BA v The King

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

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

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

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