BA v The King
[2023] HCATrans 2
[2023] HCATrans 002
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S101 of 2022B e t w e e n -
BA
Appellant
and
THE KING
Respondent
KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT JTRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 7 FEBRUARY 2023, AT 9.59 AM
Copyright in the High Court of Australia
MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant with my learned friends, MS K.J. EDWARDS and MS E.S. JONES. (instructed by Legal Aid (NSW))
MR T.A. GAME, SC: If the Court pleases, I appear for the respondent with my learned friends, MS L.A. COLEMAN and MS M.L. MILLWARD. (instructed by Solicitor for Public Prosecutions (NSW))
KIEFEL CJ: Mr Game, I understand that you need leave to rely on your notice of contention, but ‑ ‑ ‑
MR GAME: Yes, your Honour.
KIEFEL CJ: ‑ ‑ ‑ I infer that there is no opposition to that.
MR ODGERS: There is not, your Honour.
KIEFEL CJ: Yes, thank you. You have that leave.
MR GAME: Thank you, your Honour.
KIEFEL CJ: Yes, Mr Odgers.
MR ODGERS: Just a preliminary matter. We understand that pursuant to section 111 of the Crimes (Appeal and Review) Act 2001(NSW), that that provision operates to prohibit the identification of the acquitted appellant even if there is a retrial – even if the acquittal is quashed and there is an order for retrial – until that retrial is concluded. I have copies of the necessary provision if your Honours need it, but, essentially, what we are asking your Honours to do is to continue the use of the BA reference to prohibit identification of the appellant.
KIEFEL CJ: Yes, thank you, Mr Odgers.
MR ODGERS: Thank you, your Honours. Your Honours have the outline, I take it.
KIEFEL CJ: Yes.
MR ODGERS: Your Honours will have seen that at paragraph 1 we have attempted to isolate what we understand to be the two issues. The first issue is essentially that the basis upon which the majority of the Court of Criminal Appeal upheld the appeal – which was in essence that, even if the appellant had a contractual right to enter the premises, that there would still be a break for the purposes of section 112 of the Crimes Act (NSW) if the entry was made without the consent of – Justice Brereton’s language, “the actual occupant”; Justice Fullerton’s language, “those either in occupation of the premises or those entitled to occupy the premises”; or, as we understand it the respondent’s modification, the sole person in lawful occupation of the property. That is the first issue.
The second issue raised by the notice of contention is whether the appellant’s right to enter pursuant to his right of occupation under the lease was qualified, limited by the operation of section 51(1)(d) of the Residential Tenancies Act, so that, in essence, he did not have a right to enter in a way that intentionally or negligently caused damage to the premises. That, of course, was the argument that was run in the Court of Criminal Appeal by the Crown, and the argument that was accepted by Justice Adamson, although the other two members of the court did not accept that argument.
What I am just proposing to do is relatively briefly take your Honours through the proceedings below just so that your Honours understand how we got here, and that is really the primary purpose of it. I am not seeking to raise questions about what order should be made as a result but to simply provide background.
EDELMAN J: Mr Odgers, without attempting to distract you at all from the background, as I understand it your argument of principle is in a way independent of any of the facts. So if, for example, the person who had left the premises was the person who is complaining of – or complaining of being a victim of domestic violence, then your argument of principle is that that person would not break and enter if they sought to return to collect some of their goods while, for example, the perpetrator was not present.
MR ODGERS: Yes, your Honour and, indeed, one of our arguments against the analysis of Justice Brereton is that, on that analysis, it would have that rather odd outcome – if I could use that language. In paragraph 3 – which I will come to in a minute – we have identified matters that we do not see as being factual matters that are in any dispute and which this Court can proceed on the basis of – but I will come to that in a minute.
In the trial, at the end of the Crown case, an application was made for a directed verdict on the basis that the Crown could not prove the element of breaking in section 112 of the Crimes Act and could not prove that because it was put that the appellant had a right to enter which derives from his lease which was still ongoing at the time that he entered. So, the argument put, very simply, was that he had a right to enter pursuant to the lease, therefore he could not commit a break and it was also put by defence counsel that there had not been any abandonment of that right – notwithstanding the fact that he had moved out and he had taken almost all of his property, et cetera, but it was put, there is a system in place for abandoning your rights and that had not occurred and it was put no abandonment.
The solicitor advocate appearing for the Crown did not dispute that the appellant had a right to enter pursuant to the tenancy and did not seek to argue that there had been any abandonment of that right. What was argued in the trial below was that an argument relying on Ghamrawi – and, indeed, a misunderstanding of Ghamrawi – that if there was a forceable breach, then it was not relevant that there was a right to enter. Excuse me, I will just drink something. I can take your Honours to references to these matters if your Honours need that, but essentially what was put by the solicitor advocate was that even if he had a right to enter pursuant to the lease, that did not prevent a break. There would break if force was used to enter the premises.
The trial judge rejected that argument, and I do not think there is any dispute that his Honour was correct to do so. His Honour held that there may still be a break under section 112, even if force was used – as it was in this case – to enter the premises. His Honour held – again, I do not think there is any issue – that the right to enter was still relevant. The Crown had not argued that he did not have the right, therefore because his Honour rejected the argument that force alone necessarily meant there was a break, his Honour proceeded to hold that the Crown had not proved the element of break and therefore entered the verdict of acquittal.
Just to give the comprehensive history, the appellant then entered pleas of guilty to assault, intimidation and destruction of property. He was not sentenced at that point; he has, as yet, still not been sentenced. Your Honours would note that under the Crimes (Sentencing Procedure) Act, section 21A(2)(eb), the fact that the offence was committed in the home of the complainant will be an aggravating factor on sentence. I just draw that to your Honours’ attention.
So that aggravating element of committing offences in the home of another person will be a matter that is aggravating in terms of determining sentence for those matters. I would also note that conviction of a domestic violence offence – and intimidation is a domestic violence offence under the Crimes (Sentencing Procedure) Act – that there are provisions which create statutory presumptions as to how that person is to be sentenced. So, again there are provisions dealing with domestic violence offences and sentencing for those.
Moving on, then, to the appeal to the Court of Criminal Appeal, there was a notice of appeal under section 107 of the Crimes (Appeal and Review) Act on a question of law alone. That is at page 11 of the core appeal book if your Honours want to look at that. In essence, the suggested error was that it was put that it was an error for the judge to require the prosecution to prove that there was no right to enter, essentially replicating the argument below that, even if there was a right to enter, there was a break because there was force. That argument was the basis for the question of law raised.
However, when it came to the Court of Criminal Appeal, a different argument was advanced by the Crown, not that having the right was irrelevant but, rather, that the right had been lost because of the operation of section 51(1)(d). Perhaps “lost” is not the right word – had been limited, qualified by the operation of section 51(1)(d) of the Residential Tenancies Act which, as I am sure your Honours appreciate, says that a tenant “must not intentionally or negligently” damage a premises. It was put that that prohibition had the effect of limiting the right to enter and that therefore, when the appellant entered the premises, he did so not pursuant to his right to enter and accordingly, there was a break.
Of course, that argument was accepted by Justice Adamson who held that there was no right to enter because he was not authorised to use force causing damage and, therefore, there had been an error by the trial judge. The majority did not accept the Crown argument but held that, even if there was a contractual right to enter, it was still a break if the appellant did not have the permission or consent of the “actual occupant” of the premises to enter.
GAGELER J: Was that the subject of argument before the Court of Criminal Appeal?
MR ODGERS: No. So, that was how the Court proceeded to determine the matter. There was a discretionary question about – given the fact that there were things that were not argued, the argument in the trial below was not advanced at appeal, the argument upon which the majority decided the case was not ventilated – despite all of those matters, the Court determined that it was appropriate to allow the appeal and quash the acquittal, and we have not challenged that exercise of discretion, so, I am not – despite giving you that history and saying all of those things, I am not here to try to get your Honours to revisit that question.
Our argument is simply that he had a right to enter; there was no break, and that the two issues that we have raised need to be resolved in our favour, essentially. So that, we say, the critical test is not the permission of the occupant, but rather whether or not there was a right to enter under – in this case – contract law.
EDELMAN J: Well, it is not, really. Your argument actually focusses on the proprietary right under the lease. If one is limited to contract law, then ‑ ‑ ‑
MR ODGERS: I am sorry, yes, your Honour. I was limiting myself too narrowly. The proprietary or contractual right under the lease, I accept that. I think I, for the reasons I have ‑ ‑ ‑
KIEFEL CJ: Is it a lease or a residential tenancy agreement?
MR ODGERS: Yes. The way we formulate it, and again, this may be wrong, is that the landlord agrees that the tenant may occupy the premises. That is a term of the agreement, the lease. The Residential Tenancies Act actually mandates various terms, so that, at the time the lease was entered into, with the appellant and the complainant, a term was that the landlord agreed that the tenant, tenants, co‑tenants, would have a right to occupy ‑ ‑ ‑
KIEFEL CJ: Is it correct to call it a lease, though?
MR ODGERS: Gosh, I do not know, your Honour.
GORDON J: I mean, a residential tenancy agreement is not an agreement, it is how it is defined.
MR ODGERS: Yes.
KIEFEL CJ: Leases have different incidents ‑ ‑ ‑
MR ODGERS: I am sorry, your Honour, I was using it in a very – I apologise, your Honour. At this point I am going to acknowledge that I do have a tendency to use language which is probably not strictly accurate in this field and I apologise for that. But what I meant was, there was an agreement between – which was based on the Residential Tenancies Act. A term was I give you a right to occupy. That necessarily implies a right to enter and ‑ ‑ ‑
EDELMAN J: But it was an agreement with a right to occupy, and in that sense, contractual.
MR ODGERS: Yes.
EDELMAN J: But there has been no dispute at any stage that also carries with it a right of immediate possession in property law.
MR ODGERS: Yes. That is my understanding; yes, your Honour.
GLEESON J: The Residential Tenancies Act speaks of a right to enter in relation to the landlord. Does it speak about a right to enter in relation to the tenant?
MR ODGERS: No, all we can see is that, I think it is section 113, talks about the agreement as conferring “a right of occupation”.
GORDON J: I think it is section 13.
MR ODGERS: I thought I said 13. If I said 113, I apologise, I meant 13.
GORDON J: It is section 13(1), gives you the “right of occupation”.
