Hussein Ghamrawi v R; Khaled Ghamrawi v R; Mustapha Ghamrawi v R; Omar Ghamrawi v R

1. [1]

   LEEMING JA: Section 112(1) of the Crimes Act 1900 (NSW) states:

2. [2]

   Simpson J observed in R v Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370 at [24]-[25] that the Crimes Act contains no definition of the word “break”, and “fine distinctions have been drawn between what does, and what does not, constitute ‘breaking’” for the purposes of this section. Her Honour added at [47] that she saw “no useful purpose to be served by perpetuation of the fine distinctions which have been set out above” and suggested that it might be time that s 112 attracted the attention of law reformers. A decade later, the materially unamended section has given rise to similar issues.

3. [3]

   From 30 May to 15 June 2016, Messsrs Mustapha, Khaled, Omar and Hussein Ghamrawi stood trial on a single indictment charging each of them with aggravated breaking and entering a dwelling house and committing a serious indictable offence, namely, assault occasioning actual bodily harm, contrary to s 112(2) of the Crimes Act. The aggravated form of the offence is made out if a person commits the offence under s 112(1) in circumstances of aggravation, in which case the maximum penalty is imprisonment for 20 years. Section 105A defined circumstances of aggravation to include cases where the alleged offender was in the company of other persons, or used corporal violence, or intentionally or recklessly inflicted actual bodily harm.

4. [4]

   The four men charged are brothers, and it will be convenient to refer to them by their given names. Mustapha was also charged on further counts of assault occasioning actual bodily harm and of common assault contrary to ss 59(1) and 61 of the Crimes Act.

5. [5]

   The Crown case was that at around 7pm on 16 October 2014 the four brothers arrived at a property in Guildford occupied by Ms Merrily Payne, her 6-year-old son and Mr Emil Mihai. Mustapha is Ms Payne’s brother-in-law, and he had introduced her to Mr Mihai, who was initially her boarder but with whom she had subsequently commenced a relationship. According to the Crown, the brothers entered the house and began kicking and punching Mr Mihai. Mustapha followed Ms Payne into the kitchen, and after a conversation Mustapha slapped Ms Payne in the mouth causing her to suffer a split lip. It was also alleged that Mustapha picked up Ms Payne’s young son and told him to “shut up”.

6. [6]

   The defence case was that Ms Payne had invited her brother-in-law into the premises, and that the injuries suffered by Mr Mihai were inflicted in self-defence.

7. [7]

   On 15 June 2016, the jury found all four brothers guilty of the offence contrary to s 112(2). Mustapha was found guilty of assault occasioning actual bodily harm but not guilty of common assault.

8. [8]

   By four separate appeals, all heard concurrently, each brother seeks leave to appeal his conviction on the charge of aggravated breaking and entering and committing a serious indictable offence. Mustapha does not seek to disturb his conviction for assault occasioning actual bodily harm.

9. [9]

   Each brother’s appeal is based on the same single ground, namely, that:

The Crown and defence cases at trial

1. [10]

   For some period of time, Mustapha had stored his caravan in Ms Payne’s garage, but a couple of months after Mr Mihai moved in with her, a dispute arose about Mustapha continuing to keep the caravan there.

2. [11]

   On the evening of 16 October 2014, there was an exchange of text messages between Ms Payne’s and Mustapha’s mobile phones. It is best to reproduce them below verbatim. Some of the messages disclose ordinary misspellings common to text messages, and may also reflect an auto-correct feature. There was also evidence that some of the messages from Ms Payne’s handset were typed by Mr Mihai, whose command of English was less than perfect. Mustapha was also known as Mick.

3. [12]

   In relation to the third message, there was evidence that Mustapha had informed Ms Payne’s landlord that she had a lodger, resulting in an increase to her rent. But only two things matter for present purposes in relation to those text messages. The first is that it was not contended that any of them constituted an invitation to enter Ms Payne’s home. The second is that it was not contended at trial or on appeal that they were said to constitute a trick or an artifice on the part of Mustapha to gain entry to Ms Payne’s home.

4. [13]

   The Crown case was that soon after the last text was sent, the brothers arrived at Ms Payne’s home, opened the door without knocking and approached Mr Mihai and began kicking and punching him. The Crown case was that the opening of the unlocked door was a breaking for the purpose of s 112(1).

5. [14]

   The defence case was that there was “a complete denial of break, in terms of what the law represents for that offence in New South Wales”. It was also contended that the brothers’ actions were taken in self-defence.

