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

Copyright in the High Court of Australia

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 Criminal Appeal in this case, the authority or permission must come from the actual occupant, or the occupant in fact – to use the language of Justice Brereton – of the building.

EDELMAN J:   Mr Odgers, you might be stating the position a little bit too broadly.  The position may be that the break can occur where an entry occurs with permission but contrary to conditions, express or implied, that are imposed upon that permission or licence.

MR ODGERS:   Yes.  I accept that, your Honour, and I would say that that falls within the broad concept of whether or not there is permission or authority to enter, because there may be conditional permission, or conditional authority, and of course if you are not complying with those conditions then you do not have the permission or authority to enter.

GLEESON J:   Could those conditions include conditions about the manner of entry?

MR ODGERS:   Yes.  Yes, and of course, one member of the court took the view that, because there was a tenancy agreement in place which imposed obligations on the tenants about how they did various things, that that had flow‑on consequences for the right to enter, the legal right to enter.  Of course, the majority did not accept that, and did not accept – sorry, the majority accepted that there was a legal right under the tenancy agreement for the applicant to enter.  What the majority held was that, notwithstanding that legal right to enter, even though, perhaps, there was a breach of the tenancy agreement in the way the entry occurred ‑ ‑ ‑ 

EDELMAN J:   But, Mr Odgers, even in relation to the minority position, the conditions upon entry would be conditions vis-à-vis the lessor and not conditions vis-à-vis the co‑tenant.

MR ODGERS:   Yes.  That is true, I accept that.  But, in any event, we would say that is another reason why the majority was correct to hold that there was a legal right for the applicant, under the tenancy agreement, to enter the premises.  Where Justice Brereton, we say, moved to a radical new position was to hold that, notwithstanding the fact that, heretofore, the view was that, under the common law – and we say, reflected in the requirement for break – that if you had a legal right to enter, you could not break, Justice Brereton held that, on a basis that was not advanced by the Crown, we would say, in the Court of Criminal Appeal, and was not even raised at the hearing of the appeal, that even if a person had a legal right to enter, there would still be a break if the occupant in fact did not consent to the entry.  Justice Fullerton agreed with that ‑ ‑ ‑ 

KEANE J:   When you say, “the occupant in fact”, you are describing the person in possession and with the right to possession, and the best right to possession.

MR ODGERS:   Your Honour, I am using the language of Justice Brereton, and, of course, our position is that this change to the law was – that his Honour was – it was an erroneous step and there is no – no authority to support it, and we say that there are public policy reasons why it is an erroneous decision.  I can only say to your Honour - Justice Brereton came up with that test.  I am not entirely – one of our problems with it is, we respectfully submit, that it is somewhat difficult to work out exactly what it means and how it is to be applied.

EDELMAN J:   Well, at paragraph 28, read literally the test would not be restricted in the way Justice Keane suggests.  It might extend to any occupant whether under a lease or a licence.

MR ODGERS:   Quite.  Indeed, Justice Brereton explicitly stated that a squatter could be an occupant in fact and could have, by refusing permission to the owner to enter, that would have the effect that if the owner breaks - opens the door, that owner is committing a break.  Justice Brereton also postulated that somebody who was a tenant, but the tenancy had come to the end, and was being – that was seen as an ejectment – that person could still be an occupant in fact. 

So, we are not sure of the scope of the concept, but we do respectfully submit that it raises a whole series of difficult factual and legal problems for which, as I say, there are no authorities to support it.  Justice Fullerton agreed, at application book 35 in paragraph 40, with what Justice Brereton had held.  At the top of the page, the question was whether the:

respondent’s entry . . . occurred without the express or implied permission of his former partner as the person in continuing occupation of the premises –

referring to being a “co‑tenant”, but then also appears to have diverged from Justice Brereton at paragraph 41, where, in the middle of that paragraph, her Honour says:

it is the scope of the permission, express or implied, of those either in occupation of the premises or those entitled to occupy those premises –

Now, it is difficult to understand the reference to entitlement to occupy since this applicant was entitled to occupy the premises.  If Justice Fullerton was referring to a situation where there is no person actually in occupation, this raises the question of whether a joint tenant would commit a break if another joint tenant is not in occupation – denied permission to enter – which is not an uncommon situation in domestic breakdown – and if this judgment stands, it will have to be the kind of issue that will have to be resolved in the lower courts.