MR ODGERS: Yes, thank you. Moving on then, I am not sure if I have answered all the questions, but I will keep going. As your Honours see in paragraph 3 – and I do not need to really speak to this – we say that there are a number of factual and possibly legal matters that are not in issue. Under the agreement the appellant and complainant as co‑tenants had a right of occupation and was only terminated after the offence.
The appellant was not residing at the premises, although he still had some property there. The complainant had locked the front door and did not consent to him entering the premises. He used force which damaged the front door which amounted to a breach of 51(1)(d) of the Residential Tenancies Act. There was evidence that, when he entered, he committed at least one “serious indictable offence” in circumstances of aggravation. So, the critical question before the trial judge was whether or not there was a basis to conclude that the element of break had been established.
So then turning to the first issue, which is the test adopted by Justice Brereton and Justice Fullerton with some qualifying comments, which I will not at this stage take your Honours to, and adopted to some extent by the respondent – I will leave the respondent, Mr Game, to explain how he takes it – modifies the approach taken by Justice Brereton.
We say that all of those approaches should not be accepted by this Court. The first point we make, is that the term “breaks” in section 112 – at this point, I probably should take your Honours to section 112. It is in Part A, page 40. So, subsection (1):
A person who:
(a)breaks and enters any dwelling‑house or other building and commits any serious indictable offence therein, or –
. . .
is guilty of an offence and liable to imprisonment for 14 years.
Then there is an aggravated offence, and we can see that there was evidence of a circumstance of aggravation. As I say, the issue before the trial judge is whether there was evidence on which the Crown could prove that there was a break and what was put by the appellant was they could not prove a break because you could only have a break if he was not entering pursuant to a right to enter – the right to enter derived from the tenancy agreement which was ongoing at the time.
We submit that – and I am not sure that this is disputed – that the term “breaks” in section 112 embraces the common law meaning of that term. Our understanding of the common law meaning of that term is that there will not be a break if there was authority or permission to enter and that that authority or permission can derive from a number of alternative sources. It could derive from a proprietary or contractual right to enter, or it could derive from the consent of the owner, or it could derive from the consent of a lawful occupant. The critical point we are making here is that there are a number of alternative sources of an authority or permission to enter, so the Crown must prove that there was no authority or permission to enter from any of those sources.
GAGELER J: Mr Odgers, is that a matter of the definition of the primary common law meaning of “break” or is it to recognise the existence of a common law justification for what would otherwise be a break? There may be a difference in the analysis.
MR ODGERS: My answer is that the common law is, with respect, somewhat murky and making emphatic statements can be problematic. But, from our researches, the conclusion we have drawn – and the submission we make – is that the word “break” carries with it a requirement that there must be an absence of authority or permission to enter so that, if you do have a right to enter pursuant to an authority or permission, then you cannot commit a break. That is what our understanding of the common law – and I will take your Honours ‑ ‑ ‑
GAGELER J: So, in every case, it would be incumbent on the Crown ‑ ‑ ‑
MR ODGERS: Yes.
GAGELER J: ‑ ‑ ‑ or the prosecution ‑ ‑ ‑
MR ODGERS: Yes.
GAGELER J: ‑ ‑ to prove that negative ‑ ‑ ‑
MR ODGERS: Yes.
GAGELER J: ‑ ‑ ‑ as an element of the offence.
MR ODGERS: Yes, that is our submission. To put it in an even simpler form – and this is paragraph b of the outline – we say that to commit a “break” under the common law, there must be an act of trespass and that the statutory replacement that has occurred in some jurisdictions – Victoria and the United Kingdom – of a “break” test with a “trespass” test retained the core trespassory element of a break while removing some of the archaic distinctions about windows, doors that are half‑open and not closed, and windows that are half‑open and so on – and that kind of complexity that retained this – what we say is the core element of a break, which is a trespass.
Now, just to make good that claim, I am just going to draw your Honours’ attention to three sources. Firstly to Russell, A Treatise on Crimes and Misdemeanors. It is in Part B of the joint book of authorities at page 773.
KIEFEL CJ: Sorry, what tab was this under Part B?
MR ODGERS: I think I have got it wrong, your Honour, it is not Part B.
EDELMAN J: It is tab 36, is it not?
MR ODGERS: Part E, I apologise, volume 5. I do not have tabs.
GORDON J: Tab 36, I think.
MR ODGERS: Thank you, your Honour. At page 773 of the appeal book under the heading, “SEC. II. The Breaking and Entering”, your Honours will see in the second paragraph:
With respect to the breaking, it is agreed that it is not every entrance into a house, in the nature of a mere trespass, which will be sufficient, or satisfy the language of the indictment –
Now, that does not explicitly say that there has to be a trespass for a break, but the implication of that sentence is that is has to be a trespass but there are other requirements. That is not the only aspect of the history that I am going to rely on, but that is a guide to – a reference to a requirement for a trespass which, we say, is an element of “break”.
A clearer statement to that effect is in that Columbia Law Review note which was referred to in Barker v The Queen by Justices Brennan and Deane. The note itself is in the same Part B, volume 5, at page 619, tab 27. Under the heading:
ANALYSIS OF THE ENDS SERVED BY THE PRESENT LAW OF BURGLARY
Burglary may be considered generally to consist of a trespassory entry into certain buildings with –
a particular intent. Then, at the bottom of the page, under the heading:
A. Trespass
At common law, burglary was classified together with arson as a crime against the habitation. Blackstone rests his explanation of burglary law upon the premise that burglary disturbs a “right of habitation.” Emphasis upon a “right of habitation” seems tantamount to concluding that burglary law is justified by the interest of owners or occupants of dwellings or other buildings in excluding trespassers.
Then, there is a reference to the English Commissioners and the intention to single out:
the worst trespasses for special treatment as burglaries.
Lastly, those two pages that I have just read out – the extracts I have read out from that review note were specifically referred to by Justices Brennan and Deane in Barker v The Queen (1983) 153 CLR 338 which I will take your Honours to now. It is in Part C, page 323, tab 18. I will just take you to that reference and then I propose to just take you through Barker. It is not strictly on point, of course, because it is a case about the theft legislation where the word “break” had been replaced by “trespass”, but because we say that “break” necessarily incorporates a trespass element it is informative, we say, to this Court’s consideration of section 112.
At page 340 in the judgment of Justices Brennan and Deane, who were in the majority, the Court agreed on the analysis, except Justice Murphy dissented, but Justices Brennan and Deane were in the majority. In the middle of the page there is a middle paragraph. They are referring to the Victorian ‑ ‑ ‑
EDELMAN J: Sorry, middle of which page?
MR ODGERS: I am sorry, this is 340 appeal book, page 355 of the judgment. In the middle of the page there is a paragraph beginning “Section 76(1)”, which was a reference to the Victorian provision which, as I say, replaced “break” by the word “trespass”. Then it is noted that that followed the English Theft Act:
That Act substantially reformed the law of theft in the United Kingdom. In particular, its provision relating to burglary repealed the then existing offence of breaking and entering of which the element of entry “as a trespasser” was not, in terms, a requirement. As the English Court of Appeal said in Reg. v. Jones and Smith, “[e]ntry as a trespasser was new in 1968 in relation to criminal offences of burglary. It was introduced in substitution for, as an improvement upon, the old law which required considerations of breaking and entering and involved distinctions of nicety which had bedevilled the law for some time.”
Then this is important – this is what I rely on. Justices Brennan and Deane say:
The new requirement –
that is, trespass:
had, however, close connection with the original law of burglary (see “The Rationale of The Law of Burglary”, Columbia Law Review, vol. 51 (1951), 1009, at pp. 1020‑1021).
Which were the pages I drew your Honours’ attention to. So we say that their Honours were acknowledging that it did seem to be the case that to commit a break under the common law there needed to be a trespass, in essence.
GORDON J: Can I ask a directed question, Mr Odgers. In Ghamrawi, which I assume you are going to come to, Justice Leeming deals with this in two paragraphs at paragraphs 53 through to 55. Do you take issue with that analysis for burglary at common law?
MR ODGERS: I do not think so, your Honour.
GORDON J: I see. Thank you.
MR ODGERS: I am not sure that Justice Leeming refers to the break requiring a trespass. I think to that – So, although I may not take issue with what his Honour said, I think I am, perhaps, providing a refinement.
GORDON J: I see.
MR ODGERS: The reason I am doing that is because I am not sure that Justice Leeming referred to Barker – and if he did, it was brief – and the reason I give some weight to Barker is because their Honours proceed to identify what is necessary for a “trespass” for the purposes of these criminal offences, and I will take your Honours to that immediately. In the judgment of Justices Brennan and Deane at page 341 of the appeal book, on 356 of the Commonwealth Law Reports, at the bottom of the page, it is stated:
At common law, a person enters land as a trespasser if he enters land in the possession of another without justification (see Salmond and Heuston, Law of Torts . . . Justification may take a variety of forms including, inter alia, a paramount right to possession, some other statutory or common law right of entry, the leave and license of the person in possession and, in the absence of negligence, involuntary and inevitable accident.
And then, about ten lines down:
When the permission of authority (“leave and license”) of the person entitled to possession is relied upon to justify what would otherwise constitute a trespass, a person enters land as a trespasser at common law if his entry is beyond the scope of the permission.
I rely on that analysis to confirm what I have put to your Honours in my primary submission, which is that there are alternative sources of authority or permission to enter, and that if one of those sources applies – so that, for example, you have a statutory or common law right of entry – then you are not a trespasser.
GAGELER J: So, to commit the crime at common law, you had to commit the tort at common law. Is that the way it went?
MR ODGERS: I think that is correct, yes, your Honour. At least you had to commit a trespass, and that ‑ ‑ ‑
GAGELER J: Which is a tort.
MR ODGERS: Which is a tort. The reason I am hesitating, your Honour, is because there may be defences that apply to a tort which do not apply to trespass – to the criminal offence – but I am ‑ ‑ ‑
GAGELER J: That complicates things hugely if that is the case. I mean, you are saying that an element of the crime is the commission of the tort. I understand that to be your submission.
MR ODGERS: What I had said was – and if the content of what I am saying is it is tort, then so be it, but what I put was that there had to be a “trespass”. The trespass was understood in the common law to mean the following, and then that is, therefore, an element of break.
KIEFEL CJ: Are you limiting it to an act of trespass?
MR ODGERS: An unauthorised entry, your Honour. If it is necessary to the argument that I am relying on – then I think there is no doubt that for these criminal offences that break necessarily requires a consideration of the civil law – that would be property law, tort law – and that, in essence, if a person was a trespasser and that, as your Honour says, is a tort, then they may be committing a break, but they have to be a trespasser to commit a break.
