High Court rules it’s not “break and enter” if the intruder’s name is on the lease
Ex-partner accused of break and enter
In a recent case involving a break and enter charge, woman was terrified when her former boyfriend kicked down the front door, breaking three locks, forced his way into the apartment, shook her and threw her phone to the floor when she tried to call police.
The two had moved in together into an apartment in Queanbeyan under a residential tenancy agreement which named them both as lessees. Eight months later, they broke up. The man moved out and the women stayed on, by agreement.
He removed most of his possessions in May 2019 and stopped paying rent. She had allowed him in several times to pick up his belongings, but when he turned up at 6am shouting abuse, she refused to let him in.
The man was charged with break and enter, commit a serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) under section 112(2) of the NSW Crimes Act.
It is a serious charge that can lead to jail for up to 20 years.
Legal findings on break and enter charge
In the NSW District Court the judge acquitted the man of the break and enter charge.
The legal reason – his name was still on the lease for the apartment, along with the woman’s, and under the law he had a pre-existing right to enter the dwelling.
The Crown appealed. The Court of Criminal Appeal found the determinative issue was the lack of consent to entry by the occupant, and he had no right to kick down the door.
The man appealed to the High Court, where three judges found against him, but four judges ruled in favour of his right to entry while his name was on the lease.
The majority judges in BA v The King cited legal precedents going all the way back to Britain, to the year 1547, that a person can’t be convicted of break and enter into their own premises.
The majority judgement contains references to cases dating back centuries, confirming that a man’s home is his castle and he can storm it if he wants to.
You must be a trespasser to break and enter
The High Court majority found that under section 112 of the NSW Crimes Act, to break and enter a dwelling you must be a trespasser.
The man’s name was on the lease, so he did not require the occupant’s permission to enter, and that right of entry was not removed when he entered the apartment by force.
“As a matter of law, the appellant (the man) did not require the complainant’s (the woman’s) consent to enter the premises,” the majority judges ruled.
Concern for tenants in fear of former partner or housemate
The judgement is likely to cause concern for those who refuse entry to a person they fear when that person’s name is on the lease, or they own the dwelling.
NSW’s residential tenancy law provides for automatic termination of a lease on the making of a final apprehended violence order.
However, this can take time and doesn’t help when someone you fear is battering down your door.