R v BA

Case [2021] NSWCCA 191 20 August 2021

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v BA [2021] NSWCCA 191
Hearing dates: 12 March 2021
Date of orders: 20 August 2021
Decision date: 20 August 2021
Before: Brereton JA at [1];
Fullerton J at [37];
Adamson J at [47].
Decision:
(1) Pursuant to s 107(5) of the Crimes (Appeal and Review) Act 2001 (NSW), quash the acquittal of the respondent on the charge of break and enter and commit serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) contrary to s 112(2) of the Crimes Act 1900 (NSW) which was ordered by direction of Williams SC DCJ on 8 September 2020.
(2) Order, pursuant to s 107(6) of the Crimes (Appeal and Review) Act 2001 (NSW), that there be a retrial of the respondent.

Catchwords:
CRIME – Appeals – Appeal against directed acquittal – Property offences – Break, enter, and commit serious indictable offence – Forcible break – Accused a tenant of property under residential tenancy agreement but no longer an occupant – Whether prosecution required to negative legal right to enter – Acquittal quashed – Retrial ordered
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Rights and obligations of landlords and tenants – Whether Tenant’s obligation not to cause or permit damage to premises negatives right of entry
CRIME – Appeals – Appeal against directed acquittal – Residual discretion to dismiss Crown appeal notwithstanding material error – Public interest – Precedential value – Reflection of total criminality – Crown not responsible for error – Discretion not exercised

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), ss 104, 107, 195
Crimes Act 1900 (NSW), ss 109, 110, 111, 112, 113
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code Act 1899 (Qld), ss 418, 419
Criminal Procedure Act 1986 (NSW), s 166
Residential Tenancies Act 2010 (NSW), s 51

Cases Cited:
Barker v R (1983) 153 CLR 338; [1983] HCA 18
Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28
CMB v AttorneyGeneral for New South Wales (2015) 256 CLR 346; [2015] HCA 9
DK v Director of Public Prosecutions [2021] NSWCA 134
Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195
Halley v R (1938) 40 WALR 105
Pearson v R (1910) 4 Cr App R 40
R v Boyle [1954] 2 QB 292; 2 All ER 721
R v Galea (1989) 1 WAR 450; [1989] WASC 512
R v Haines and Harrison (1821) Russ & Ry 451; 168 ER 892
R v Hyams (1836) 7 C & P 441; 173 ER 196
R v Johnson (1786) 2 East PC 448
R v Johnston [1973] Qd R 303
R v Lackey [1954] Crim LR 57
R v Lazarus (2017) 270 A Crim R 378; [2017] NSWCCA 279
R v Lopatta (1983) 35 SASR 101
R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
R…

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.

Continue reading R v BA

Details

AGLC: R v BA [2021] NSWCCA 191
Case: [2021] NSWCCA 191
Decision Date: 20 August 2021

CaseChat Overview and Summary

The appeal against a directed acquittal was brought before the court by the Crown, seeking to overturn the decision to acquit the accused of breaking and entering a property and committing a serious indictable offence. The accused, a former tenant of the property under a residential tenancy agreement, had been charged with forcible entry. The court was tasked with determining whether the prosecution was required to negate the accused's legal right to enter the premises and whether the accused's obligation under the tenancy agreement not to cause or permit damage to the premises negated their right of entry.

The central legal issue revolved around whether the prosecution needed to negate the accused's legal right to enter the premises to successfully convict them of the offence. This was complicated by the fact that the accused was no longer an occupant of the property but remained a tenant under a residential tenancy agreement. The court also considered the implications of the accused's obligation under the tenancy agreement not to cause or permit damage to the premises on their right of entry.

In its reasoning, the court held that the prosecution was not required to negate the accused's legal right to enter the premises. It found that the accused's status as a tenant under the Residential Tenancies Act 2010 (NSW) did not automatically negate their right to enter. The court emphasised that the obligation not to cause or permit damage did not equate to a right of entry. The court quashed the acquittal and ordered a retrial, emphasising the importance of correctly applying the law to the facts of the case.

The court declined to exercise its residual discretion to dismiss the Crown's appeal, despite the material error. It noted that the Crown was not responsible for the error and that the appeal had significant precedential value. The court considered the public interest in ensuring that the law was correctly applied and reflected the total criminality of the accused's actions.

Orders