I mean, just so we are clear, there is no suggestion in any of these judgements that you would be committing a trespass if you did not have the permission of the occupant. If you are relying on the permission of the occupant, if you do not have any other source of authority or permission to enter, if you are not entering pursuant to a right to possession or a statutory or common law right of entry and you are reliant, as in Barker, on an occupant or the owner giving you permission to enter, then, of course, if it is shown that the permission was limited so that you were acting outside the scope of the permission, then you were committing a trespass and you were, therefore, guilty under the Victorian Act.
GLEESON J: Would this be right, Mr Odgers: you have not identified any case in which the offence that includes a break and enter has been found where a person was identified not to be a trespasser.
MR ODGERS: Correct, your Honour. And I go one step further. We have not found any case where a person who had a contractual or proprietary right to enter was found to be committing a break because they did not have the permission of an occupant.
In essence, the argument that was – the conclusion, in the analysis of Justices Brereton and Fullerton and the respondent’s position, is that the consent of the occupant trumps any other right or authority or permission, so that even if you are not a trespasser for one of these other reasons, you still commit a break if you do not have the consent of the occupant. We say there is no authority anywhere to support that analysis.
I will not take you any more through Barker other than to just point out – and it is not an issue here – that Barker was a case where the question of trespass turned on the permission of the occupant. The occupant’s permission was limited. Just the facts of that case were that the accused was given permission to enter to safeguard the property and the premises and he took the opportunity to move it all out and then, when the owner returned and discovered that it had all gone, I think the accused appellant in that case returned most of it, but bottom line was the High Court held, by majority, that the scope of the permission was limited, such that when Mr Barker entered the premises, he did so outside the scope of that permission.
KIEFEL CJ: Well, a similar argument is raised against you here.
MR ODGERS: It is, in the notice of contention. Yes, I will come to that in due course. Of course, can I just make the important point – no, I will not. I understand that, your Honour.
We have conceded in 4(c) that whether a break occurs is determined by the scope of the authority or permission to enter, so that it is not a case of saying you had some general authority, somewhere you were the tenant, et cetera, therefore you cannot commit a break. Rather, we accept that this is relevant to the notice of contention that one has to work out the scope of the right or the authority or permission to determine, as recognised in Barker, that there may be circumstances in which the right is limited so that as a result a particular entry is not authorised.
Moving to (d), the absence of the words in 112 “of another”. Some reliance was placed on that by Justice Brereton and I think the respondent. Just to put it in context, section 109 of the Crimes Act – which is extracted in joint book of authorities, Part A, page 37 – provides:
(1)Whosoever:
enters –
and I make the point at this point: not breaks and enters, but enters:
the dwelling‑house of another, with intent to commit a serious indictable offence –
et cetera, commits an offence. That may be contrasted with section 112, which, as I read out to your Honours:
(1)A person who:
(a)breaks and enters any dwelling house or other building –
and it has been said, or argued, or contended that the absence of the word “of another” in section 112 has significance. We say it does not bear on the meaning of the word “breaks” in section 112. Section 109 (1) criminalises an entry, not a break and enter. It is the word “break” in section 112(1) which operates to preclude commission of the offence where there is authority or permission to enter. The absence of the words “of another” means that in section 112 even an owner may break if the owner – let us say a landlord – did not have authority or permission to enter.
GAGELER J: Mr Odgers, I really do not understand why the weight of your argument is on the word “breaks” rather than the word “enter”.
MR ODGERS: I am sorry, I am not hearing your Honour.
GAGELER J: I have difficulty understanding why the weight of your argument is on the word “break” rather than the word “enter”.
MR ODGERS: The weight of my argument is that the appellant could not commit the offence unless he committed a break, that a break requires a trespass, or an absence of authority or permission to enter. He had authority or permission to enter pursuant to the proprietary or contractual right to occupy, which implied a right to enter, therefore he could not commit a break.
GAGELER J: Another way of conceiving the issue is to say the offence requires a breaking and an entry, and the quality of the entry is that it must be an entry that is not as of right.
MR ODGERS: We say that that is because of the requirement of a break.
GAGELER J: All right.
EDELMAN J: Although the difficulty with the construction that puts the emphasis on the word “break” is you have got to deal with breaking out as well as breaking in ‑ ‑ ‑
MR ODGERS: Yes.
EDELMAN J: ‑ ‑ ‑ and presumably almost anyone has the liberty to break out of somewhere, particularly if they had a right to be there in the first place.
GORDON J: Indeed, it is addressed in the last words of section 109.
MR ODGERS: Yes. We do not know what the words were intended to convey there.
GORDON J: I think it reinforces what is being put to you, Mr Odgers, that you need to look at the phrase “breaks and enters”, and that both of them – I do not think it is against your argument.
MR ODGERS: No, I see that.
EDELMAN J: But “break” may add the element of force onto an entry which is an entry without licence or proprietary right.
MR ODGERS: That is another way of looking at it, your Honours, and I certainly would not disclaim that way of looking at it, and I appreciate that the words “breaking out” might support that way of looking at it. An alternative way is that the words “breaking out” were intended to simply refer in that context to use of force, opening a closed door, et cetera, all of that technical aspect, and that the creation of section 109 was to cover a particular scenario which had not been caught by burglary under the common law.
EDELMAN J: In a way that passage that you referred us to earlier from Russell seems to support that alternative construction, because it talks about “not every entrance into a house”, and then adds being an entrance which is “in the nature of a mere trespass”.
MR ODGERS: Yes.
EDELMAN J: That is focussing on the requirement of entry.
MR ODGERS: Yes.
EDELMAN J: Then it says, well, not every mere trespass will count because sometimes the element of breaking means that even an entry by mere trespass through an open door would not be a breaking and entry.
MR ODGERS: Yes, your Honour. It is appropriate I take your Honours to Ghamrawi v The Queen (2017) 95 NSWLR 405. It is in the joint book of authorities, Part D, at 458, tab 23. Justice Gordon asked me if I take issue with Justice Leeming’s analysis – the short answer I gave was no. It is a detailed consideration of the history of the common law and the statutory provisions, at 467 to 476 of the appeal book and I am not going to take your Honours through that in any detail.
But the core, as I understand it, of his Honour’s analysis was – and in relation to this issue of the significance of the words or not – the absence of the words “of another” – his Honour, at paragraphs 88 to 92 of the judgment – again I will not read out 88 to 92 but, in substance, as I understand it, his Honour was saying it is the absence of the words “of another” in 112 which lead to a necessary conclusion that the term “break” is the term which imports the common law idea of absence of authority or permission to enter. The last sentence of 91:
That in turn suggests that the limiting element –
that is, this element of absence of authority or permission to enter:
which is required to prevent the unlikely results mentioned above –
and those are in paragraph 89, where his Honour talked about, you know, can the owner of property commit a break and enter if they enter and commit an offence – a serious indictable offence in the property. His Honour said that was unlikely and the other scenarios were unlikely, and his Honour concluded that the limiting element of absence of authority or permission:
turns not upon the class of dwelling‑houses, but upon the character of the “breaking”.
GORDON J: I think in relation idea that break and enter has some sort of connection and a relationship is probably borne out by his Honour’s analysis, or starting point, at paragraph 79 where he says:
I have concluded that the better view is that there is no actual breaking if the person has express or implied permission to enter –
In other words, the concepts go together in determining what constitutes a break and what constitutes break and enter.
MR ODGERS: Yes, your Honour. Again, as I say, we adopt ‑ ‑ ‑
GORDON J: Which he then explains and justifies, I think, from what then follows.
MR ODGERS: Yes, your Honour. What jumps out at you – and I would not be surprised if members of the Court focussed on this – is that his Honour in that paragraph in 79, qualifies what it says by saying:
(but unlocked) door –
That is a little difficult to understand because one would normally understand that if an owner had locked himself or herself out of property and had to break in through a locked door, that it still would not be a break.
A similar point is raised – and indeed, of course, in our case it was a locked door, so it is important to address this and to deal with it. A similar point arises from his Honour’s formulation of the principle in paragraph 97, paragraph (3):
However, if a person intends to commit an unlawful act on premises which he or she is permitted to enter, and that permission has been obtained without any trickery, artifice or threat, and entry is effected without using any force –
So those words I need to emphasise:
then there is neither a constructive breaking nor an actual breaking. In that circumstance, the person will be committing the offence created by s 111, but not that created by s 112 –
So again, it is a little difficult to understand why his Honour qualified his statement of principle in that way by limiting the principle to a case where there is no force in that paragraph (3) and in limiting 79 to a case of an unlocked door. We have two potential answers, your Honours, because ‑ ‑ ‑
GORDON J: I think you need to read on to 98, where his Honour then says:
That conclusion is supported by –
as I read his Honour’s analysis, he goes through five matters, the last of which is:
the underlying purpose of the offence, which is that “breaking and entering” someone’s home before committing a crime is a more serious offence than merely committing the crime, such that the aggravating element of breaking cannot readily be applied to a person who has a pre‑existing right to enter.
So, you have this cascading set of five – they may not be a complete answer, you may not agree with them, but his Honour is at least justifying or explaining how he reaches those conclusions, is he not?
MR ODGERS: Well, with great respect, your Honour, his Honour appears in 79 and 97 to be suggesting, on one interpretation that, even if you have a pre‑existing right to enter, there may still be a break if you use force or go through a locked door. That is the matter I have to confront and that is what I am trying to do. We have two potential answers, because it is not spelt out by his Honour.
One explanation is that his Honour – because there was no use of force or entry through a locked door in the facts of Ghamrawi, his Honour was explicitly avoiding making a statement of principle about that question. That is one interpretation or one explanation for his Honour’s qualifications, that it simply did not arise and therefore his Honour was being careful to state only those principles that had application to the facts of Ghamrawi because that was a case which did not rely on contractual rights or proprietary rights, it relied on permission being given, and the entry was non‑forceful. It was a door that was not locked and his Honour was focussing on that.
But there is an alternative explanation, which also has some attraction, which is that where the source of authority or permission is the consent of an occupant, then the very fact that a door is locked tends to negate that permission or consent. Certainly, if force is used to enter, it seems improbable that there was permission to enter in that way.
EDELMAN J: This is why distinction between a licence and a right of immediate possession – a property right – may be important, because the right of immediate possession conveys a right of entry even if one might need to use some degree of force to enter. But, as a matter of construction of a licence, the licence may very well be limited to allow entry only in a reasonable fashion.