6. [15]

   All four brothers gave evidence at the trial. Each maintained under cross-examination that Mustapha had knocked before the brothers entered the house. Mustapha and Khaled both said that someone inside the house had said “come in” after Mustapha knocked. Hussein and Omar both said that they had heard a voice, but could not make out what was said.

7. [16]

   Ms Payne was called in the Crown case and gave evidence on the first and second days of the trial. On the afternoon of the first day, she said that the brothers entered her home without knocking and without invitation, and gave the following evidence when cross-examined by counsel for Mustapha and Khaled:

8. [17]

   Ms Payne maintained that Mustapha had often said he would visit her and had failed to show up. However, Ms Payne went on to give the following evidence, which was emphasised on appeal:

9. [18]

   On the basis of this evidence, it was said on appeal that even if the brothers’ evidence as to the knock and invitation (which had been denied by Ms Payne) was not accepted, the Crown was unable to establish to the criminal standard that Mustapha did not have standing permission to enter the home, and that, the brothers having entered Ms Payne’s house through an unlocked door, the element of breaking was not present.

The debate at the trial over the direction as to breaking

1. [19]

   Shortly after Ms Payne gave that evidence, the jury sent a note to the trial judge asking her Honour to explain the definition of break and enter. The trial judge initially proposed the following direction:

2. [20]

   However, there followed a discussion in which there was eventually agreement leading to a fuller direction:

3. [21]

   After a further exchange, her Honour then gave the proposed direction to the jury in the form agreed to by the parties, and indicated that it would be repeated at the conclusion of the trial.

4. [22]

   In the course of her summing up, her Honour gave the further direction which she had anticipated:

Submissions on appeal

1. [23]

   The parties’ written and oral submissions on appeal were commendably focussed and precise.

2. [24]

   Counsel for the brothers submitted that the trial judge erred in directing the jury that if a person intends to commit an unlawful act at the time that he or she is given permission to enter the house then there is a breaking. He said that a person’s intention in entering the house was irrelevant to the question of whether a breaking had occurred. He said that on the direction given by the trial judge, it was possible that the jury accepted that Mustapha had knocked and someone had called out “come in”, but still found that a breaking had occurred because the brothers had entered for an unlawful purpose.

3. [25]

   Counsel said that in order for the element to be satisfied, the Crown had to establish either an “actual” breaking or a “constructive” breaking. In relation to constructive breaking, counsel referred to the definition in R v Boyle [1954] 2 QB 292 at 295 by Lord Goddard CJ:

4. [26]

   Counsel for the brothers emphasised the need for some artifice, trick or threat so as to deceive the occupier into letting the wrongdoer in. Counsel said that “Ms Payne’s consent to their entry had not been obtained as a result of anything done or said by the applicants at the time of entry.”

5. [27]

   Counsel went on to submit that if the appeal were allowed, then the brothers should be found guilty of a lesser offence of assault, contrary to s 61 of the Crimes Act.

6. [28]

   In response, the Crown submitted that its case at trial was based on actual breaking on the basis that the brothers had opened the closed but unlocked door without permission. It was said that constructive breaking had never been put to the jury by the Crown. In such circumstances it was said that the impugned directions, even if legally wrong, would not have made a difference to the verdict.

7. [29]

   Alternatively, the Crown supported the correctness of the direction and submitted that:

8. [30]

   The Crown submitted that, accepting that the brothers had been permitted to enter, the brothers had an unlawful purpose at the time they did so and that this unlawful purpose meant there had been a constructive breaking.

9. [31]

   Finally, the Crown did not accept that if, contrary to the above, the conviction could not stand, a conviction for assault should be entered. The Crown pointed to the offence created by s 111 of the Crimes Act of entering a dwelling-house with intent to commit a serious indictable offence, which carried maximum penalties of 10 years, 14 years and 20 years imprisonment in its ordinary, aggravated and specially aggravated formulations. The Crown submitted that if the appeal were allowed, it should be left to the Director of Public Prosecutions to decide in the ordinary way whether another indictment should be presented and, if so, what offences should be charged.

10. [32]

    The parties did not provide Australian authority squarely on the question whether a person with permission to enter who entered by opening a closed door thereby committed an actual breaking. However, there are two Queensland appellate decisions, on cognate offences in the Criminal Code Act 1899 (Qld), which bear on this question. By letter dated 18 August 2017, the Court invited the parties to supply submissions on those decisions, and helpful submissions were received on 1 September 2017.

