BA v The Queen - [2022] HCATrans 111

[2022] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S156 of 2021

B e t w e e n -
BA
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KEANE J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 17 JUNE 2022, AT 10.37 AM

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR S.J. ODGERS, SC appears with MS K.J. EDWARDS and MS E.S. JONES for the applicant. (instructed by Legal Aid NSW)

MR H. BAKER, SC appears with MS L.A. COLEMAN for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

KEANE J: Yes, Mr Odgers.

MR ODGERS: Yes, thank you, your Honour. The applicant seeks an extension of time in this matter. Your Honours, there was a short delay.

KEANE J: Mr Baker, is that opposed?

MR BAKER: Not opposed, your Honour.

KEANE J: You have your extension, Mr Odgers.

MR ODGERS: Thank you, your Honour. The question raised by this application is whether a person with a legal right to enter a building can commit the break element in break and enter offences. It is common ground between the parties ‑ ‑ ‑

KEANE J: That is a legal right against the owner of the building or against the other occupants?

MR ODGERS: It could be an owner has a legal right to enter. The owner could confer a right on someone else to enter. An occupant could grant legal rights to others to enter ‑ ‑ ‑

KEANE J: In this case, of course, you do not suggest that the occupant had conferred that legal right to enter?

MR ODGERS: The occupant in fact – to use Justice Brereton’s language – the evidence was that she had not given permission to the applicant to enter. But the question, of course, raised by this application is whether what was accepted by at least the majority of the Court of Criminal Appeal that the applicant did have a legal right to enter, deriving from his tenancy, whether that meant that he could not commit a break for the purposes of the offence with which he was charged.

As I say, it is common ground between the parties that the element of breaks in section 112 of the Crimes Act imports the common law principle that there is no burglary if there is authority or permission to enter the building. So, there is no break if there is permission or authority to enter. That has been the settled position in New South Wales, and it was accepted by all members of the Court of Criminal Appeal.

The issue in dispute is whether that authority or permission may derive simply from a legally recognised right to enter, or whether, as held for the first time by the majority of the Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCATrans 111
Decision Date

CaseChat Overview and Summary

The applicant, BA, was convicted of a number of offences, including sexual offences, and sentenced to a term of imprisonment. The applicant appealed against his conviction and sentence to the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal dismissed the appeal. The applicant then sought and was granted leave to appeal to the High Court of Australia.

The High Court was required to determine whether the trial judge had erred in admitting certain evidence, specifically evidence of the applicant's prior sexual misconduct. The applicant argued that this evidence was unfairly prejudicial and should not have been admitted. The High Court also considered whether the sentence imposed was manifestly excessive.

Gleeson J, delivering the judgment of the High Court, held that the evidence of prior sexual misconduct was admissible. His Honour reasoned that the evidence was relevant to establishing a common pattern of behaviour and was not merely character evidence. The High Court found that the trial judge had properly directed the jury on the use of this evidence, and that its admission did not give rise to a miscarriage of justice. Regarding the sentence, the High Court found no error in the Court of Criminal Appeal's assessment that the sentence was not manifestly excessive.

The High Court dismissed the appeal.

Orders