BA v The King [2023] HCA 14

BA v The King [2023] HCA 14

For an offence under s 112(2) of the Crimes Act 1900 (NSW), 'breaks and enters' requires the accused to be a trespasser; where the accused retains a right of exclusive possession as a co-tenant under a residential tenancy agreement, he or she does not commit a trespass by entering, even forcibly or without consent of a co-occupant, and is not capable of being guilty of the 'breaking and entering' element of s 112 while that right persists.

Parties
Appellant: BA; Respondent: The King
Jurisdiction
Australia
Judgment Date
10 May 2023
Procedural Posture
Criminal Appeal / Final Appeal Before High Court
Outcome
Appeal allowed. Orders of the Court of Criminal Appeal set aside. Order made that the appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) be dismissed.
Legal Topics
Break and Enter, Burglary, Trespass, Co Tenancy, Exclusive Possession, Lawful Authority, Domestic Violence, Interpretation of Crimes Act 1900 (nsw), Residential Tenancies Act 2010 (nsw)
Criminal Law Property Law Tenancy Law Break and Enter Burglary Trespass Co Tenancy Exclusive Possession +4 more

Case Brief

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Parties

BA

Appellant

The King

Respondent

Procedural Posture

Criminal Appeal / Final Appeal Before High Court

Legal Issues

  1. 1 Whether, for the purposes of s 112 of the Crimes Act 1900 (NSW), 'breaks and enters any dwelling-house' requires the person to be a trespasser (lacking lawful authority)
  2. 2 Whether the appellant's right of exclusive possession as a co-tenant precluded a finding of 'breaking' under s 112(2)
  3. 3 Whether lack of consent from the co-occupant removes a co-tenant's lawful authority to enter premises

Ratio Decidendi

For an offence under s 112(2) of the Crimes Act 1900 (NSW), 'breaks and enters' requires the accused to be a trespasser; where the accused retains a right of exclusive possession as a co-tenant under a residential tenancy agreement, he or she does not commit a trespass by entering, even forcibly or without consent of a co-occupant, and is not capable of being guilty of the 'breaking and entering' element of s 112 while that right persists.

Court Disposition

Appeal allowed. Orders of the Court of Criminal Appeal set aside. Order made that the appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) be dismissed.

Orders

  • Appeal allowed.
  • Orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 20 August 2021 set aside.