Hussein Ghamrawi v R; Khaled Ghamrawi v R; Mustapha Ghamrawi v R; Omar Ghamrawi v R [2017] NSWCCA 195

Hussein Ghamrawi v R; Khaled Ghamrawi v R; Mustapha Ghamrawi v R; Omar Ghamrawi v R [2017] NSWCCA 195

There is no 'breaking' for the purposes of s 112 of the Crimes Act 1900 (NSW) where entry is obtained with permission not procured by trick, artifice or threat, even if the entrant has an intent to commit a felony. The trial judge's contrary direction was erroneous and material to the verdict, as the jury may have convicted upon the impermissible basis that an unlawful intent alone turned a permitted entry into a 'breaking'.

Jurisdiction
Australia
Judgment Date
22 September 2017
Procedural Posture
Appeal / Judgment on Appeal Against Conviction
Outcome
Appeal allowed; convictions quashed; proceedings remitted for retrial
Legal Topics
['appeal Against Conviction' 'break and Enter' "meaning of 'break'" 'constructive Breaking' 'statutory Construction (crimes Act 1900 S 112)']
['criminal Law'] ['appeal Against Conviction' 'break and Enter' "meaning of 'break'" 'constructive Breaking' 'statutory Construction (crimes Act 1900 S 112)']

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Procedural Posture

Appeal / Judgment on Appeal Against Conviction

Legal Issues

  1. 1 ["Whether entry with felonious intent but with permission constitutes 'breaking' for the purposes of s 112 of the Crimes Act 1900 (NSW)" 'Whether the trial judge erred in directing the jury that entry with felonious intent at the time of being given permission is a breaking' 'Materiality of the alleged error in directions at trial']

Ratio Decidendi

There is no 'breaking' for the purposes of s 112 of the Crimes Act 1900 (NSW) where entry is obtained with permission not procured by trick, artifice or threat, even if the entrant has an intent to commit a felony. The trial judge's contrary direction was erroneous and material to the verdict, as the jury may have convicted upon the impermissible basis that an unlawful intent alone turned a permitted entry into a 'breaking'.

Court Disposition

Appeal allowed; convictions quashed; proceedings remitted for retrial

Orders

  • ['Grant leave to appeal and allow the appeal.' 'Quash the conviction for the offence contrary to s 112(2) of the Crimes Act 1900 of aggravated break enter and commit a serious indictable offence.' 'The proceedings be remitted to the District Court for retrial.']