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Court of Criminal Appeal 20 August 2021

R v BA

[2021] NSWCCA 191

Theft & property
CRIME APPEALS APPEAL AGAINST DIRECTED ACQUITTAL PROPERTY OFFENCES FORCIBLE BREAK ACQUITTAL QUASHED

Citation: R v BA [2021] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 20 August 2021
Judges: Brereton JA, Fullerton J, Adamson J

Background

The respondent and the complainant had lived together in a Queanbeyan apartment under a residential tenancy agreement in which both were named as lessees. They separated in May 2019, when the respondent moved out, though the lease remained on foot until 23 July 2019. He stopped paying rent from about April 2019 but remained a lessee at law throughout the relevant period.

On 8 July 2019, the respondent returned to the apartment at around 6:00 am. When the complainant refused him entry, he kicked open the door, which was secured by three locks including a deadlock, shattering the wooden doorframe in the process. He then grabbed the complainant, shook her, yelled at her, and seized her mobile phone.

The respondent was charged with break and enter and commit a serious indictable offence in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900 (NSW). At the close of the Crown case in the District Court trial (heard by a judge alone), the respondent applied for a directed verdict of not guilty. He argued that, as a co-lessee, he had a legal right to enter the premises and therefore could not be guilty of "breaking" into them. The trial judge upheld that application and directed an acquittal. The Crown appealed on a question of law.

  • Whether the prosecution was required to prove, as a precondition to the "breaking" element under s 112(2) of the Crimes Act, that the accused had no pre-existing legal right to enter the premises, even where the entry involved an actual forcible break.
  • Whether the respondent's status as a co-lessee under the Residential Tenancies Act 2010 (NSW) gave him a right of entry that negated the "breaking" element of the offence.
  • Whether s 51(1)(d) of the Residential Tenancies Act 2010 (NSW), which prohibits a tenant from intentionally or negligently causing damage to residential premises, qualified or limited the respondent's right of entry under the lease.
  • Whether the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal, even if a material legal error were established.

Decision

The court unanimously allowed the Crown appeal, though the judges' reasoning on the central question differed in important respects. All three judges agreed that the trial judge erred, that the acquittal should be quashed, and that a retrial should be ordered.

Brereton JA and Fullerton J both reasoned that the key question is not whether an accused had a legal right to enter, nor whether the entry was forcible, but rather whether the entry was within the scope of any consent or permission granted by the person in occupation of the premises. Because the complainant, as the continuing occupant, had not consented to the respondent's entry, the "breaking" element could be established regardless of his status as co-lessee. Brereton JA noted that the prosecution does not need to prove the accused lacked a legal right of entry; it needs only to prove the entry was not in accordance with the occupant's express or implied permission.

Adamson J took a different route to the same result. Her Honour held that the respondent's rights as a co-tenant did not extend to entering the premises by force in a way that would damage them, because s 51(1)(d) of the Residential Tenancies Act prohibited a tenant from intentionally causing damage to the premises. That statutory prohibition qualified the respondent's right of entry, such that he had no right to enter in the manner he did. On this analysis, the trial judge erred in concluding the respondent held an unqualified right of entry.

All three judges declined to exercise the court's residual discretion to dismiss the Crown appeal despite the established legal error. The court identified several factors pointing against that exercise of discretion: the public interest in due prosecution, the precedential value of the ruling, the fact that the lesser charges of which the respondent was convicted did not reflect the full criminality of his conduct, and, significantly, that the miscarriage of justice arose from the respondent's own application rather than from any error by the Crown.

Orders Made

  • The Crown appeal was allowed.
  • The directed acquittal was quashed.
  • A retrial of the respondent was ordered.

Key Takeaways

  • The critical question in a break-and-enter charge is not whether the accused held a legal right to enter the premises, but whether the entry was within the scope of any express or implied permission of the person in actual occupation. The prosecution need not prove the absence of a legal right to enter; it must prove the entry was not consented to by the occupant.

  • A co-lessee's status under a residential tenancy agreement does not automatically provide a defence to a break-and-enter charge where the entry was made without the consent of the other occupant.

  • Adamson J's separate reasoning established that s 51(1)(d) of the Residential Tenancies Act 2010 (NSW), which prohibits a tenant from intentionally causing damage to residential premises, can qualify the right of entry otherwise conferred by a tenancy agreement, meaning entry by damaging force may fall outside the scope of the tenant's lawful rights.

  • Section 51 of the Residential Tenancies Act operates only to regulate the relationship between landlord and tenant inter se, and does not of itself create an independent obligation relevant to criminal liability under the Crimes Act.

  • The Court of Criminal Appeal confirmed that its residual discretion to dismiss a Crown appeal, even where material error is established, will not readily be exercised where the miscarriage of justice resulted from the accused's own application rather than Crown error, and where the lesser charges do not capture the full extent of the alleged criminality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 109, 110, 111, 112, 113
- Crimes (Appeal and Review) Act 2001 (NSW), ss 104, 107, 195
- Residential Tenancies Act 2010 (NSW), s 51
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Code Act 1899 (Qld), ss 418, 419

Cases:
- Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Barker v R (1983) 153 CLR 338; [1983] HCA 18
- DK v Director of Public Prosecutions [2021] NSWCA 134
- R v Lazarus (2017) 270 A Crim R 378; [2017] NSWCCA 279
- R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
- R v Boyle [1954] 2 QB 292
- R v Lopatta (1983) 35 SASR 101
- R v Galea (1989) 1 WAR 450; [1989] WASC 512
- R v Rodley [1913] 3 KB 468
- Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28
- R v Rignery [1996] 1 Qd R 551; [1995] QCA 571
- R v Johnston [1973] Qd R 303
- Halley v R (1938) 40 WALR 105
- R v Haines and Harrison (1821) Russ & Ry 451; 168 ER 892
- R v Robinson (1831) 1 Mood CC 327; 168 ER 1290
- R v Johnson (1786) 2 East PC 448