Recent Cases

BA v The King [2023] HCA 14 (10 May 2023) (Kiefel CJ; Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ)


Criminal Law – Appeal – Break and enter and commit serious indictable offence – Where appellant and complainant co‑tenants of apartment under Residential Tenancies Act 2010 (NSW) (“RT Act”) – Where appellant had moved out and ceased paying rent – Where appellant, while still a co-tenant, entered apartment by breaking down locked door and assaulted complainant – Where appellant pleaded not guilty to “breaks and enters any dwelling-house … and commits any serious indictable offence therein” in circumstances of aggravation under Crimes Act 1900 (NSW), s 112(2) – Where trial judge directed verdict of not guilty under s 112(2) because appellant had right to enter apartment under residential tenancy agreement – Whether person who “breaks and enters any dwelling-house” under s 112 must be trespasser without lawful authority to enter – Whether appellant had lawful authority to enter premises.

Landlord and Tenant – Whether right of occupation granted under residential tenancy agreement conditional upon tenant’s purpose of entry being use of premises as residence – Whether no lawful authority to enter premises where entry made without consent of occupant – Whether right of exclusive possession under lease lost when co-tenant vacates premises but remains a lessee – Whether provisions of RT Act condition tenant’s lawful authority to enter premises.

Words and phrases – “break and enter”, “breaks”, “burglary”, “co-tenants”, “consent”, “damage to premises”, “dwelling-house”, “entry”, “exclusive possession”, “habitation”, “lawful authority”, “liberty to enter”, “occupation”, “purpose of entry”, “residential tenancy agreement”, “right of entry”, “right of possession”, “trespass”, “trespasser”.