11. [33]

    In R v Williams [1988] 1 Qd R 289, the appellant was convicted at trial of burglary under s 419(1) of the Code. The defence case was that the accused was acquainted with the occupants of the flat and that he had entered it pursuant to a general invitation to visit at any time. At that time, s 419 provided:

12. [34]

    Carter J directly considered whether permission was relevant to whether a breaking had occurred:

13. [35]

    Carter J went on to refer to the judicial treatment of the English offence which altered the element from “breaking” to “trespass”:

14. [36]

    Macrossan J decided the case on the basis of the defence in s 22 of the Code of “honest claim of right without intention to defraud.” His Honour found that this section applied to the accused’s conduct, and there was no need to consider the common law meaning of “breaking”, and the relevance of consent.

15. [37]

    De Jersey J also rested his judgment on s 22, but part of his Honour’s reasoning was directed to whether consent vitiates a breaking:

16. [38]

    However, in R v Rigney [1996] 1 Qd R 551, Fitzgerald P, with whom in this respect Mackenzie J agreed, said at 554 that Williams was “incorrect and should be overruled”. Fitzgerald P expressed himself broadly, and criticised the reasons of Carter J and Macrossan J in Williams dealing with whether an authorised entry could be a break. Fitzgerald P noted that this Court’s decision in R v Dugan [1984] 2 NSWLR 554 had not been cited in Williams.

17. [39]

    With respect, it is not entirely clear what aspect of Williams should be regarded as overruled, and in particular whether it was intended merely to overturn the ratio (the availability of a Code defence under s 22) or the reasoning of Carter J, with the apparent (albeit obiter) support of de Jersey J. Further, Rigney was not a case of break, but instead a case under s 420 of the Code, of entering a dwelling house with intent to commit an indictable offence.

18. [40]

    The third member of the Court, Davies JA, said at 556

19. [41]

    In its written submissions, the Crown contended that “the approach taken in Dugan and Rigney should be followed in NSW” and that s 112 did “not purport to import a requirement that the ‘break’ be without authority or permission”.

20. [42]

    The applicants made the following submissions:

    1. (1)

       First, although the Code offence used the language of “breaks and enters”, s 419 required the person to break and enter the "dwelling house of another with intent to commit an indictable offence” (emphasis added). No such requirement that the house be that of another was present in s 112.

    2. (2)

       Secondly, Rigney was a case on s 420, rather than s 419, and there was no element of “breaking” in s 420, such that “the meaning of the expression ‘break’ did not arise at any point in Rigney’s case”.

    3. (3)

       Thirdly, Dugan was likewise not a case on breaking; it was a case relevantly on s 114(d) of the Crimes Act 1900 (NSW) which made it an offence to enter or remain in a building with intent to commit a felony or misdemeanour.

21. [43]

    The applicants concluded that no assistance could be derived from Rigney or Dugan, and that while the ratio of Williams was not directly applicable, that Court’s reasoning was supportive of the construction they advanced.

22. [44]

    There are, with respect, difficulties with analysing the Queensland authorities. Rigney purports to overrule Williams, but precisely to what extent is unclear. There was no occasion in Rigney to overrule Williams insofar as it addressed any element of breaking. To the extent that Rigney criticised Williams by reference to Dugan, once again Dugan did not concern any breaking. Further, I note that another aspect of Williams (in respect of the availability of the defence in s 22) was more recently relied upon in R v Waine [2006] 1 Qd R 458; [2005] QCA 312 at [25]. Those considerations, coupled with the fact that the offence created by s 419 of the Queensland Code was confined to breaking and entering the home of another, the significance of which may be seen below, makes it appropriate to approach the matter afresh, although after having regard to the persuasiveness of the reasoning in those decisions.

Consideration

1. [45]

   The threshold issue is whether leave should be granted to permit the applicants to challenge a direction to which counsel formerly appearing for them at trial had expressly agreed. However, the grant of leave under r 4 is squarely linked to the quality of any error and its significance at trial. In R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [13] it was said that generally leave would not be granted unless there was a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears. For the reasons which follow it is convenient to follow the course adopted by the parties in their submissions on appeal and to return to this after addressing the submissions on their merits.

2. [46]

   I would reject the Crown’s primary submission, which is in substance an invitation to conclude that because of the way the trial had been conducted, any error is immaterial such that there is no possibility of real injustice. The fact that the Crown case was based on actual breaking does not exclude the following two possibilities which were expressly left open by the trial judge’s direction.

   1. (1)

      First, the jury might have accepted that Mustapha knocked and Ms Payne said “come in”, but nevertheless found the brothers guilty on the basis that they had an unlawful purpose for entering.

   2. (2)

      Alternatively, even if the jury accepted that Ms Payne had not invited the brothers into her home, the jury might have accepted (on the basis of her concessions in cross-examination) that Mustapha had a general permission to enter but that that permission was vitiated by an unlawful purpose held by the brothers at the time they entered.

