Citation: Hussein Ghamrawi v R; Khaled Ghamrawi v R; Mustapha Ghamrawi v R; Omar Ghamrawi v R [2017] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 22 September 2017
Judge(s): Leeming JA (primary judgment); Bellew J and Lonergan J agreeing
Background
Four brothers were convicted in the District Court of aggravated breaking and entering a dwelling house and committing a serious indictable offence (assault occasioning actual bodily harm) under s 112(2) of the Crimes Act 1900 (NSW). The alleged offence arose from an incident in October 2014 at a Guildford home occupied by the partner of one of the brothers' family members and another man, with whom a dispute over a stored caravan had developed. The Crown alleged that the brothers entered the home and assaulted the occupant, with one brother also assaulting the female occupant.
The critical factual contest at trial concerned how entry was gained. The Crown alleged the brothers simply opened an unlocked door without knocking. The defence case was that one brother knocked and was told "come in," and the female occupant conceded in cross-examination that she had no objection to him entering at the moment he walked in.
The trial judge directed the jury that if a person intends to commit an unlawful act at the time permission to enter is given, there is a "breaking," because permission to enter is only valid if given for a lawful purpose. The brothers appealed on the ground that this direction was wrong in law.
Legal Issues
- Whether the trial judge's direction on the meaning of "break" under s 112 of the Crimes Act was correct in law
- Whether a "constructive breaking" occurs when a person enters premises with permission obtained without trick, threat, or artifice, but intends at the time of entry to commit a serious indictable offence
- Whether any legal error in the direction was material to the verdicts, given the Crown's submission that the case was really about "actual" breaking
Decision
On materiality of the error: The Court held that the alleged misdirection was material. Given the defence evidence that entry was permitted, and the female occupant's concession in cross-examination that she did not object to the entry, the jury may have relied on the erroneous direction to find a "breaking" on the sole basis of unlawful intent. The error could not be dismissed as inconsequential to the outcome.
On the meaning of "break": Leeming JA conducted a detailed review of the common law offence of burglary, the legislative history of s 112 and related provisions, and the structure of cognate offences in the Crimes Act. The Court confirmed that "break" for the purposes of s 112 encompasses either an "actual" break (the use of physical force to gain entry, however slight) or a "constructive" break (entry obtained by artifice, trick, or threat). These categories reflect the historical limits of burglary at common law.
On entry with permission and unlawful intent: The Court held that where a person is permitted to enter premises, that permission has not been obtained by any trickery, artifice, or threat, and entry is effected without force, there is neither a constructive breaking nor an actual breaking. Unlawful intent alone, present at the time of a genuinely permitted entry, does not transform that entry into a breaking for the purposes of s 112. The trial judge's direction was therefore wrong in law.
On remedy: The Court declined to substitute a verdict, noting that the jury's guilty finding did not necessarily reflect a conclusion to the criminal standard that the brothers entered with intent to commit the assault. The convictions were quashed and the matter remitted for retrial, with the decision whether to proceed left to the Director of Public Prosecutions.
Orders Made
In each of the four appeals:
- Leave to appeal granted and appeal allowed
- Conviction for the offence contrary to s 112(2) of the Crimes Act 1900 quashed
- Proceedings remitted to the District Court for retrial
Key Takeaways
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Under s 112 of the Crimes Act 1900 (NSW), a "break" requires either an actual breaking (physical force, however slight) or a constructive breaking (entry obtained by artifice, trick, or threat). These categories have their roots in the common law offence of burglary and remain the outer limits of the element.
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A person's intention to commit an unlawful act at the time of entering premises does not, without more, constitute a "constructive break." Where genuine permission to enter exists and was not obtained by trickery or threat, the breaking element of s 112 is not satisfied.
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The Court of Criminal Appeal confirmed that the analysis in R v Stanford (2007) 70 NSWLR 474 and R v Boyle [1954] 2 QB 292 continues to define the scope of "constructive breaking" in NSW, and that R v Dugan [1984] 2 NSWLR 554 is distinguishable.
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Where a jury direction misstates the law on an element of the offence, and the evidence at trial raised a genuine possibility of that misdirection affecting the verdict, the error is material even if the Crown contends the case was primarily fought on other grounds.
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Quashing convictions and remitting for retrial does not require the prosecution to proceed. As the High Court confirmed in Spies v The Queen (2000) 201 CLR 603, the prosecuting authority retains full discretion whether to present a fresh indictment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59, 61, 109, 110, 111, 112, 114
- Crimes (Home Invasion) Amendment Act 1994 (NSW)
- Crimes Amendment Act 2007 (NSW)
- Crimes and Other Acts (Amendment) Act 1974 (NSW)
- Criminal Appeal Rules, r 4
- Criminal Law Amendment Act 1883 (NSW)
Cases:
- R v Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370
- R v Boyle [1954] 2 QB 292
- R v Dugan [1984] 2 NSWLR 554
- R v Williams [1988] 1 Qd R 289
- R v Rigney [1996] Qd R 551
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18
- R v Collins [1973] 1 QB 100
- R v Jones [1976] 3 All ER 54
- R v Walker (1978) 19 SASR 532
- Marks-Vincenti v The Queen [2015] VSCA 54