We say it is not satisfactory that the positions of Justice Brereton and Justice Fullerton appear to diverge and then will present real difficulties for lower courts seeking to apply the judgment.  But, in any event, focusing on Justice Brereton’s formulation – or his approach – raises real questions of general importance with potentially far‑reaching implications, not only for offences under section 112, but for all the offences in Division 4 of Part 4 of the Crimes Act , and as well as breaking offences in other Australian jurisdictions – and there are other jurisdictions in Australia which have the element of break.

Questions that arise include the following.  Given that the common law operated to preclude a burglary where the person had a legal right to enter, and there was agreement that the term “break” imports the common law analysis, how can this dramatic change – unsupported by earlier authority – be maintained?  If it is maintained, and one tenant can negate another co‑tenant’s legal right to enter by forcing out the co‑tenant, taking sole occupation in fact, this has real implications in cases of domestic breakdown where a vulnerable party is ejected from the home by the other party and wishes to return – to recover personal items, or for some other legitimate purpose – and then becomes involved in some kind of criminal offence.

Equally, if the occupant in fact can negate another person’s legal right to enter, what are the implications for cases where the occupant in fact has no legal right to occupy the premises – as in the case of the squatter, which is the example I gave before – or the tenant who remains in occupation after an order for ejectment.  These are all issues raised now by this majority judgment of the Court of Criminal Appeal and we say that the issues are of such general importance that this honourable Court should consider the issue for itself.

Justice Brereton referred to legislative purpose in support of what we say is this radically new test, saying the purpose of these provisions is to protect the security of the occupants of dwelling houses.  But such a statement of purpose does not explain why the provision should be thought to protect the security of one occupant over the security of another occupant, where the rights of each occupant are the same – they are both lessees – or, to put it another way, why occupation in fact should be given primacy.

We submit in conclusion that this new test is unsupported by authority – is likely to prevent great difficulties in determining whether a person is the occupant in fact – particularly in cases of multiple occupants – will tend to produce arbitrary outcomes, and is likely, on occasion, to produce clear injustice.

I would also point out that this new approach is quite unnecessary in that persons who commit offences against actual occupants or occupants in fact such as assault and intimidation can be prosecuted and dealt with for those offences – that is what happened in this case.  The applicant pleaded guilty to offences of common assault, intimidation and destruction of property and was dealt with for those.  Where such offences occur in a victim’s home, as in this case, that is a matter of statutory aggravation for the purposes of sentencing as occurred in relation to the applicant in this case.  So, there is no need for any reliance on a breaking offence to justify even more severe punishment. 

But, at the end of the day, we submit that, given the new approach that has been taken by the court, by a majority of the court, the uncertain basis upon which it is advanced, the apparent conflict with common law authority which had been understood heretofore to inform the meaning of “break”, the potential implications in practice, and the unstable nature of the new test and the uncertain nature of it, that this is a case where there should be a grant of special leave to appeal.  May it please the Court.

KEANE J:   Thanks, Mr Odgers.  Yes, Mr Baker.

MR BAKER:   Thank you, your Honour.  The respondent submits that the Court of Criminal Appeal was correct to find that the Crown did not have to negative the applicant’s legal right to enter the apartment as a precondition to liability for an offence under section 112 of the Crimes Act.  All three members of the court below accepted that the trial judge had erred in directing an acquittal on the basis that the applicant could not be guilty of breaking and entering a property of which he was named a co‑tenant.  That conclusion, the respondent submits, is plainly correct having regard to the text of section 112 and the proper construction of the phrase “in any dwelling-house” as is found in the section.