MR ODGERS: And Barker is authority for the proposition – is precisely that point – that the licence that was given to Barker was to enter but only in circumstances where he lacked, did not have an intention to commit a crime. So, if he had an intention to commit a crime, he was acting outside the scope of the licence and therefore outside the scope of the permission. Yes, I entirely adopt what your Honour has said to me. I have just dealt with that aspect of the judgment because, on one interpretation, it is adverse to the appellant in these proceedings and, in my respectful submission, no such conclusion should be drawn.
Moving on to the outline 4(e), we say that there is no basis to infer a legislative intention that commission of an offence under 112 or other analogous offences involving breaking would turn on whether or not an “actual occupant” had given permission to enter, as distinct from the common law test of whether the entrant had authority or permission to enter. We make a number of points to support that proposition.
If you just return to Ghamrawi for a moment, your Honours – I apologise for jumping around a bit – but that was in Part D – there is a useful extraction of the relevant provisions in this area both at the time of the matter before the Honours but also when the provisions were first introduced in 1900 – and that is at appeal book 471 and 472. At 472, your Honours will see these provisions we have been discussing and you will see that at 110, there is a reference to:
any dwelling‑house, or any building –
112(1):
any dwelling‑house or other building –
113:
any dwelling‑house or other building –
The point we make is that “any building” could be a place that is never intended to have occupants, may not be occupied, may never be occupied – but there is nothing that the use of those terms certainly does not seem consistent with a statutory purpose to give some kind of special protection to occupants. At the end of the day, Justice Brereton considered that the purpose of these provisions was to protect the security of occupants. His Honour said that in his judgment – I will not take your Honours to it – but that was the basis of his analysis – the purpose of the provisions is to protect the occupants of buildings.
We say, when you look at the provisions, the offences can be made out in “any building”, which does not convey – and those plainly could include buildings which are not occupied. And, indeed, when you look at the original drafting of 112, for example, it was originally drafted:
any dwelling-house . . . or any school-house, shop, warehouse, or counting-house –
“warehouse” plainly contemplates that it will not be occupied. So, while there is no doubt that the definition of “dwelling-house” does refer to occupation, it does not require that the house, dwelling-house, be occupied at the time of the offence. So, there is some reference to occupation for a dwelling-house, but given that the offence applies to any building, it does seem incongruous to infer that there was an intention to protect occupants. We say the better view is that these provisions were intended to protect the interests of persons with authority or permission to enter and occupy. And that the offences, in essence, aggravate a crime committed in a building if the offender enters as a trespasser.
So, in essence, the purpose of most of these provisions, and certainly 112, is to aggravate the commission of a serious indictable offence on the basis that the crime is being committed in a building where the entry is as a trespasser. That is what we say ‑ ‑ ‑
GAGELER J: Mr Odgers, how do you explain the difference in language between those provisions which refer to “any dwelling-house” and those provisions which refer to a dwelling-house “of another”? Is there a distinction?
MR ODGERS: Your Honour, as I put in submissions before, we say that the omission of those words is to be understood in circumstances where “of another” was in respect of section 109, where it referred to an entry, and did not refer to a break, since it is the word, we say, “break”, which carries with it the element of absence of right or permission. It was necessary to add those words to 109 to prevent an owner being convicted under that provision. And that, as was held in Ghamrawi, that the word “break” brings with it the absence of authority or permission, and that that is the core element; and therefore, the words “of another” are not necessary. And, indeed, the absence of those words reflects the proposition that even an owner, as a landlord, may not have a right to enter, because he or she has, effectively, given a right of sole occupation to a tenant.
EDELMAN J: But the presence of those words does not really require or connote ownership, does it? Because a dwelling-house of another could be the dwelling-house in which the tenant has the right of exclusive possession. So, the owner, in the sense of the landlord, could still enter under, say, section 109 (1); it is the dwelling-house of another being dwelling-house in which another has a right to immediate possession.
MR ODGERS: Yes, I accept that.
STEWARD J: Could I ask a question about function and purpose? What is the difference in function and purpose between 109 and 112(1)(b)?
MR ODGERS: One of the differences between them is that ‑ ‑ ‑
STEWARD J: One has an intention requirement ‑ ‑ ‑
MR ODGERS: The history of it was, you had burglary. And so, 109 was created to deal with a situation where there was no break to enter; and what was criminalised was an entry with an intent, at the time you enter with an intent to commit a serious offence, and you break out. So, created to deal with a problem with the offence of burglary, that was created.
Section 112 does not require, at the time of entry, an intention to commit any offence. So, that is the distinction. So that, as long as you break and enter and then commit an offence – a serious indictable offence – you will be guilty.
STEWARD J: Is there an implied premise that in section 109, you have entered with consent but not in the case of 112(1)(b)?
MR ODGERS: I am sorry, your Honour, I did not hear that.
STEWARD J: I am sorry. Is there some suggestion that in 109, you enter with consent or with a lawful right but, in contrast in 112(1)(b), you not only are going to break out, but you have already broken in?
MR ODGERS: We say that, because 109 was capturing an entry without a break, it was necessary to limit it so that it did not catch a person who was entering their own dwelling‑house. Moving on to the outline 4(f), I have already said this, but we say there is no authority supporting the analysis of the majority or the modified contention advanced by the respondent.
We finally say, in respect of the idea that the actual occupant’s permission trumps any other permission or authority, that it is not an appropriate or stable criterion for the application of serious criminal offences, and it is implausible that the legislature intended such a test. I just want to give four examples which, we say, demonstrate that implausibility.
The first example – and these are taken from the judgements of Justices Fullerton and Brereton in the Court of Criminal Appeal – the first example is one given by Justice Fullerton at paragraph 46 of her Honour’s judgment that, in essence, the example is a tenant is physically ejected by her violent co-tenant, that person would be committing a break if she re‑entered the property by any means contrary to his permission. He is the occupant. He has ejected her. She is no longer the occupant. Query, maybe there is a period of time that has to be involved but, let us say, she goes away and then tries to come back.
That example was given by Justice Fullerton as her Honour implying that there was some kind of potential problem with that but, we say, on the approach which gives final authority to the occupant or an occupant that it is implausible that the Parliament intended that such a person would be committing a break.
Another example given by Justice Fullerton in paragraph 46 was if a party visiting one co-tenant opens a door with the consent of that co-tenant but against the wishes of another co-tenant, it is unclear, on the analysis of the majority, whether an offence would be committed. It raises the question, is the test an occupant, is that enough that an occupant refuses permission or consent so that that would trump even the consent of another occupant? If it is limited to a sole occupant, then you have to determine that, raising difficult questions but, in any event, I will leave that to Mr Game.
A third example – and this was one given by Justice Brereton in paragraph 17 of his Honour’s judgment – he gave the example of an owner/occupier of a house where the owner owns it and occupies it – lives in the house with their child – and the owner/occupier contrary to the child’s wishes and commits a serious indictable offence, then, on the basis that the child is an occupant, that means that the owner/occupier’s entry is contrary to permission of an occupant.
Another, last example was the one given by Justice Brereton which was that an occupant includes a squatter or a former tenant who is subject to an order for ejectment – that is, again, at paragraph 17. His Honour appeared to accept that the consequences of a test turning on the permission of an occupant would have the effect “in fact” – to use his Honour’s language and I will keep with the “in fact” – so even a non‑lawful occupant – that that would have the effect that there would be a break for the purposes of section 112 if there was a lack of such permission.
All these examples, we say, support a conclusion that it is implausible that, in the absence of any authority to support the test in the existing authority that trespass is required for a break – which we have taken your Honours to – it is implausible that Parliament intended that 112 would apply so that there would be a break if there is an absence of permission of an occupant in fact. Those are our submissions in respect of the first issue before the Court.
KIEFEL CJ: That might be a convenient time for the Court to take its morning break, Mr Odgers.
MR ODGERS: Yes, your Honour.
KIEFEL CJ: The Court will adjourn for 15 minutes.
AT 11.07 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.24 AM:
KIEFEL CJ: Yes, Mr Odgers.
MR ODGERS: Thank you, your Honours. Moving to the second issue which we identified at the beginning of the outline – whether section 51(1)(d) of the Residential Tenancies Act qualifies the appellant’s right to enter, I should begin with identifying the right – I know we have discussed that to some extent in what fell from your Honours earlier – but I will just take your Honours to what I understand to be the relevant parts of the appeal books.
Firstly, the actual residential tenancy agreement between the appellant – to which the appellant was a party. It is found in the respondent’s book of further materials at page 6. Your Honours will see at the bottom of page 6 of that book a reference to clause 1:
Standard Residential Tenancy Terms
The attached Standard Residential Tenancy terms and the Tenant Acknowledgement apply to this Residential Tenancy Agreement.
We do not have – so far as I am aware – the actual document that was attached but there is no issue that the “Standard Terms” included conferring a right of occupation on the appellant as co‑tenant.
EDELMAN J: Do you mean a right of occupation or a right to the exclusive possession?
MR ODGERS: Both. If you go to Part B of the joint book of authorities at 302, your Honours will see that the Residential Tenancies Regulation 2010, Schedule 1 created a standard form agreement, so this is what was being incorporated within the agreement with the appellant and – I do not know whether it is “clause” – clause 1 on page 303:
The landlord agrees that the tenant has the right to occupy the residential premises during the tenancy.
GORDON J: That reflects section 13(1) of the Act.
MR ODGERS: It does, your Honour, yes. I think there is also – responding to Justice Edelman – clause 14:
The landlord agrees:
14.1that the tenant will have quiet enjoyment of the residential premises –
EDELMAN J: Yes.
MR ODGERS: And as, your Honour Justice Gordon, with respect, correctly said, section 13 – which is in Part B at 258 – of the Act says:
A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.
So, we say there was a conferred proprietary and contractual right to occupy.
STEWARD J: Do you also want to refer to section 50?
MR ODGERS: Possibly. Probably, your Honour.
STEWARD J: “A tenant is entitled to quiet enjoyment”.
MR ODGERS: Yes, your Honour. Yes, I do. Thank you, your Honour. So, I do not think there is any dispute that ‑ ‑ ‑
KIEFEL CJ: And section 49(2).
MR ODGERS: Yes, thank you, your Honour. I do not think there can be any dispute that if you have a right to occupy premises that implies a right to enter them, because you cannot occupy them unless you enter them. So, we have identified the sources of the relevant right. Then the question, obviously, is whether or not section 51(1)(d) qualified that right and limited it in some – so as to effectively provide that there was no right to enter if the entry was one which resulted in the intentional negligent causing of damage to the premises. Now, section 51 is in Part B at 276. Section 51(1):
A tenant must not do any of the following:
. . .
