The Director of Public Prosecutions v Booth

The Director of Public Prosecutions (DPP) appealed to the Court of Criminal Appeal of New South Wales against the acquittal of Mr Booth on charges of aggravated break and enter and assault occasioning actual bodily harm. The dispute centred on the defence of claim of right raised by Mr Booth in relation to the burglary charge, and the interpretation of certain provisions of the *Crimes Act 1900* (NSW) concerning the elements of burglary and the scope of the defence.

The Court was required to determine whether the offence of aggravated break and enter under section 112 of the *Crimes Act* required an intention to commit a theft, or if any unlawful intent sufficed. Further, the Court considered whether a mistaken belief relied upon for a claim of right defence under section 38 of the *Crimes Act* must relate to a right that is recognised in civil law, or if a genuine but mistaken belief in a right is sufficient. The Court also had to consider when a physical element of an offence "relates to property" and what constitutes an "offence relating to the use of force against a person" for the purposes of the aggravated break and enter offence.

The Court held that the offence of aggravated break and enter under section 112 of the *Crimes Act* does not require an intention to commit theft; rather, an intention to commit any unlawful act within the premises is sufficient. Regarding the claim of right defence, the Court clarified that section 38 requires a genuine belief in a right, which need not be a right that is legally enforceable in civil law, but it must be a belief in a right to do the act that constitutes the offence. The Court further explained that a physical element relates to property if it concerns the possession or control of that property. Finally, the Court determined that an offence relating to the use of force against a person includes offences where the use of force is an element, even if the primary purpose of the force is not to cause harm. The questions of law were answered accordingly.