EDELMAN J:   Mr Baker, what is the test then?  If you can break, by entering a property that you have a legal right to enter, what is the restriction or the test for breaking?  Which are the tests that you adopt?

MR BAKER:   The test – and when we say “the test” that - when your Honour refers to the test that we adopt, if I can move to this in a moment.  The respondent submits that the ratio of this particular case is very narrow as can be seen from Justice Fullerton’s judgment.  But the test that the majority approached and adopted was one that spoke about the limiting element that needed to be placed and that is, the consent of the occupant, the occupant in fact. 

Where Justice Brereton does step a bit further down the line is where his Honour talks about those owner‑occupier positions but, as we can see from Justice Fullerton’s judgment - and that is particularly noteworthy at application book 34, paragraph 40, where her Honour does limit the question to the particular facts and circumstances of this case ‑ her Honour talks about the “question of law” that arose at paragraph 39 and then her Honour, at paragraph 40, talks about:

Limiting . . . that question, and for present purposes limiting myself to the fact that the respondent forcibly broke into and entered an apartment where he was not residing but in respect of which he claimed a contractual right to enter under an extant tenancy agreement –

Her Honour talks about the fact that what the prosecution does need to establish in the factual context of this case was whether or not there was an offence where a person who was in continuing occupation did not consent to the co-tenant breaking into the premises. 

So, when one looks at Justice Fullerton’s judgment and the way in which the ratio appears in this judgment, those further observations by Justice Brereton that we can see at paragraph 17 of his Honour’s judgment, on application book page 28, the last part of that paragraph – those observations were not ultimately necessary for the resolution of the appeal and in the circumstances where there was no dispute that the complainant’s leasehold interest in the land existed, the test, as your Honour Justice Edelman asks me, is really the one that we see from the ratio – which is what the consent – or what permission is given by the person in occupation in fact.  In this particular case ‑ ‑ ‑

EDELMAN J:   What is a trial judge to do then?  A trial judge is to ignore the examples that have been posed by one member of the majority of this decision?

MR BAKER:   The examples that your Honours are going to are the examples given by Justice Fullerton.  This emerges from where her Honour is really restricting the ratio of the judgment because when she gives those examples, on application book pages 36 and 37, she is really, having formed a view at paragraph 43 and onwards – or before 43 – that the approach in this particular case is what the permission was that was given by the occupant in fact. 

Her Honour there is simply saying that insofar as Justice Brereton poses these other alternatives, there may be problems of proof that present and where her Honour talks about these further examples on application book pages 36 and 37, where the applicant puts against us that there are these arbitrary results, those paragraphs where her Honour Justice Fullerton identifies, for example, the de facto arrangement, quite clearly that would not be a situation where there would be a problem because, in that particular case, the de facto who leaves the property is still an occupant.

So, insofar as there is another occupant present, a trial judge would simply need to determine it and to raise, for the jury’s consideration, these questions of proof about where ‑ ‑ ‑

EDELMAN J:   Why is a de facto who leaves the property still an occupant?  Is that because they have a right to occupancy?

MR BAKER:   Because they are still residing in the property.  They are an occupant in fact who has resided – in the particular scenario that Justice Fullerton refers to, there is a verbal argument, but the person leaves the premises for a couple of hours and then returns to their residence. 

EDELMAN J:   But in some domestic violence cases the departure is more than for a couple of hours.

MR BAKER:   In circumstances – and again I return to the factual circumstances of this case, what Justice Fullerton was saying was that, in a situation where the occupant had remained and the applicant had months before moved out, moved out by moving all of his property out, returning the keys and the co‑tenant had remained in that property and so, returning to a factual scenario like this, the quite clear question of the problems of proof can be answered by looking at the facts which show that the applicant was no longer a person who was in occupation of that property.

EDELMAN J:   So, the test that a trial judge should apply is the test at paragraph 28, but only to some occupants and not to other occupants?

MR BAKER:   Well, as to an occupant in fact to be the person who remains residing within that property.