(d)intentionally or negligently cause or permit any damage to the residential premises –
I just make the observation, which is relevant, that this is a prohibition without specifying any penalty for breach of the prohibition. Subsection (5) says that:
This section is a term of every residential tenancy agreement.
So, it was agreed between the landlord and the co‑tenants that the co‑tenants would not intentionally or negligently cause or permit any damage. We have conceded that the appellant by his entry was in breach of that provision – that prohibition.
In our outline at paragraph (a) we respectfully submit that there is no apparent reason to infer that a breach of the prohibition in 51 was intended to qualify a tenant’s rights of occupation and entry, and we respectfully submit that there are scenarios that tend to support, show, that this was not intended. Our submission is that under the residential tenancy agreement the appellant had co‑existing rights and obligations that had separate spheres of operation. His right of occupation and consequent right of entry had a separate sphere of operation from his obligation not to engage in the conduct prohibited by 51(1)(d). We say that the latter did not cut back or limit the former, we make that submission.
Entry was permitted. Damage upon the premises was prohibited. The fact that the entry involved damage did not make the entry prohibited. The right to enter did not depend on the manner of its exercise. That it is proper to understand these rights and obligations as having separate spheres of operation can be shown, we say, through the following scenarios which reveal the conceptual difficulties with the analysis of Justice Adamson and the argument of the respondent. The first example is as follows: if one were to understand a tenant’s right of occupation to be subject to, in the sense of qualified by section 51, a tenant who failed to undertake the mandatory conduct in subsection (2) of 52, that is:
keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy –
would, at that point – that that state of affairs arose – that is, that it was not in a reasonable state of cleanliness, on the reasoning of Justice Adamson, ceased to be the person occupying the premises pursuant to his or her rights under the lease. The tenant’s continuing occupation would not be lawful, that is, not justified in exercise of a right of occupation under the lease, at least until the state of cleanliness was remedied.
If that analysis were right, such a landlord might allege trespass against such a tenant, or possibly seek to eject them as an unlawful occupant. It should not be accepted that the Residential Tenancies Act intended residential tenancy agreements to operate in that way. Indeed, the Act has provided a detailed scheme specifying the ways in which conduct in breach of an agreement is or becomes actionable. I will come to that shortly.
STEWARD J: Can I ask a question: For the purposes of the Act, is it only the Tribunal that has the power to terminate a residential tenancy agreement prior to expiration of term?
MR ODGERS: I believe that is correct. Yes, I have referred to that in outline (c)(i) that a breach in 51 – that consequences include the termination order by the Tribunal, and that is at section 87.
STEWARD J: So, is it your case that, unless there is an order of the Tribunal, your right of occupation always continues?
MR ODGERS: Yes.
GORDON J: That is subject, is it not, to 79, though, which is the final domestic violence order which brings about an end to a tenancy.
MR ODGERS: Yes, thank you, your Honour. I think that is correct. Where there is a final ‑ ‑ ‑
GORDON J: I said a final domestic violence order.
MR ODGERS: Yes.
STEWARD J: So, there are two things, you either need an order of the Tribunal, or you need what Justice Gordon has referred to.
MR ODGERS: Yes, yes. Mr Game reminds me that section 81 deals with other circumstances in which there will be termination of the residential tenancy.
STEWARD J: And who is doing the termination? Mr Game will?
GORDON J: One of them is that the tenant abandons the premises.
MR ODGERS: Yes, and there are procedures relating to determining that question; I think it is the Tribunal that determines that, that is my understanding. So, it may be that what I said to your Honour is correct, but I am just not certain about that.
STEWARD J: All right.
MR ODGERS: Returning to my examples, or scenarios, the second scenario drawn from 51(1)(c) would be a tenant’s right of occupation would, presumably, permit the tenant to listen to music inside their house but, according to the respondent’s argument, if the music were to exceed a certain volume, such that it interfered:
with the reasonable peace, comfort or privacy of any neighbour –
the tenant would cease to be exercising rights of occupation under the lease and that that conduct would mean that the tenant would cease to be a lawful occupant during the period of time that the music was being played loudly.
If unlawfulness in a tenant’s conduct can arise in this way, we say the tenant may be exposed to consequences – for example, in tort or criminal law – beyond what the Residential Tenancies Act contemplates or provides. That is not how these provisions were intended to operate. We say that a tenant continues in these scenarios to occupy the premises pursuant to the lease but may incur liabilities as a result of acting in breach of his or her obligations. Those examples were focussed on right of occupation, but similar scenarios can refer specifically to entry. I will just give three quick examples.
Firstly, a tenant who, while fumbling for keys at the front door, was singing loudly – loudly enough to disturb the reasonable peace of a neighbour – that tenant would cease to have a right to enter, seemingly until the tenant stops singing. The second example, a tenant who negligently scratches the door to premises while gaining entry would not, on the respondent’s argument, have been acting in exercise of a right under the residential tenancy agreement – the entry would be unlawful because of the negligent causing of damage, since the provision does not specify any level of damage.
Thirdly, and lastly, a landlord could, effectively, nullify a tenant’s right to enter by declining to help a tenant to regain entry if locked out. If the tenant’s only option were otherwise to cause damage to effect entry, the tenant would not be able to lawfully enter the premises – even if willing to remedy the damage, or pay for the damage. A co‑tenant may achieve the same result by changing the locks on another co‑tenant so that the only way to enter would be by causing damage. These are just scenarios which, we say, tend to show that it was not intended by the legislature that a breach of 81 would qualify the right to enter that arises as a matter of proprietary law and contractual law.
Moving quickly through the other points in the outline, 5(b), there is no provision, obviously – not obviously – there is no provision that states that the tenant’s rights are so qualified, nothing – section 81 certainly does not say that. Of course, the question is whether you would imply that but there is no provision in the Act which, we say, indicates that the rights of the tenant to occupy and enter are so qualified.
This relates to the question that Justice Steward raised with me. The scheme of the Act specifies the consequences for breaching 51 and they do
not include a self‑executing qualification of the tenant’s rights. They include a termination order by the Tribunal under section 87, an order for compensation under section 187(1)(d), an order that the tenant remedy the breach under section 187(1)(e), and in respect of a landlord’s obligation to repair damage, if the damage was caused by the tenant in breach of 51(1)(d), then 63(3) provides that the landlord does not have an obligation to repair the damage.
The final points we make are that section 51, the heading and the contents of the provision, is focussed on the use of premises by the tenant, and we just make the simple point that use of premises does not readily extend to entry. Lastly, we make the point that the Act does explicitly regulate, by the provisions in 55, 56, 57 and 59, the rights of entry of a landlord.
So there are detailed provisions relating to that, but nothing in the Act which purports to qualify or regulate or limit the proprietary and contractual right of the tenant to occupy and enter. We respectfully submit that these are all factors which in construing the Act would leave this Court to be satisfied that it was not Parliament’s intention that breach of 51 would necessarily have the consequence that a tenant’s rights of occupation and entry were restricted.
Unless there is anything further, those are our submissions.
KIEFEL CJ: Yes, thank you, Mr Odgers. Yes, Mr Game.
MR GAME: If the Court pleases. Your Honours, I will work through our submissions according to the outline. If you see the first section – I have a frog in my throat as well as Mr Odgers, but anyway. We do not have any major issue with the factual outline given both by the appellant and in Justice Brereton’s judgment, but there are a couple of additional things I just wanted to take your Honours to. If you go to the book of additional material that we have provided, to pages 36 and 37, this is the complainant’s evidence in‑chief. If you look at 36, about line 15 and following, on Saturday the 6th he had taken his remaining property and the keys were returned. We see he had given up occupation at least by then. Then at the top of the page on 37 ‑ ‑ ‑
GORDON J: Sorry, where was that, Mr Game?
MR GAME: I was paraphrasing, but I said his property was gone ‑ ‑ ‑
GORDON J: I see, you were paraphrasing. I understand.
MR GAME: I was paraphrasing. So at the top of 37:
A.Yes, it was only one key to the top deadlock and the garage token. The bottom lock key was missing.
So, the security deadlock, the key had been returned, but not the key on the handle of the door. There is a third lock of some description, but it does not seem to fit. Then the offences take place on the Monday morning.
JAGOT J: In that regard, is section 70 which refers to the landlord’s obligation to make it reasonably secure, but also give the tenant the means of entering – namely, the keys – might suggest that the right of entry which is concomitant upon the right of occupation, is a right to enter via that method, as opposed to causing damage.
MR GAME: Yes, and it is a right of entry for the purposes of occupation under the residential tenancy agreement, and not for any other purpose.
JAGOT J: Yes, not to enter when you are not actually in occupation.
MR GAME: Yes, as a resident. So if you turned it into a dope‑growing house, you would not have the right to enter for that purpose.
JAGOT J: Right of entry for that purpose.
MR GAME: They are separate elements, but they are a composite too.
GORDON J: When you are saying “composite”, what are you talking about?
MR GAME: I am talking about breaking and entering.
GORDON J: Thank you.
MR GAME: So, what you really have is an unauthorised entry by breaking, and a “breaking” is an interference with the physical security of the building. So, they are connected ideas. This idea of trespass, it is better to think about trespass in the context of the entry or the occupation – and I will come to this shortly – but it is not correct to describe a residential tenancy agreement as an exclusive right of possession. It is not a lease in that sense, and again there are a couple of cases that make that clear referred to in our submissions.
So, I will come to that shortly, but that is the first piece of material I wanted to take you to. The second is also in our supplementary book of material. It is from the evidence of the complainant in what is called a domestic violence interview and it starts at page 16 of the supplementary book and then at 18 we see her account. So, on page 18, it starts just before the middle of the page, question 13. He did not have the means of entry. I will not read it out your Honours, but he breaks into the premises against her express desires, we see from that passage, and he does not have the means of entry other than by her consent. Again, I will come to this, but the idea of consent can be overplayed. It is actually – and we agree with the appellant about this – about authorisation, but in this case, consent was the critical thing, but it is actually about unauthorised entry.
GAGELER J: Authorised by who?
MR GAME: By law, and whether or not by the agreement or – by the residential tenancy agreement or by the purposes for which he seeks entry. In this passage here, he is not seeking entries for the purposes of occupation under the Residential Tenancies Act; he is seeking entry for the purposes assault. His purposes are relevant ‑ ‑ ‑
GORDON J: Sorry, you have jumped over that. Can you repeat what you just said then, please. You said it is not for occupation under ‑ ‑ ‑
MR GAME: Not for the purposes of occupation but for the purposes of harassing and assaulting the complainant, and that is relevant to whether or not there is a break.