3. [47]

   If the brothers are right that the trial judge’s direction is erroneous, neither path towards a guilty verdict was permissible.

4. [48]

   The timing of the note from the jury, immediately after the evidence reproduced above from Ms Payne, suggests that such matters were at the forefront of at least some of the jurors’ assessment of the evidence. And indeed, the Crown addressed the jury on the basis of the second possibility:

5. [49]

   I would conclude that it was eminently possible that the jury reached their verdict in reliance on either or both of the approaches mentioned above. It is accordingly necessary to consider whether the direction is correct as a matter of law.

6. [50]

   At the conclusion of his history of colonial criminal law in New South Wales, Dr Woods wrote that:

7. [51]

   That well summarises the position in respect of s 112 of the Crimes Act, the offence of which the applicants were convicted. The immediate ancestor of s 112 was ss 106 and 107 of the Criminal Law Amendment Act 1883 (NSW), which in turn appear to have been taken from ss 55 and 56 of the English Larceny Act 1861 (24 & 25 Vic c 96). An earlier form of those provisions was found in s 14 of the English Larceny Consolidation Act 1827 (7 & 8 Geo IV c 29), which itself was one of the reforming laws made applicable to the colony by the colonial statute known as the Imperial Criminal Acts Adoption Act 1828 (9 Geo IV No 1). But all of that legislation invoked the familiar language of the common law offence of burglary – including the language of “break and enter” – and accordingly fell to be construed by reference to the common law.

8. [52]

   It is convenient to start with the position at common law, which directly informs the offences created by statute.

9. [53]

   By the seventeenth century, it was established that at common law, a burglar was “he that by night breaketh and entreth into a mansion house, with intent to commit a felony”: Blackstone, Commentaries on the Laws of England (Oxford University Press, 2016 edition), Vol IV, 224, quoting Coke, 3 Institutes 63. The unsettled state of the law in previous centuries is summarised by Sir John Baker, Oxford History of the Laws of England, (Oxford University Press, 2003), vol 6, p 572-3, although one thing had long been clear:

10. [54]

    In Archbold’s Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 35th ed, 1962), p1799 (an edition published before the 1968 amendments to which reference is made below) the offence is described as:

11. [55]

    “Breaking” was thus an essential element of the offence at common law. Hale stated:

12. [56]

    Hence the proliferation of decisions on what amounted to “breaking” at common law. Distinctions were drawn, for example, between opening a closed (but unlocked) door or window, and pushing further open an already ajar door or an already opened window: the former is a breaking, the latter is not. Some of the old English authorities are reviewed in Galea v R (1989) 1 WAR 450 at 455. Cases 8970-9042 in volume 14(2) of The Digest, Annotated British, Commonwealth and European Cases, (2nd Reissue, Butterworths, 1993) are decisions on the former law of breaking, dealing with windows, chimneys, holes in the roof and apertures in the cellar and the like.

13. [57]

    Such distinctions are undoubtedly very technical, but are nonetheless well-established and of continuing relevance where statute has not intruded. Thus “[i]t is a breaking to push open a closed but unsecured door, or to open a closed but unfastened window”: R v Walker (1978) 19 SASR 532 at 533; Stanford at [25]-[31]. In Stanford, Simpson J referred with approval to P Gillies, Criminal Law (1985, The Law Book Co Ltd) stating that

14. [58]

    In M Weinberg and C Williams, The Australian Law of Theft (Law Book Company, 1977), p 233 it is said that:

15. [59]

    Two things may be noted at this point. The first is that those distinctions underlay the Crown case at trial that the door to Ms Payne’s home was closed, as well as the cross-examination by the defence to the effect that it was slightly ajar. The second is that although the element of breaking recalls the element of the writ and later the standard count of civil trespass to land (the “fregit” in trespass quare clausum fregit), it is quite plain that this element of the offence at common law was narrower than the tort. A person who entered another’s house through an open door would commit an actionable trespass, but could not commit the crime of burglary. As Blackstone put it at 226:

16. [60]

    Very early in its development, the common law acknowledged a wider class of occasions when an entrant who did not use force nevertheless performed a breaking. This expansion to “constructive breaking” turns not upon the absence of permission to enter, but upon whether permission was obtained through an artifice or trick or threat. This may be seen in Blackstone and Hale. In R v Boyle, Lord Goddard CJ said at 295, by reference to Archbold, that “where the offender, with intent to commit a felony, obtains admission by some artifice, trick, or threat, for the purpose of effecting it”, the offender commits a constructive breaking. In Boyle, the accused falsely represented himself to be a representative of the British Broadcasting Corporation sent to examine a radio set. Lord Goddard said:

17. [61]

    In many other jurisdictions, including England and Victoria, the element of “breaking” has been replaced by the concept of trespass. In R v Collins [1973] QB 100 at 104, Edmund Davies LJ commented on the change as follows:

18. [62]

    In Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18, an appeal from a conviction under the Victorian statute which incorporated the 1968 English reforms, Brennan and Deane JJ summarised the history as follows:

19. [63]

    Had those amendments been enacted in New South Wales, they would resolve the issue which arises in this appeal. In R v Jones [1976] 3 All ER 54, the English Court of Appeal rejected the submission (described at 58 as “bold”) that a person with a general permission to enter could not be a trespasser for the purposes of the Theft Act 1968. The Court held that “a person is a trespasser for the purposes of s 9(1)(b) of the Theft Act 1968 if he enters the premises of another knowing that he is entering in excess of the permission that has been given to him ...”: at 59. This was confirmed in Barker v the Queen. (It is true that the introduction of the concept of trespass has itself given rise to complexities. Some are illustrated in Marks-Vincenti v The Queen (2015) 45 VR 313; [2015] VSCA 54 at [27]-[43] and in the decisions there considered. But these may be passed over for the purposes of this appeal.)

20. [64]

    The fact that law reform has occurred in other jurisdictions tends to suggest that changes to the technical distinctions derived from the common law on the meaning of “break” should await legislative intervention. This resembles what was stated (in a somewhat different context) in Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42; [2012] HCA 16 at [120]: they are “best resolved by legislative processes rather than by any extreme exercise in statutory interpretation by judicial decisions”. I also respectfully agree with Simpson J’s observation in Stanford at [44] that

21. [65]

    All of that said, the applicants were not convicted of burglary at common law. In order to construe the offence of which they were convicted, namely, s 112 of the Crimes Act 1900 (NSW), it is necessary to turn to the way in which colonial statutes modified the common law offence.

22. [66]

    In New South Wales, the offence of burglary was incorporated into statute by s 1 of the Imperial Criminal Acts Adoption Act 1828, which adopted the Larceny Consolidation Act 1827 in New South Wales. Section 11 of the latter Act was as follows:

23. [67]

    It will be seen that s 11 did two things. It not only incorporated the common law offence into statute, but it also, by the words following “and it is hereby declared”, expanded the offence to include the two cases contained in the deeming provision. The latter portion required the dwelling house to be that “of another”, which was also an element of the offence at common law (and thus unnecessary in the first portion of text).

24. [68]

    Substantial reforms were made in England by the Larceny Act 1861 (24 & 25 Vic c 96). Sections 55 and 56 were materially as follows:

25. [69]

    Section 55 was directed to the case where the elements of burglary were satisfied save that the building broken and entered into was within the curtilage of a dwelling house but not being part of one. (An example of the class of case to which the section appears to have been directed is R v Wenmouth (1860) 8 Cox CC 348, where an apprentice who lived in his master’s house and who broke into a shop which was detached from the rest of the house but connected to it by a passage.) Similarly, section 56 was directed to expanding the class of buildings to which the offence extended.

26. [70]

    But the 1861 statutes introduced complexity and reinforced the fine distinctions in this area of the law. Woods states at 246 that “the English criminal law statutes of 1861 were internally repetitive and in various respects imperfect”. (Indeed, he cites the complaint published in The Jurist that the consolidation was “insane”.) Even so, they were ultimately enacted as part of the (long-delayed) Criminal Law Amendment Act 1883 (NSW). Sections 55 and 56 of the English Act of 1861 became ss 106 and 107:

27. [71]

    The Crimes Act 1900 was a consolidation of the colonial legislation. The Commissioner for the Consolidation of Statute Law (Charles Gilbert Heydon) certified that s 112 was a consolidation of former provisions ss 106 and 107 (see “Commissioner’s Memorandum and Certificate” reproduced in H Cockshott and S Lamb, Statutes of New South Wales Vol IV pp 315, 318).

28. [72]

    Sections 106-115 of the Crimes Act 1900 as enacted came under the heading “Sacrilege, Burglary and Housebreaking”. Sections 106 and 107 dealt with breaking and entering places of worship. It is best to reproduce ss 108-113 as originally enacted in 1900 in their totality:

29. [73]

    In 1974, s 108 was omitted, and s 109 was altered to remove the element of night-time breaking and deemed burglary: Crimes and Other Acts (Amendment) Act 1974 (NSW), s 6. The distinction in s 112 between dwelling houses and other buildings persisted in various forms until 2007, when s 112 was expanded to cover the breaking and entering of “any dwelling house or other building” by paragraph 19 of Schedule 1 of the Crimes Amendment Act 2007 (NSW). The same legislation repealed ss 106 and 107. There were other changes to this group of provisions, which need not be mentioned for present purposes. They now take the following form (all save for s 110 also contain aggravated and specially aggravated formulations of the offence, which have been omitted in what follows for concision):

30. [74]

    The following matters may be noted from the legislative text and history summarised above.

