant did not require the complainant's consent to enter the residential premises. The appellant's liberty to enter the premises was also not conditional upon his having a purpose to use the premises as a residence, nor was it removed when he entered the apartment by force, in contravention of s 51(1)(d) of the RT Act. Accordingly, the appeal should be allowed. The alleged offence and the evidence The appellant pleaded not guilty to one count on an indictment alleging that:"on the 8th day of July 2019, at Queanbeyan in the State of New South Wales, [the appellant] did break and enter the dwelling house of [the complainant at the relevant address] and did commit a serious indictable offence therein, namely, intimidation, in circumstances of aggravation, namely, at the time of the offence [the appellant] used corporal violence on [the complainant]." The appellant and the complainant were in a relationship for some time and had lived together in the Queanbeyan apartment, which was a "dwelling‑house" within the meaning of s 112(1)(a)[35]. As at 8 July 2019, the appellant and the complainant were co‑tenants of the apartment under a residential tenancy agreement regulated by the RT Act. The agreement commenced on 12 September 2018 for a period of 12 months. Ultimately, the residential tenancy agreement was terminated on 23 July 2019.[35]Defined in s 4 of the Crimes Act as, relevantly, "any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied". By about May 2019, the relationship between the appellant and the complainant had broken down and the appellant had ceased to live at the apartment, although the complainant continued to live there. The appellant had also relinquished at least one of the two keys that were required to unlock the front door and the security token for the garage. The appellant ceased to pay rent after about April 2019 and, by 8 July 2019, he had removed the great bulk of his possessions from the apartment. On the morning of 8 July 2019, the front door of the apartment was locked. The appellant arrived at the front door at about 6 am, where he screamed at the complainant and demanded to be allowed in. When not permitted access, the appellant kicked open the door, which was secured by three locks, including a deadlock, and forced it inwards, causing the deadlock to shatter the wooden doorframe. Once inside the apartment, the appellant grabbed the complainant by her shoulders, shook her and yelled at her, seized her mobile phone when she endeavoured to make a call and threw the phone to the floor. The force used by the appellant in breaking down the door also amounted to "intentionally ... caus[ing] ... damage to the residential premises" contrary to s 51(1)(d) of the RT Act.

Decision

Reasons for decision

KIEFEL CJ, GAGELER AND JAGOT JJ GORDON, EDELMAN, STEWARD AND GLEESON JJ

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER AND JAGOT JJ, GORDON, EDELMAN, STEWARD AND GLEESON JJ

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