Dear Colleagues;

In BA v The King [2023] HCA 14 (10 May 2023) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2023/14.html a majority of the High Court of Australia held that a statutory provision of NSW law dealing with “breaking and entering” could not apply to someone who was a co-tenant of a residential property who entered the house contrary to the wishes of the other co-tenant. The majority (Gordon, Edelman, Steward and Gleeson JJ) held that for the offence to apply, the accused must be a trespasser, and where they are still on the lease of the property then they do not commit the tort of trespass to land by breaking down the door of the house. (Of course, they can commit other offences by doing so, and by attacking the occupier, as happened here. But they cannot be found guilty of “breaking and entering”.)

The facts involve the accused, BA and his de facto partner, being parties to a residential lease. After their relationship broke down, BA agreed to leave the house, but having done so, and the locks having been changed, he returned one morning and in a violent episode broke down the door and attacked his former partner. He was convicted of various offences relating to what he did after entering the house, but the issue on appeal was whether he was guilty of an offence against the relevant criminal provision, Crimes Act 1900 (NSW), s 112(2), which creates an offence where someone "breaks and enters any dwelling-house ... and commits any serious indictable offence therein in circumstances of aggravation”.

The majority review the history of the offence and similar offences relating to “burglary” going back to 1547 (see para [57] relying on a previous review of the area by Leeming JA in Ghamrawi (2017) 95 NSWLR 405 at 414 [50]-[51], 417-419 [66]-[73]). They note at [62] that “This long history of breaking and entering as requiring a trespass by the accused person has been consistently reiterated”.

For those (like me!) who are most interested in the private law issues, there is a good summary of the relevant law of trespass to land at [69] ff (footnotes in the original, of course):

 

1                                       Trespass occurs when a person enters the premises of another without lawful authority^[1], including when a person enters by licence or permission but with a purpose contrary to the exclusive purpose of the licence^[2] or in a manner contrary to the terms of the licence^[3]. There is a basic divide at common law between a lease and a licence. An essential element of a lease, in contrast with a licence, is that it confers a right against others to exclusive possession of land as distinct from a mere licence or permission to enter land and use it for some stipulated purpose or purposes^[4]. A tenant's right of exclusive possession entitles the tenant (or, if held jointly, co‑tenants) to bring an action for ejectment or, after entry, for trespass against all others apart from limited exceptions at common law, such as a landlord exercising a limited right of entry for confined purposes^[5] or "using only such force as is necessary" to remove a tenant who remains in possession after the expiry of the tenancy^[6]. The right of exclusive possession held by a tenant means, by definition, that others whom the tenant can exclude cannot bring an action for trespass against the tenant. A tenant may be liable to compensate a landlord for damage to premises. But the duty of a tenant to maintain the premises is a separate duty from, and not a condition upon, the tenant's right of exclusive possession^[7].

See also para [79]:

 

2                                       There is no principle of general law that a co‑tenant's entry into leased premises is conditional upon the consent of all or any other co‑tenants, or all or any other persons in occupation of the leased premises. Accordingly, the circumstances of the appellant's entry (namely that, immediately prior to his entry on the morning of 8 July 2019, the complainant was the sole person in lawful occupation of the Queanbeyan apartment before the appellant's entry and she did not consent to his entry) do not deny the appellant's liberty to enter the premises over which he had a right of exclusive possession.

I have only skimmed the minority judgment of Kiefel CJ and Gageler & Jagot JJ. But I think their view is that “occupation” is more important than possession and that an offence had been committed; see [34]:

 

3                                 It is not to the point that the appellant might not have committed a common law trespass. His proprietary and contractual rights under the Residential Tenancies Act, and any associated common law rights, are no defence to or excuse for his forcible entry into the apartment which his former partner occupied, and which he did not, against the will of his former partner.

It might be suggested that if Parliament takes this view it may need to amend s 112 to give effect to this policy.

 

Regards

Neil