R v BA

1. [1]

   BRERETON JA: The respondent was presented for trial before Williams SC DCJ without a jury in the District Court at Goulburn on 7 September 2020, on an indictment which charged him with an offence of break and enter and commit serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) contrary to (NSW) Crimes Act 1900 (“Crimes Act”), s 112(2), to which he pleaded not guilty.

2. [2]

   The Crown case was that from about September 2018 the respondent and the complainant had resided together in an apartment in Queanbeyan, which they occupied as tenants under a residential tenancy agreement dated 29 August 2018 (“the lease”), in which both were named as lessees. They separated in about May 2019, when the respondent moved out of the premises and took with him most, but not all, of his possessions. He ceased to pay rent after about April 2019, but the lease was not terminated until 23 July 2019, and the respondent remained at law one of the lessees of the premises until then.

3. [3]

   On 4 July 2019, the complainant’s mother came to help her pack up the respondent’s remaining possessions, in response to a request from the complainant who had become concerned about threats of violence said to have been made by the respondent, and stayed until 7 July 2019, when she left. On 8 July 2019 – when the lease was still on foot – at about 6:00am, the respondent arrived at the apartment. He screamed at the complainant and demanded to be allowed in. When he was not permitted access, he kicked open the door, which was secured by three locks, including a deadlock, and forced it inwards, causing the deadlock to shatter the wooden doorframe. Once inside, he grabbed the complainant by her shoulders, shook her and yelled at her, seized her mobile phone when she endeavoured to make a call, and threw it to the floor.

4. [4]

   At the conclusion of the Crown case, the respondent applied for a directed verdict of not guilty, on the basis that as a lessee of the premises he had a right to enter them and could not be guilty of breaking into them. The trial judge, referring to Ghamrawi v R (“Ghamrawi”), [1] upheld the application and directed a verdict of not guilty, and the respondent was thereby acquitted. The Crown appeals to this Court, pursuant to (NSW) Crimes (Appeal and Review) Act 2001 (“CARA”), s 107, which relevantly provides that the Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an acquittal of a person by a jury at the direction of the trial judge, or by a judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the judge without a jury, on any ground that involves a question of law alone. The notice of appeal identifies the relevant question of law as:

5. [5]

   Section 112 is in Part 4, Division 4 of the Crimes Act, which is entitled “Sacrilege and housebreaking”, and makes provision for the following offences (omitting the aggravated and especially aggravated versions of those which have them):

6. [6]

   The history and evolution of these provisions was comprehensively examined by Leeming JA in Ghamrawi. Relevantly, his Honour, with whom Bellew J and Lonergan J agreed, said: [2]

7. [7]

   His Honour thus held that, for the purpose of s 112, there is neither actual nor constructive breaking if a person, intending to commit an unlawful act on premises that she or he is permitted to enter, such permission having been obtained without trickery, artifice, or threat, gains entry without using force. His Honour did not deal with the position where a person gains entry using force.

8. [8]

   In the present case, the trial judge took the view that there was no relevant distinction between a forcible and a non-forcible entry in this respect. His Honour said: [3]

9. [9]

   The Crown submitted that Ghamrawi distinguished a forcible from a non-forcible entry, and permission did not authorise a forcible entry; and that the respondent’s authority to enter depended on the lease, and the (NSW) Residential Tenancies Act 2010 (“RTA”), s 51(1)(d), meant that his authority did not extend to a forcible entry, because it prohibited him from damaging the premises.

10. [10]

    It is true that in Ghamrawi, Leeming JA expressed his conclusion in terms of an “entry … effected without using any force”, but his Honour did not address what would be the position if the permission to enter extended to a use of force. In my view, whether an entry is or is not forcible provides an unsatisfactory discriminator in this area. It seems wrong that a person who is authorised to gain entry to premises, including by forcible means, would commit a breaking by doing so. It is the scope of the permission, rather than whether or not the entry is forcible, that is determinative. This is supported by the commentary in Russell on Crime that “in Hale 354, 335 it is suggested that for a servant to unlatch a door and turn a key in a door of his master’s house, the opening being within his trust, is no burglary, but that it is burglary if he breaks open a door in the house, such breaking not being within his trust”. [4] Thus it is the scope of the permission – or, as I explain below, better characterised as the scope of the consent – that defines whether or not a forcible entry is, or is not, a “break”. In my judgment, the trial judge was right to hold that in this respect there was no relevant difference between a forcible and a non-forcible break.