31. [75]

    First, the original provision which picked up the offence at common law (which had been s 108) was repealed decades ago.

32. [76]

    Secondly, in the Crimes Act as enacted each of the offences created by ss 109, 110, 112 and 113 had “breaking” as an element (in the case of s 109, it was “breaking out” in the night). The exception, s 111, merely required entry at night. In the modern law, there is no longer any need to establish conduct at night (this was repealed by the Crimes and Other Acts Amendment Act 1974 (NSW), s 6 in respect of s 109 and the Crimes (Home Invasion) Amendment Act 1994, sch 1, s 11 in respect of s 111). However, s 111 remains the only offence in this part of the statute which does not include an element of breaking. (It is broadly analogous to s 420 of the Queensland Criminal Code, the section considered in R v Rigney.)

33. [77]

    Thirdly, although s 109 refers to a “dwelling-house of another” (reflecting the position at common law and the relative antiquity of this provision), each of ss 110, 111, 112 and 113 refer to entry, or breaking and entry, into “any” dwelling-house. These provisions derive from the 1861 English Act and the 1883 New South Wales Act.

34. [78]

    Fourthly, the offences carry different penalties and have different elements. Those distinctions should be observed when the sections are construed. It is axiomatic that these sections (together with the balance of the statute) are to be read together: see Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [43].

35. [79]

    I have concluded that the better view is that there is no actual breaking if the person has express or implied permission to enter through a closed (but unlocked) door, even if the person had felonious intent at the time he or she effected entry.

36. [80]

    First, I note that that appears to have been the view of Sir Matthew Hale, on which the applicants relied:

37. [81]

    The first part of that example turns on the contractual right of a lodger to enter and leave the inn. (The second part is less clear, because part of the offending conduct occurs during daylight.)

38. [82]

    Hale was writing of the common law, which is a convenient starting point, so long as it is borne in mind that it is no more than a starting point, because there are now numerous statutory offences derived from the common law offence but in various ways expanding it.

39. [83]

    Secondly, I turn to the statute. As Gleeson CJ said in Tabe v The Queen (2005) 225 CLR 418; [2005] HCA 59; at [24], the issue is ultimately one of legislative intention as to what are the elements of an offence created by statute. Section 112 and the related provisions use the term “break” in precisely the same sense as it was used at common law. Given the legislative context and history, it is clear that that term carries its meaning at common law, as Simpson J observed in Stanford.

40. [84]

    The Crimes Act 1900 (NSW) has no provision equivalent to s 418 of the Queensland Code considered by de Jersey J in Williams to the effect that a person who obtains entrance into a building by means of any threat or artifice is deemed to have broken and entered the building. However, there is no reason why the breaking required by s 112 (and ss 109, 110 and 113) would not include either actual or constructive breaking which had long been recognised by the common law, especially when s 108 had incorporated the common law offence.

41. [85]

    As noted above, the expanded concept of constructive breaking at common law left a class of entrants – those who entered without the use of force and whose entry was not effected by a threat, artifice or trick – outside the scope of breaking. Cases where entry is effected by a contractual right in the absence of any artifice, trick or threat are the very opposite of constructive breaking. That was the point made by an example given in R v Boyle:

42. [86]

    The Crown submitted that where there was an intent to commit a felony, there would be a constructive breaking, regardless of the existence or otherwise of permission. Although isolated statements to that effect can be found, I do not think that can be the law in New South Wales. For one thing, acceptance of the Crown’s submission would mean that s 111 would be wholly swallowed up by s 112, which is contrary to settled principle of statutory construction. For another, I do not consider that it reflects the weight of earlier authority. Moreover, I do not consider the Crown’s submission to be the correct reading of R v Boyle. As the example reproduced above makes plain, the requirements of felonious intent and entry by means of an artifice, trick or threat are cumulative in the case of burglary involving constructive breaking.

43. [87]

    The foregoing is also consistent with parts of the reasoning of Carter and de Jersey JJ in Williams. I respectfully do not regard anything that was said in Rigney (which was not a case involving breaking) undercuts the persuasiveness of what was said in Williams (which was a case involving breaking).