EDELMAN J:   What about then the circumstance of an owner who wishes to evict a squatter?  Is the owner no longer allowed to use reasonable force to evict a squatter?

MR BAKER:   If an owner, but non-occupier, who had a squatter in their premises, on this test, if the owner was to kick down the door or break the door and as the majority makes clear – the breaking into a property simpliciter is not an offence.  It is if there is an offence committed once the person enters the property - if an owner who does not live at the property kicks down the door and goes in and assaults the squatter, then that would be, on this test, an offence under 112.

EDELMAN J:   So, putting aside the assault, at the point in which time the owner has kicked down their own door where the locks have been changed by a trespasser, the owner has broken into their own home?

MR BAKER:   Yes, and that is not an offence.  It is not an offence for him to have broken into that home, it is only then where they – it is the way they have entered it.  But, if they then go on to assault the squatter and, as the three judges determined, it is not when one breaks into one’s own home, that you can still be liable under section 112, and that is clear from the construction of the section where it refers to “any dwelling‑house” and so the majority makes clear that you can commit an offence under 112 by breaking into your own home.

EDELMAN J:   That is clearly right.  I mean, if an owner has leased premises, then the owner clearly can break in, but that would be in well‑established circumstances where the owner does not have a right of entry.

MR BAKER:   Yes, but returning to the question, the “break” is a word that is legally neutral, like “enter”.  It does not create the liability.  It is what happens then, in the scenario that your Honour Justice Edelman poses, where a person who has ownership of a house where another person might be residing, a squatter, and breaks in, it is the offence that occurs once that person then commits the serious indictable offence therein.  So, when one talks about the construction of the section, which I have done, you can see that it is an offence under section 112 if it is your own home.

If I can address this question of the arbitrary results.  Those two scenarios that Justice Fullerton talks about - where Justice Fullerton at paragraph 46 on application page 36 talks about an actual occupant - her Honour’s reservations about whether an offence under 112 would be committed are well founded as there would be no break where, on this test, the person is an occupant.

Where the applicant says that the only difference between that and the present case is a question of the passage of time, in the present case, the applicant had taken up residence elsewhere, months before, ceased paying rent and removed almost all of his possessions from the property, surrendered his keys, ensured he had not exercised any rights or performed any of his obligations as a tenant for some months by the date of that offence.  He was not in occupation of that property, which is in stark contrast to the hypothetical scenario identified by Justice Fullerton. 

Another example that is put forward by the applicant is the question surrounding a change to the circumstances in the case of Barker.  The respondent’s submission is that that is misconceived.  It is not the case that an occupier who goes away on holiday for two or three weeks ceases to be an actual, lawful occupant of their property, and so, in that scenario, which was posited by the applicant, Mr Curl would remain a lawful occupant of his home, and his authority to enter that home could not be revoked or curtailed by Mr Barker.

When one talks about the fine distinctions that occur with this particular area of law, it is routinely acknowledged that this area does have such distinctions, and that it is a quaintly technical area.  It is also noteworthy that this is unique to – this particular language of 112 is unique to the offence in New South Wales.  In the other States and Territories, the burglary, housebreaking and criminal trespass offences do not have this language.  It is only Queensland that retains the element of break in their burglary/housebreaking scheme.  All the other jurisdictions use the language of “unlawful entry”, “entry as a trespasser” or “enters a place without consent”.

Queensland does have break in its Code, but it is comprehensively defined under section 418.  So, there are some fine distinctions that arise in this area, I would acknowledge that, but when one looks at the factual circumstances of this particular case and the way in which the ratio of the court has been confined by Justice Fullerton, the respondent’s submission is that there is no error in the approach undertaken by the Court of Criminal Appeal in that respect. 