GORDON J: Then, can I just come back and check – you may be coming to that. In paragraph 3 of your outline you say:
Section 112 may apply where a break and enter is effected by a co‑tenant under a residential tenancy who is not in fact in occupation of the property.
How does that sit with what you just put to us?
MR GAME: So, what I am saying is, if he is no longer in occupation, I am saying that section 112 may apply. That is to say, there may be a break and entering even if he is party to a residential tenancy agreement that has not been terminated. If he is not exercising his rights of occupation under the act, that is to say ‑ ‑ ‑
GORDON J: At what point? So at what point does the Court have to assess that question?
MR GAME: The first question is whether or not the breaking was authorised, and we know that it was not authorised by her. So, we say, is there other basis upon which breaking can be authorised? And the breaking could only be authorised if it was for the purposes of the exercise of his right of residence, not for any other purpose. But he has given up residence. He is no longer a resident.
STEWARD J: We know he moved out, but do we know why he was seeking to enter the property on that day?
MR GAME: We have seen what ‑ ‑ ‑
STEWARD J: Was he trying to retrieve his fish tank, or what?
MR GAME: There was cross-examination about the fish tank, and she said the fish tank was hers and that he gave it to her in lieu of rent at some point. The fish tank is really, shall I say, a red herring. Sorry, that was a terrible joke.
STEWARD J: It is the start of the year.
MR GAME: Sorry. Court rooms are not places for terrible jokes. It is not the case that he was seeking – one has to look at this from the perspective of – I say the evidence as its highest – if there is cross‑examination on the point, that is just by the by, in a sense. It is not suggested on her account that he was entering the premises either for the purposes of residence or for the purposes of retrieving anything because he had already done that on the previous – the last of it had occurred on the previous Saturday, according to her ‑ ‑ ‑
EDELMAN J: Mr Game, I do not want to take you out of turn, but there is an anterior issue which is what are his rights. So, before one can examine by what authority he enters or what conditions there are – and do I take from your introductory remarks that your submission is that he was, under the residential tenancy agreement, a mere licensee ‑ ‑ ‑
MR GAME: Effectively.
EDELMAN J: ‑ ‑ ‑ and that he had no proprietary right – or no right to exclusive possession under that agreement.
MR GAME: That is correct. His only rights are rights of occupation under the agreement according to the Act. So, one has to look at the delimitation of his rights and obligations. One cannot just stop at section 13 ‑ ‑ ‑
EDELMAN J: So, the Act confers no right – no proprietary right – on a tenant in any circumstance. Admittedly, it may bring into it some ‑ ‑ ‑
MR GAME: No, that is correct. We do say that, your Honour. And, again, if I just take ‑ ‑ ‑
EDELMAN J: That would be a radical transformation of the rights of landlord and tenant under the common law if the Act were to have stripped all tenants of any proprietary rights.
MR GAME: Well, your Honour, I will just take you a passage in one of the cases – it is called Case ‑ ‑ ‑
GORDON J: Sorry, I cannot hear you, Mr Game, I am getting old in my age, my hearing is going.
MR GAME: I am getting even older. Anyway, Case is the name of the case and I just trying to find the page on which that is – that is at page 417 of the ‑ ‑ ‑
GORDON J: This is Case v Frimont [2021] NSWCA 30.
MR GAME: Yes, your Honour. So, again, I hope I am not saying anything radical, but what I was seeking to say was in accordance with paragraph 15 of that judgment. Justice Leeming in that says:
As Donald correctly emphasised in submissions, such an agreement is distinct from a lease, and turns on occupation rather than exclusive possession.
Again, that is all I am saying. I am not saying more than that. I will come to some of the sections that we say are relevant to this question quite shortly. That is the factual material, as it were, setting the scene.
EDELMAN J: But that paragraph 15 – what it does not say is – it does not say that the Residential Tenancies Act has stripped those agreements that would formally have been characterised as leases of their proprietary characteristics of conferring an estate in land. I think at paragraph 47 of your written submissions, you appear to have conceded that.
MR GAME: Let me just have a look.
GORDON J: Just to finish that, I think the Chief Justice identified earlier that, consistent with 49(2), which says:
A landlord must ensure that the tenant has vacant possession . . . to which the tenant has a right of exclusive possession –
MR GAME: Yes, your Honour, but I am jumping ahead of myself, but the very parts that we rely upon in sections 49 and 50 – that is to say, the entitlement under the residential tenancy agreement is not to occupation per se, it is to occupation for the purposes of residing at the premises.
GORDON J: But I can have a right of exclusive possession to premises without occupying it, I mean, in the sense of not living there. I might rent it because I like the house and I just want to walk past it.
EDELMAN J: What you are doing, Mr Game, is I think you are confusing a lease and a licence.
MR GAME: I am not confusing it; I know the difference between a lease and a licence.
EDELMAN J: But leases are not concerned with purposes. Your right of exclusive possession is a right of exclusive possession irrespective of the purposes for which you use the land. A licence may indeed be conditional upon many purposes.
MR GAME: Yes, but, your Honour, what I am endeavouring to say is that it is too glib a thing to say that this is a right of exclusive possession and to stop there without looking at what are the rights and obligations under the residential tenancy agreement.
GORDON J: Your point is narrower. You have taken on a bit too much, I think.
MR GAME: I think I have, but anyway ‑ ‑ ‑
GORDON J: I mean, in the sense of ‑ ‑ ‑
MR GAME: My point is that you cannot just say this is a right of exclusive possession.
GORDON J: You accept they have got a right of exclusive possession, you just say it is a possession for a purpose.
MR GAME: Well, yes, I will accept – your Honour.
STEWARD J: Assuming that is right, though, what does that mean if you cease to hold the purpose? Are you limited to the remedies that the Act prescribes such as going to the Tribunal and the landlord saying, well, he is not living there anymore, or he is using it for a business purpose or whatever it is, please terminate the lease, or do you say that there are self‑executing legal consequences?
MR GAME: I am not talking about any self‑executing consequences. All I am saying is that at the time he breaks into the premises by force for the purposes of assaulting his girlfriend he does not have any legal entitlement to be on those premises because his purpose in being on those premises is not for the purposes of occupation, it is for some other purpose ‑ ‑ ‑
JAGOT J: So, the only way to get there is with her permission, as the occupant.
MR GAME: Yes. So, our argument is this, in this case, that all that is left – and it is kind of a – it puts quite different emphasis on the way in which Justice Brereton – and what we say is that all that is left is her consent, there is no other way in which he can obtain access to the premises.
GLEESON J: Could he have been sued for rent?
JAGOT J: Which means you need your notice of contention. You are going through your notice of contention to that.
MR GAME: That is right. Yes, your Honour. That is our argument. So, it is quite correct ‑ ‑ ‑
GORDON J: Can I just ask one question about that. Does that mean that he has, for the purposes of the Residential Tenancies Act abandoned the premises?
MR GAME: Yes, it does mean he has abandoned the premises.
GORDON J: So that means that there is a conclusion to be drawn by the Court under 81(4)(d) that he has abandoned the premises?
MR GAME: That is what we say, yes. It should be remembered she is now paying all of the rent and has been for some time.
GLEESON J: But is he liable to pay the rent?
MR GAME: Well, this is part of our submissions which we took out in respect of whether or not there is a side agreement, but we would say he is not obliged to pay the rent because she has now assumed that liability, so we say he is not obliged to pay the rent at that point.
EDELMAN J: Mr Game, I understood that Mr Odgers’ submission to have been that before the primary judge it was conceded that there was no abandonment. Is that correct and, if so, is that concession now being revoked?
MR GAME: I think there was a complete misunderstanding of what – all that was being argued – I think that is correct, what your Honour has put to me. It is not correct – we say, there has been an abandonment of the premises by him. But that is by agreement with her.
KIEFEL CJ: You are not relying upon the Residential Tenancies Act abandonment.
MR GAME: I am not relying on the – no, I am relying on the relationship between the two people.
EDELMAN J: So, vis-à-vis the landlord – to answer Justice Gleeson’s question – he would still be liable to pay rent.
MR GAME: I suppose, yes, but he would have a set‑off against her because she has assumed the payment ‑ ‑ ‑
KIEFEL CJ: He cannot be sued for it because she is paying it – that is what it comes down to.
MR GAME: Yes.
KIEFEL CJ: But the tenancy agreement is extant ‑ ‑ ‑
MR GAME: Yes.
KIEFEL CJ: ‑ ‑ ‑ and if she did not pay the whole of it, he would be obliged, remains obliged.
MR GAME: Yes, your Honour, but as between him and her, he is no longer obliged to pay the rent and that is because she is in occupation, and he is not and that is an agreement that they have reached between the two of them.
KIEFEL CJ: But for the lack of legal authority, you have to rely on the statute not on a personal relationship.
MR GAME: I do, I do, your Honour. Yes, I do rely on the statute. That is why what I am saying is this – the statute gives him a right of occupation, but it is a right of occupation for a particular purpose.
KIEFEL CJ: For the purpose of residence.
MR GAME: Yes. That is not what he is seeking to exercise – that is not what he is seeking to enter for the purposes of. That, ultimately, becomes – and so 51(1)(d) feeds into that – and it is not to the point to say there are these other breaches but he is not – she is entitled to protect her own safety. He is outside – he wants to get in. He does not have a key to get in – he does not have all of the keys to get in because he had returned the security key. She is entitled to ‑ ‑ ‑
KIEFEL CJ: He has returned them because he no longer has a purpose of residing there.
MR GAME: That is right, exactly. He is not residing there. So, the only way he can get into the premises is by her consent. But it is a mistake to put “consent” up the top of the whole thing – it is just that that is the end that you land at in this case.
The appellant is correct in saying, entry without authority. But the question is, where does the authority come from? So, we would rephrase – and we do not go the whole way that Justice Brereton does about squatters. That is going far too left‑field in terms of what is actually involved in this case. One can ground it, we say, in the rights and obligations that sit under the legislation itself. That is our argument.
GORDON J: Can I ask a question about prosecuting an offence in those circumstances ‑ ‑ ‑
MR GAME: Yes.
GORDON J: ‑ ‑ ‑ and the difficulty of identifying what constitutes, in your language, was not, in fact, occupation of the property and the things identified by Justices Fullerton and Brereton as difficulties with that sort of analysis. Are you going to come to those?