44. [88]

    Thirdly, the foregoing is strengthened by the statutory language drawing a distinction between “the dwelling-house of another” and “any dwelling house”. It may be that the broader term “any dwelling house” reflects the somewhat clumsy language of the 1861 English Act, adopted verbatim in this respect in New South Wales in 1883 and preserved to this day. Nonetheless, it falls to be construed in its terms, and on ordinary principles of statutory construction, the wider statutory text “any dwelling house” in ss 110-113 should be read as extending more broadly than “the dwelling-house of another” so as to include the person’s own dwelling-house. Given the statutory language, I think it would be wrong to read the words “any dwelling-house” where appearing in s 112 (and also ss 110, 111 and 113) as if they meant “any dwelling-house of another”. That would be to elide the difference between s 109 and the following sections. And, as Nettle J recently observed, it is a strong thing to read words into a statute: R v Holliday [2017] HCA 35 at [83].

45. [89]

    Thus the problem of a person “breaking” into a dwelling-house to which he or she is entitled to enter is acute in the statutory offences derived from burglary in the Crimes Act 1900 (NSW). That in turn makes it helpful to consider the most common cases of entry into a dwelling-house.

    1. (1)

       It seems unlikely that a co-owner or a co-tenant who enters his or her own home by opening a door, with the purpose of (say) stealing his or her spouse’s or flatmate’s jewellery thereby “breaks” as well as enters. The co-owner or co-tenant is a thief, but is authorised to enter the house because of his or her pre-existing property rights.

    2. (2)

       The same is surely true when an adult child living with his or her parents enters the family home, or when an owner’s friend enters with the owner. Even if the adult child or the friend has an intention to steal, once again it seems most unlikely that there is a “breaking”. The adult child or friend enters with the permission of someone with a proprietary right. There seems no difference between a long-term licence (such as that enjoyed by the adult child) and the ad hoc permission granted to the owner’s friend.

46. [90]

    Those examples focus attention on two elements: “breaking” and “dwelling-house of another”. Neither the co-owner nor the co-tenant nor the adult child could be guilty of burglary at common law, which involves the breaking into a dwelling-house of another. But it also seems highly unlikely that the friend who enters with the owner (or for that matter the employee of the gas company in Lord Goddard’s example) is breaking. That is because he or she is entering with the permission of the owner which permission has not been obtained by a trick, threat or artifice. I would strain against a conclusion that whether or not there is a “breaking” turns on whether the owner opens the door, or whether the friend or gas company employee accepts the owner’s invitation to open the door.

47. [91]

    The legislative history of the provisions, and the distinction drawn in them between “any dwelling-house” and “the dwelling-house of another” is a powerful consideration tending against reading “any dwelling-house” as meaning “any dwelling house save for one to which the person has permission to enter”. That in turn suggests that the limiting element which is required to prevent the unlikely results mentioned above turns not upon the class of dwelling-houses, but upon the character of the “breaking”.

48. [92]

    Recognising that in this quaintly technical area of the law, replete with fine distinctions, regard to ordinary usage is not necessarily a sound guide, it still seems wrong that non-forcible entry effected pursuant to a proprietary or a contractual right could be a breaking. The principle underlying this whole area of the law is that criminality is more serious if it takes place in a victim’s home into which the offender has broken without permission, or where permission has only been obtained by a trick or artifice or threat.

49. [93]

    Fourthly, some further support may be found in R v Shillingsworth [2003] NSWCCA 272 at [24], where Smart AJ said, with the agreement of Meagher JA and Sully J, and after referring to Carter J’s judgment in Williams, that “The appellant did not suggest that either AO or her husband had granted him general permission to enter their home.” That portion of the reasons appears to proceed on the basis that the consent of the proprietor was relevant to whether there was a breaking.

50. [94]

    Finally, I should mention that the applicants also sought to derive support from United States decisions. It is true that authority may be found in that country in support of the proposition that the common law offence of burglary cannot be made out where a person has been invited into a home. For example, in Clarke v Commonwealth 25 Gratt 908; 66 Va 908 (1874), the Supreme Court of Appeals of Virginia (Moncure P, with the concurrence of Anderson, Staples and Bouldin JJ) said at 919-920:

51. [95]

    Further American cases are collected in an anonymous note, “A Rationale of the Law of Burglary” 51 Columbia Law Review 1009 (1951), which was cited by Brennan and Deane JJ in Barker. The author was most critical of the fine distinctions in the element of breaking (“any attempt to differentiate behavior on the basis of the concept of breaking must result in a tangle of incongruous distinctions”: at 1013). The author concluded at 1014 that:

52. [96]

    However, care must be taken with the United States authorities, which are numerous, and for the most part turn on codifications of the common law, which exhibit the same profusion of subtle differences apparent in the New South Wales and Queensland legislation already referred to. In any event, the elements of s 112 of the Crimes Act are better addressed as a question of statutory construction, albeit one which is informed by the elements of the common law offence of burglary.

