BA v The KingCitation:[2023] HCA 14Before:Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson, Jagot JJDate:10 May 2023Case Number:S101/2022Read more

BA v The KingCitation:[2023] HCA 14Before:Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson, Jagot JJDate:10 May 2023Case Number:S101/2022Read more

A co-tenant who remains a lessee under a residential tenancy agreement retains lawful authority to enter the premises, and cannot be considered a trespasser for the purposes of s 112 of the Crimes Act 1900 (NSW), even if they have vacated and ceased paying rent, unless the tenancy has been legally terminated.

Parties
Appellant: Appellant; Complainant: Complainant
Jurisdiction
Australia
Judgment Date
10 May 2023
Procedural Posture
Criminal Appeal / Judgment
Outcome
appeal allowed
Legal Topics
Break and Enter, Serious Indictable Offence, Co Tenancy, Lawful Authority, Exclusive Possession
Criminal Law Landlord and Tenant Break and Enter Serious Indictable Offence Co Tenancy Lawful Authority Exclusive Possession

Case Brief

Summary, issues, holding and outcome

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Parties

Appellant

Appellant

Complainant

Complainant

Procedural Posture

Criminal Appeal / Judgment

Legal Issues

  1. 1 Whether a co-tenant who has vacated but remains a lessee has lawful authority to enter the premises under a residential tenancy agreement
  2. 2 Whether the offence of 'break and enter and commit serious indictable offence' under s 112 of the Crimes Act 1900 (NSW) requires the accused to be a trespasser without lawful authority
  3. 3 Whether the right of occupation under a residential tenancy agreement is conditional upon the purpose of entry

Ratio Decidendi

A co-tenant who remains a lessee under a residential tenancy agreement retains lawful authority to enter the premises, and cannot be considered a trespasser for the purposes of s 112 of the Crimes Act 1900 (NSW), even if they have vacated and ceased paying rent, unless the tenancy has been legally terminated.

Court Disposition

appeal allowed

Orders

  • Verdict of not guilty under s 112(2) of the Crimes Act 1900 (NSW) affirmed
  • Appellant acquitted of the charge