Justice Adamson approached it in a different way.  Her Honour analysed the ambit of the applicant’s permission in a different way by looking at the Residential Tenancies Act, whereas the majority had approached the question of break by reference to consent or permission given by the complainant.  Justice Adamson had focused on the scope of the permission or authorisation granted to the applicant by the landlord.  So,

her Honour found that the applicant’s right under the residential tenancy agreement to enter the property was qualified by section 51(1)(d) of the Act.  More specifically, Justice Adamson concluded that the applicant was not authorised to enter by the use of force in circumstances where the force would damage the premises because it would exceed that scope of permission as granted by the landlord. 

The respondent submits that, whichever analysis is preferred, the applicant committed a break in the requisite sense.  That is because on any view the complainant did not consent to the applicant entering the property by use of force, or at all, and on any view the applicant intentionally caused damage to the premises to effect entry. 

Perhaps if I could finish, the outcome is clear in this case.  Special leave should not be granted to resolve questions and circumstances in other cases which are different to the considerations that apply in this.  This particular case, as one can see from the judgment of Justice Fullerton, was very confined to a particular situation where the co‑tenant had not been a resident for many, many months. 

For those reasons, the respondent submits special leave should be refused.

KEANE J:   Thanks, Mr Baker.  Mr Odgers, anything in reply?

MR ODGERS:   Yes, thank you, your Honour, just briefly.  At the end of the day, it is clear from Justice Fullerton’s judgment that she agreed with Justice Brereton.  It is apparent from paragraphs 40 and 41 that she repeatedly indicated agreement with the proposition that the test turned on the permission, express or implied, of the occupant and any statements later made which went to questions of proof did not qualify that basic test.  Problems of proof are entirely different from the formulation of the test and it is clear that Justice Fullerton agreed with Justice Brereton in his formulation of the test in paragraph 28.

The Crown – the respondent – seems to be, with respect, very strongly desiring to avoid reliance on what Justice Brereton held.  But any judge who is going to be applying this judgment in the future will be confronted by a situation where you have two majority judgments where Justice Brereton has formulated the principle in a particular way and Justice Fullerton has agreed with it.  To give examples of the kinds of problems raised by Justice Brereton’s judgment, if you look at paragraph 17, where his Honour referred to various factual scenarios, just take the last sentence – the second‑last sentence of that paragraph:

Likewise if an owner breaks into his or her owner‑occupied home –

So, the owner is occupying it:

in which the owner’s child is also resident –

So, the owner’s child is also an occupant:

to assault the child’s partner.

His Honour regards that as a situation where, under his test, there has been a break.  So, quite apart from the squatters and the tenants who have ceased to be legally entitled to be present, the scope of this test does raise very serious issues which – and I do want to emphasise that, in terms of support for this change to the law, it is very difficult…..a coherent explanation for it – bearing in mind that, under the common law – which has heretofore been accepted to be the applicable test for break under these provisions – in that extract from the Columbia Law Review – which we have put in our written submission, at paragraph 52 of the application book, at line 20, it was stated in the summary of the law of burglary – which, we say, applies under the current test – sorry, applies to section 112 and cognate provisions – that:

a right to enter or consent of the owner to the entry precludes a breaking –

So, we say that in this case where the applicant did have consent to enter, a legal right to enter, consent of the owner, then that precluded a break‑in, and to change the law in the way that appears to now have occurred, in the uncertain way it has occurred, is a question of real general importance which should attract a grant of special leave.  May it please the Court.

KEANE J:   Thanks, Mr Odgers.  The Court will adjourn to consider the course it will take in this matter.

Adjourn the Court, please.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.13 AM:

KEANE J:   There will be a grant of special leave in this matter.  Mr Odgers, how long will the hearing occupy?

MR ODGERS:   I would have thought half a day probably realistically, your Honour - half a day to one day.

KEANE J:   Mr Baker?

MR BAKER:   Half a day, your Honour.

KEANE J:   All right.  As I say, there will be a grant of special leave.  The parties should follow the directions of the Senior Registrar in relation to bringing the matter to a hearing. 

Adjourn the Court, please.

AT 11.14 AM THE MATTER WAS CONCLUDED