MR GAME: Yes, there can be difficulties with that analysis, and so there is a problem. We say this is actually a quite straightforward case but those examples are much more difficult examples that show that there are problems with pushing it too far.
GORDON J: So, how do you know?
MR GAME: We say that you have to ask yourself the question, did it satisfy the description of a break? Was this an entry without authority? And that is where the idea of a trespasser comes in. And you find the answer to that grounded under the legislation and not elsewhere is, how we say.
GORDON J: Under the Tenancies Act?
MR GAME: Yes, your Honour.
GORDON J: But here you say one puts to one side that legislative framework in substantial part because one ignores the framework that exists there for otherwise determining that very question under the civil system and adopt a different system in the criminal law by asking, by facts, had they, in effect – what about a different regime, or the same result by a different regime?
MR GAME: Well, your Honour, as I say, we say this case is not a difficult case just because the circumstances are straightforward. He is no longer in residence. He has relinquished the thing that would have enabled him to obtain entry to the premises. And that is not a difficult case in terms of ‑ ‑ ‑
GORDON J: I think my concern is more profound.
MR GAME: One can see very good reasons for – as I understand it, this kind of case or similar cases is quite common, so there could be problems in allowing people to fight out in courts over very finely distinguished cases of the kinds of examples given by Justices Brereton and Fullerton.
But, in a case like this, where manifestly he is not seeking to use the premises for residential purposes, he is only seeking entry against consent for the purposes of assaulting the current lawful occupant of the premises. We say that is all one needs to know factually about this case for it to work. Again, we say it is beside the point that these remedies might only be enforceable in a tribunal. It is beside the point because these things do not give him a legal entitlement to do these things, is the short answer to the whole thing.
GORDON J: One of the answers may be, and I think some of the judgments refer to this, the fact that – and you accept that pushing it has difficulties in some of the examples identified by Justices Fullerton and Brereton, but one can imagine that one could throw the book in relation to the criminality of this conduct more generally and he would attract additional time, given the circumstances, because it is entry into a home.
MR GAME: The entry into a home is an aggravating factor but, under the legislation, the entry into a home would not be an aggravating factor if he is convicted of this offence, because it is part of the offence.
GORDON J: I get that.
MR GAME: So, it would be caught one way or the other, your Honour.
GAGELER J: Mr Game, this is my problem, that I am confused about how much, if at all, you support the reasoning and conclusion of Justice Brereton? I am looking at paragraph 28, for example.
MR GAME: I do not support the examples given in respect of – so, can I just say, we would read – my short answer to this is we do not base our argument upon a principle concerned with consent. We base our case on a principle concerned with authority to enter; but we say that, in this case, that all that could be left to give that authority would be her consent.
GAGELER J: I had a lot of difficulty understanding it, but is it – he is talking about, at paragraph 28, where he summarises his opinion, he is talking about the consent of the occupant in fact. Now, I understand, you would say, it has to be the current lawful occupant; and you say, for some reason, you use the word “authority” instead of “consent”.
MR GAME: No, I used that for a reason because, say one used the argument – let us say, used the idea of claim of right – or if that is the idea, but this whole question does not – I agree, that this whole question does not turn on whether or not an occupant in a particular case consents per section, I agree with that. But I say that in this particular case it is crucial and it is crucial because of the antecedent circumstances and where it lands with him trying to get into the house, into the premises, to assault her, and her resisting it by all means possible. And we say that, at that point, the only way you can get into the house is by breaking it down; so, he does not have authority to do that, that is the first thing.
GAGELER J: Can I test it, Mr Game, in this way: just change the facts slightly, assume they are not co-tenants, they are co-owners; otherwise, the scenario is exactly the same.
MR GAME: If they are co-owners, the example is exactly the same if the co-owner is returning to assault their partner; not to return for some other legitimate purpose. It is not going to work unless you have an indictable offence committed anyway; you have to have broken into and commit an indictable offence. So, somebody coming home and breaking in per se, that is not going to work as a break.
EDELMAN J: It is under 111. So, under 111, on your view, the co-owner who comes in ‑ who returns home with an intent to commit an offence but then decided later not to commit the offence has still committed the offence.
MR GAME: That is correct.
EDELMAN J: It is a thought crime.
MR GAME: No, it is the person who enters for the purpose of committing a crime.
EDELMAN J: Enters their own house for the purposes of committing a crime that they decided not to do; the only element of that is a thought crime.
MR GAME: If the person is a joint tenant or a tenant in common – proprietor of the premises ‑ enters the premises for the sole purpose of assaulting their partner, we say that would be an offence under section 111, yes.
GLEESON J: So, what if you added that the accused had changed his mind and decided that he did want to live there? So, he breaks in, he assaults his partner, and then goes to sleep in the room, claiming that the right to live there under the residential tenancy agreement.
MR GAME: Well, technically, he committed the offence, but he has abandoned the offence quite quickly; but I would have to concede that, we would say, technically, he commits the offence, but ‑ ‑ ‑
KIEFEL CJ: Mr Game, does not section 111 assume that the offence that is intended is committed, because if you look at the aggravated offence under subsection (2), it assumes that that has occurred.
MR GAME: I am not sure about that, your Honour, but the aggravated offences are defined back at – so you could enter armed with an offensive weapon with intent to commit an offence, so it does not necessarily require a completed further offence. But part of my answer to your Honour Justice Gageler’s question is that for a section 112 offence you cannot get there unless you are committing a serious indictable offence.
So, our way of approaching this is to say that the break and enter is an unauthorised entry by breaking, which is by breaching the physical security of the premises, and then the commission of a serious indictable offence is made out, and it is made out regardless of the fact that the person has a right to occupy the premises for residential purposes, which they are not seeking to exercise at that time. That is all there is to it from our perspective.
GAGELER J: But the difficulty is in the content of your word “unauthorised”. Whose authority? What kind of authority are you talking about?
GORDON J: I had another thing – when?
MR GAME: It is at the moment that he comes to the house and starts kicking on the door is when the offence commences, and the offence is completed after he has completed assaulting the complainant.
GORDON J: Do you have to get the consent of all tenants, all other tenants?
MR GAME: No, your Honour, but the point is this – and I have said this before – it is not a question of the – the principles do not turn on consent.
GORDON J: Well, take it away. Whose authority do you need? Do you need to get authority of all the other co‑tenants? That is why the temporal question is interrelated with it.
MR GAME: From the submissions that I put, the temporal question applies, as I say, at the moment in which he commences seeking to enter the premises. Is the entry – I was using the word “unauthorised”, but he does not have any legal entitlement to ‑ ‑ ‑
KIEFEL CJ: I was going to say, why are you using “authority” instead of “entitlement” or “right”?
MR GAME: Or legal entitlement. He does not have any legal entitlement to enter the premises by the means in which he did or for the purposes which he did, and that captures both – he has no legal entitlement to do either of those things. Having done both of them, we say he has committed the offence of breaking and entering because he has no legal – so it is – there is no legal entitlement in this that ‑ ‑ ‑
JAGOT J: If all the facts remain the same but the door was unlocked, you are still going to not for the purpose of occupation, and he has relinquished his right of – all the facts are the same, he goes there and the door is unlocked and he opens the door and enters, is that a break and enter?
MR GAME: The door is unlocked but he opens it, yes, it is.
JAGOT J: It is still a break because ‑ ‑ ‑
MR GAME: It is still a break and enter.
KIEFEL CJ: Because the door is closed.
JAGOT J: The door is closed.
MR GAME: Because the door is closed, he has breached the physical security.
JAGOT J: The security of the house. So, it might only be different if the door itself is open.
MR GAME: If the door is slightly ajar, yes.
JAGOT J: Yes, okay.
GAGELER J: So, Mr Game, conceptually the way you put it is that there is a justification in a case of legal entitlement?
MR GAME: Yes, that is the way I put it. I do not want to completely dissociate myself from the judgment of Justice Brereton, but the way in which we are putting it is not the same but the outcome, we say, is the same. It is unfortunate that the focus comes onto the idea of consent because that shifts the question into a different place than where it needs to be ‑ ‑ ‑
GAGELER J: It is a little confusing even to follow your outline. This is not meant to be a criticism, but you are frequently invoking Justice Brereton’s reasoning in support of the steps in your quite different reasoning.
MR GAME: Well, I am ‑ ‑ ‑
GAGELER J: But that is by the by, if we understand what your argument is, thank you.
MR GAME: Anyway, that is what we say.
GORDON J: Sorry, can I just ask you about paragraph 3 because I do not know who in fact in occupation of the property – that is not really your test, is it? Your test really is ‑ ‑ ‑
MR GAME: No, that is just an example, it could be, 3 is just it could be.
GORDON J: No. Well, I am asking about what you are now putting forward as your test for what we are going to be using, or you would have us use, and it will be – is effected by a co‑tenant who has what, no legal entitlement to enter ‑ ‑ ‑
MR GAME: Other than for the purposes of residence, which has not been exercised.
GORDON J: So is that to say that if they wish to enter for residence, so if he had broken down the door and tried to get in because he wanted to occupy it for residence he is not breaking and entering. That would have to be the logical consequence of the submission, would it not? So, his subjective intention is, I am breaking and entering because I actually want to live with this woman again.
MR GAME: Well, I think I have to accept that, yes, your Honour.
GORDON J: Okay.
STEWARD J: Is your principle a bit broader, though, because that is the test you would say for this Residential Tenancies Act, but is your principle as broad as that there is breaking and entering when you physically enter without lawful justification?
MR GAME: That is our argument.
STEWARD J: Yes. I see.
MR GAME: If your entry is without legal justification – and I have used the word “unauthorised”, that is what I mean to say – unauthorised entry by something that satisfies the description of breaking, then you have committed the offence. That is our principle.
STEWARD: And in this case – leave aside the purpose of entry – he had no lawful justification to break the door down.
MR GAME: That is correct. That is our argument.
JAGOT J: So, on that argument – your primary argument – I mean, you said 51(1)(d) fed into it, but it really does not, because it is enough not to have the purpose. So it is different, really, from 51(1)(d) as well, is it not? It is different from Justice Adamson’s read.
MR GAME: Well, it is different from Justice Adamson. Yes, I have to accept that. It is different from Justice Adamson. What we are putting is more than is put by Justice Adamson, but we do rely on the breach of 51(1)(d) because at that point he has no entitlement to – it is a significant aspect of it that he breaks the door down.