Conclusion and orders

1. [97]

   I conclude that the position is as follows.

   1. (1)

      If a person intends to commit an unlawful act at the time he or she is given permission to enter a dwelling-house, then he or she will be a trespasser and apt to be guilty of the offences created by more modern statutes, including those in England and Victoria, which have removed the element of “breaking”.

   2. (2)

      If a person intends to commit an unlawful act at the time he or she is given permission to enter, and that permission is obtained by a trick or an artifice or a threat, then there will be a constructive breaking even if entry is effected without using any force, which is sufficient to satisfy the element of breaking at common law and under statutory offences derived from burglary.

   3. (3)

      However, if a person intends to commit an unlawful act on premises which he or she is permitted to enter, and that permission has been obtained without any trickery, artifice or threat, and entry is effected without using any force, then there is neither a constructive breaking nor an actual breaking. In that circumstance, the person will be committing the offence created by s 111, but not that created by s 112 (nor will he or she be committing burglary at common law).

2. [98]

   That conclusion is supported by (a) the differentiation required by the Crimes Act between the separate offences with separate penalties created by ss 111 and 112; (b) the fact that the Crimes Act continues to rely on the common law concept of “breaking”, which concept although expanded to include constructive breaking, turns on the way in which permission has been obtained rather than the intent of the person entering the land; (c) the example given by Lord Goddard CJ in R v Boyle and what was said, obiter, in Williams and Shillingsworth; (d) the difference between “any dwelling-house” and “the dwelling-house of another” in the Act, suggesting that the limits of the offence created by s 112 are not delimited by what is a “dwelling-house” so much as by what amounts to a breaking; and (e) the underlying purpose of the offence, which is that “breaking and entering” someone’s home before committing a crime is a more serious offence than merely committing the crime, such that the aggravating element of breaking cannot readily be applied to a person who has a pre-existing right to enter.

3. [99]

   The result is that I would accept the applicants’ submission that the direction given by the trial judge was wrong in law. The misdirection, although contributed to by counsel then appearing for the applicants, went directly to an element of the offence with which they were charged. There is no suggestion that there was anything deliberate or tactical about the discussion which occurred; it was simply a case where in an area of the law which is far from free from complexity, all parties proceeded on an erroneous basis. The jury’s conviction may have resulted from an acceptance to the criminal standard that the four brothers intended to assault Mr Mihai, even though they were not persuaded beyond reasonable doubt that Mustapha had not been invited in or had not been given a general licence to enter his sister-in-law’s home. If that is so, then the misdirection will have denied the applicants of the acquittal in relation to s 112 to which they may otherwise have been entitled. In those circumstances, there should be the requisite grant of leave pursuant to r 4.

4. [100]

   In written submissions, but not orally, the Crown relied on the proviso, although without elaboration. The reasons already given establish that this is not a case for the application of the proviso. If the jury convicted because they were persuaded that even though Mustapha had a right to enter, or had been invited to enter, the applicants did so with the intent of assaulting Mihai, then they should not have been found guilty of the offence with which they had been charged.

5. [101]

   Finally, I have considered whether this Court should exercise the power conferred by s 7(2) of the Criminal Appeal Act 1912 (NSW) and substitute a verdict of guilty to a lesser offence, but two matters stand against that course. The first is that the jury’s guilty verdict does not carry with it a conclusion to the criminal standard that the brothers entered Ms Payne’s home with intent to commit the assault that the jury found was committed. The second is that it may be that, properly directed, the jury would still have convicted the men of an offence under s 112 (for I do not consider that the evidence given by Ms Payne was sufficient inevitably to give rise to the reasonable possibility that Mustapha had a standing permission to enter her home).

6. [102]

   Thus I would accept the Crown’s submission that the appropriate course is for the convictions to be quashed, but it to be left to the Director of Public Prosecutions to determine whether a fresh indictment should be presented, and, if so, what it should contain. As noted in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104] and [137], the direction that there be a retrial does not detract from the discretion on the part of the prosecuting authority to determine whether that trial will take place.

7. [103]

   I propose the following orders in each appeal:

8. [104]

   BELLEW J: I agree with Leeming JA.

9. [105]

   LONERGAN J: I agree with Leeming JA.