R v BA [2021] NSWCCA 191

R v BA [2021] NSWCCA 191

The directed acquittal was erroneous because the respondent's continued status as a co-tenant did not of itself preclude liability under s 112(2) of the Crimes Act 1900 (NSW). The prosecution was not required to negative every pre-existing legal right of entry, but had to prove that the respondent's entry, including by breaking through the locked door, was outside the scope of the complainant's express or implied permission as the continuing occupant. The acquittal was quashed, and the public interest and seriousness of the alleged offending justified ordering a retrial.

Jurisdiction
Australia
Judgment Date
20 August 2021
Procedural Posture
Criminal Appeal Against Directed Acquittal on a Question of Law / Court of Criminal Appeal Appeal From District Court Directed Acquittal
Outcome
Appeal allowed; acquittal quashed; retrial ordered.
Legal Topics
['break and Enter and Commit Serious Indictable Offence' 'directed Acquittal' 'crown Appeal' 'forcible Break' 'residential Tenancy Rights' 'consent or Permission to Enter Premises' 'residual Discretion to Dismiss Crown Appeal']
['criminal Law' 'criminal Procedure' 'residential Tenancies'] ['break and Enter and Commit Serious Indictable Offence' 'directed Acquittal' 'crown Appeal' 'forcible Break' 'residential Tenancy Rights' 'consent or Permission to Enter Premises' 'residual Discretion to Dismiss Crown Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Directed Acquittal on a Question of Law / Court of Criminal Appeal Appeal From District Court Directed Acquittal

Legal Issues

  1. 1 ['Whether, for an offence under s 112(2) of the Crimes Act 1900 (NSW), the prosecution was required to prove that the respondent had no pre-existing legal right to enter the apartment despite entry being effected by an actual breaking involving force.' "Whether a tenant's right under an extant residential tenancy agreement prevented a finding of breaking into premises formerly shared with the complainant." "Whether s 51(1)(d) of the Residential Tenancies Act 2010 (NSW) qualified or affected the respondent's asserted right to enter by force causing damage." 'Whether the Court should exercise a residual discretion to dismiss the Crown appeal despite material error.']

Ratio Decidendi

The directed acquittal was erroneous because the respondent's continued status as a co-tenant did not of itself preclude liability under s 112(2) of the Crimes Act 1900 (NSW). The prosecution was not required to negative every pre-existing legal right of entry, but had to prove that the respondent's entry, including by breaking through the locked door, was outside the scope of the complainant's express or implied permission as the continuing occupant. The acquittal was quashed, and the public interest and seriousness of the alleged offending justified ordering a retrial.

Court Disposition

Appeal allowed; acquittal quashed; retrial ordered.

Orders

  • ['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...