JAGOT J: Well, yes, but the answer to my last question was even if he had not broken the door down, you would still get there on purpose, if the door was closed.
MR GAME: Yes, but the breaking of the door down is kind of evidence of lack of authorisation.
JAGOT J: Yes, I know. I understand that, but it is not actually an essential part of your reasoning process, 51(1)(d).
MR GAME: That is also correct. I will run through these points, but paragraph 4 – I will not take you through all of these old authorities, but the common law offence did make it require that the dwelling be “of another” and we can see that from Archbold and other old texts. If you dig further ‑ ‑ ‑
KIEFEL CJ: Mr Game, if I might interrupt you there. You have heard the discussion in about section 109 and 112 and the distinction between them. What do you say? How do they cohere?
MR GAME: Well, your Honour, I will come to that in one moment. But if I could just say the other point I was – I will come to that in one moment. The point I was going to make about the requirement “of another” is if you look more closely at what was required “of another” the “another” was a person in occupation. That is of significance because the Commonwealth position was much more closely aligned to the way in which it is being expressed by Justice Brereton in respect of the position of the occupier. It has been suggested that it is actually quite close. The emphasis was on the position of the occupant.
EDELMAN J: And by occupier do you mean person in physical occupation, irrespective of any right?
MR GAME: Yes, I do mean – that is what the old cases say.
EDELMAN J: So, a trespasser, or even a burglar who might be in physical occupation, would satisfy that requirement?
MR GAME: No, your Honour, it is lawful occupation. And there are some very strange twists to this one, is that a married woman would not be an occupier because her husband was the occupier and so forth, but it is in lawful occupation. It is not a person in unlawful occupation.
EDELMAN J: So, you do not mean just a person in physical occupation?
MR GAME: No.
EDELMAN J: You mean in physical occupation with a right to be present?
MR GAME: Yes, your Honour. That is what these texts say.
GAGELER J: Are you now supporting Justice Brereton?
MR GAME: No, I am not. What I am trying to say, your Honour, is that if you look at the history of the thing, and the words “of another” have gone, it somewhat detracts from the idea, we would say, that bare title suffices because the emphasis is on the position of the person who is in lawful occupation of the premises.
GAGELER J: Who is in fact in lawful occupation of the premises.
MR GAME: Yes. So, if I come then to your Honour the Chief Justice’s question. If you look at page 45 of the joint book of authorities ‑ ‑ ‑
EDELMAN J: Just before you go to that, I just want to completely understand what you mean by the dwelling‑house “of another”. You say that that is – the “of another” means that that “other” needs to be in physical occupation with a right to be present and it does not matter where that right comes from as long as it is a lawful right.
MR GAME: The offence required identification of that person – the indictment required it.
EDELMAN J: So, an owner who enters their own house in which another person is a mere licensee but is there with just a mere contractual right to be in occupation, that owner is then entering the dwelling‑house of another?
MR GAME: It would depend on their purpose in entering, but it is possible, yes. It would depend entirely on their purpose.
EDELMAN J: So, whether a dwelling‑house is “of another” brings purpose in as well.
MR GAME: Yes, your Honour, and it brings in part of the issue about justification – as do the old – there is also a category about constructive breaks and that category also brings in this idea of authorisation. So, if I go to page 45, what that was is the legislation as it stood in 1900. Section 108 was the old crime of burglary which was “of another”. Section 109 was:
enters . . . with intent to commit felony –
That was 102, but if you look at 112, from 1883 that was 106 and 107. That is when it had dropped‑out some of the breaking‑out requirement. That 112, in effect, becomes the driving provision. So, in 1974, when this legislation was amended, it was amended to take out 108 because 108 was regarded as surplus in the light of section 112. That is what the Law Reform Commission said as the reason – they called it deadwood. So, if you go then to 112, what has gone – and what had gone by 1883 – was reference to dwelling‑house “of another”. So, our point about it is that – sorry, section 109 maintains – you can see that is a carry‑over. Section 109 maintained the proposition entering:
the dwelling‑house of another –
How significant is – I would not want to over‑emphasise the significance of it, but ‑ ‑ ‑
KIEFEL CJ: You are saying that 109 is just an historical remnant.
MR GAME: It is pretty much, yes. The point of this is that, we would say, there is no legal impediment to a person in the position of the appellant here if, despite his holding the lease, he does not have a legal entitlement at that moment of entry to enter the premises. His legal entitlement is to be found in the rights and obligations that he has under the Residential Tenancies Act – that is how we put the argument. That is what we say about those provisions which are dealt with at 5.
Our argument is the legislation does not create an impediment. You have to ask yourself: was there a legal entitlement? If there was not, then we have a break‑and‑enter. We can conceivably have a break‑and‑enter despite the fact that the person is in the position described back in paragraph 3. We also say – and I think I have already said this – that one does not look at section 13 of the Residential Tenancies Act in isolation. One has to look at what is the entitlement under the residential tenancy agreement, and we have referred to sections 49 and 50.
Section 51 – our constraints – section 51 does provide constraints on what can be done, so it is relevant that there is no legal entitlement to break the door down. And, if you cannot break the door down, you cannot obtain entry. That is to say, it is manifest of the fact that he is not seeking entry for the purposes of occupation, otherwise why would he have given up the keys? It is not just 51(1)(d), it is also 49 and 50 that fill this thing out. That is – I would have to say I accept – a further step beyond the way in which it is put by Justice Adamson.
I will just refer your Honours to – Mr Odgers has taken you through Barker v The Queen, and I appreciate that it is a case concerned a licence, but it is important for our purposes that entry for one purpose may be authorised, although entry for another not, and that is all we seek to draw from it.
So that, in that case, the entry was for purposes of minding the person’s property and they exercised a different purpose.
EDELMAN J: And what about mixed purposes?
MR GAME: That is bad from my argument if there are mixed purposes. I think that defeats my argument if there are mixed purposes. So there has to be no legal authority, that is to say.
EDELMAN J: I think that is what Justice Keane and I said in Roy v O’Neill as well.
MR GAME: Anyway, I would accept that. So, we might have problem if he was going back that day to collect the rest of his goods. And she said, not today, it is going to be next week. But that is not the facts as we have seen. And I have really said what I want to say about why it is not critical against us that these rights and obligations can only be enforced by a particular means, because we are asking questions here about whether or not he has a legal entitlement to do what he did, and the rights and obligations given under the Act throw that up.
At the risk of landing myself in further difficulties I got into at the beginning, it is glib to just describe it as a right of exclusive possession. You have to go into the details of what that means in this particular case under the legislation – under the hard words and language of the legislation. I appreciate well that a reticence to go into any of the speculative examples or the idea that a person can give consent or not consent. That does not seem to work as a set of principles. But we say that there is an answer to this case, and it is in fact a fairly straightforward one just because of the confines of the evidence in this that I have taken you to.
GORDON J: The problem I have is where I raised with you earlier, Mr Game, that if one accepts what you just put to us, then the ramifications of it are unexplained and at large, which is what Justice Fullerton and Justice Brereton were really pointing out.
MR GAME: Yes, but I am saying to change the analysis from an analysis about consent into an analysis about legal entitlement and you will come up with an answer for this case and you will not be troubled by the troublesome cases.
EDELMAN J: On one view, Mr Game, prior to the Residential Tenancies Act, the way the common law might have been seen as working is that a writer of exclusive possession under a lease was not concerned at all with purposes, but a person might get a right of occupation under an instrument
which gave the so-called landlord an entitlement for, let us say, once a month to come in for a weekend, to stay there for a weekend, which would mean it would only be characterised as a mere license rather than conferring the property right of a lease.
On one view, the Residential Tenancies Act is trying to encompass the full gambit of rights of occupation, stretching from the true rights of exclusive possession right through to situations where there are not always rights of exclusive possession but there are rights of occupation; but it is not necessarily bringing in all of the purposes that come or constrain a license into those rights which would be leasehold rights of quiet enjoyment.
MR GAME: But, your Honour, we would say that the most important constraint on possession here is that – I mean, possession in fact – occupation is for the purpose of residence and for no other purpose. So, for example, if under the Act the person – and there are lots of reasons for that. One is local government legislation that certain premises can only be used for residential purposes, and so forth. So, occupation for any other purpose is not legally authorised. That is our point, and that is the principal constraint. It may well be that we need – I am prepared to accept that.
GLEESON J: So really your argument comes down to section 13(1), does it not?
MR GAME: With 13(1), coupled with what it then picks up under 49 and 50. There are other things in our outline, but I think I have said most of the things that I wanted to say. What sits in paragraph 14 factually, your Honour Justice Gordon, is a better description of what we say is the circumstance that is caught in this case.
GORDON J: Well, you have to add purpose into that descriptor. It is missing that additional element.
MR GAME: It is missing that, yes, it is. I may not have answered all your questions, but those are our submissions, if the Court pleases.
KIEFEL CJ: Yes, thank you, Mr Game. Any reply, Mr Odgers?
MR ODGERS: It appears that the respondent does not rely on Justice Brereton’s analysis, does not rely on Justice Adamson’s analysis, and has now postulated yet again a new way of concluding that there was a break in this case and it turns, as I understand it, on the proposition that there is no lawful entitlement of this co‑tenant to enter because of his purpose at the time of entry. That seems to be the nub of the argument. As I say, it was never argued at first instance. It was not argued in the Court of Criminal Appeal. It is now being argued today for the first time. With
respect, there was no finding as to the purpose of the appellant at the time he entered. It was not an issue raised by the Crown.
EDELMAN J: Is section 13(1) of the Residential Tenancies Act concerned with purpose at the time of entry or is it concerned with the purpose of the agreement?
MR ODGERS: The latter, is my submission, your Honour. We say that there is actually nothing in the Act which supports the proposition that the right of occupation is qualified in the way that the respondent now contends.
We say – and this is the last thing I will say – is that the right of occupation and the consequent right of entry is to be understood as a proprietary and contractual right, and that there is no proper basis upon which it should be concluded now – for the first time, as I understand it, not in these proceedings but as a general principle – that, for example, an owner – presumably, on this analysis – commits a break where they enter for a purpose other than to occupy – let us say a purpose of committing a criminal offence and then to scarper – that owner is committing a break according to this analysis.
But, putting the owner to one side, it said that the tenant under the residential tenancy agreement is committing a break because of the state – their purpose at the time of entry, and we say that is just an inappropriate and seriously problematic way of approaching these issues.
May it please the Court.
KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.
AT 12.37 PM THE MATTER WAS ADJOURNED
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