11. [11]

    I do not consider that the answer to this case is provided by RTA, s 51, as the Crown submits. That section is relevantly as follows:

12. [12]

    In my view, s 51(1)(d) (like the other provisions of s 51) is concerned only with regulating the respective rights and obligations inter se of landlord and tenant, and does not create an independent statutory obligation which can be relied on for other purposes. The effect of s 51(5) is that breach by a tenant entitles the landlord to claim compensation, and/or to terminate the lease. [5] However, there is no penalty for a contravention, as one would expect if it created an obligation that extended beyond the rights inter se of the parties to the lease. The Act itself bears the long title “An Act with respect to the rights and obligations of landlords and tenants, rents, rental bonds and other matters relating to residential tenancy agreements; and for other purposes”. Its subject matter is rights, obligations, and disputes between landlords and tenants. Section 51 appears in Division 3 of Part 3, which makes provision for the right of a tenant to use and occupy the leased premises. While it is entirely understandable that as between landlord and tenant, there would be an obligation on the tenant not to “intentionally or negligently cause or permit any damage” to the premises, it would be extraordinary if that obligation had the consequence that acts which were otherwise lawful in the criminal law context were thereby rendered unlawful. Accordingly, to the extent that the respondent’s rights as a tenant under the lease, which I accept remained on foot at the time of the alleged offence, authorised him to enter the property, I would not hold that those rights were relevantly constrained by s 51.

13. [13]

    However, for the reasons that follow, while the rights of the respondent as a co-tenant under the lease included (as against the landlord) a right to possession and occupation of the premises, and incidental thereto to enter them, such rights in my view were not a relevant consent to an entry, whether or not forcible, vis-à-vis the complainant.

14. [14]

    Two general propositions of relevance to the present case can first be stated.

15. [15]

    First, there is no offence of “breaking”, or “breaking and entering”, a dwelling-house or other building, simpliciter. “Breaking” and “entering” give rise to criminal liability only if preceded or followed by the commission of a serious indictable offence therein, or if accompanied by an intention to commit such an offence. No offence is committed unless a serious indictable offence is committed, or is intended to be committed, in the dwelling-house (or other building). Thus no offence of “breaking” and/or “entering” is committed by a person entitled to occupy premises who merely forces entry having been locked out; nor by a squatter who does so merely intending to sleep within the dwelling for a night. It is a reflection of this that those offences which involve an entry followed by the commission of a felony, or the commission of a felony followed by a breaking out, are not complete until the last act of the relevant sequence is committed; [6] that for those which involve an entry with intent to commit a felony, that intent must be shown to have been present at the time of entry; [7] and that (as liability depends on the commission, or intention to commit, a serious indictable offence), an honestly held belief of a right to the property stolen is a defence to a charge of break enter and steal. [8]

16. [16]

    Secondly, with the exception of Crimes Act, s 109 (which refers to the dwelling house “of another”), these provisions do not exclude liability for breaking, entering, and committing a serious indictable offence in one’s own dwelling house. Leeming JA drew attention to this in Ghamrawi: [9]

17. [17]

    Recognising that principle, the purpose of these provisions is to protect the security of the occupants of dwelling-houses (and other buildings). The fact that liability for breaking into one’s own dwelling (or other building) is not excluded is indicative that a right to enter, founded on a proprietary or leasehold interest, does not of itself negate a “break”; that the concern is for the protection of the security of occupants, rather than of owners per se; and that protection is not limited to those with a legal right of possession or occupation. In this respect, the criminal law is concerned to protect any occupant, regardless of whether they have a legal right of possession or occupation: thus protection is not limited to owner-occupiers, but includes tenants, licensees, and even squatters. For example, a former tenant who remains in occupation even after an order for ejectment has been made would still be protected by the criminal law if the owner were to break in and commit a serious indictable offence. Liability depends on whether the entry was achieved by a “break”, and followed by the commission of a serious indictable offence. Thus if the sole owner of a house, occupied by his or her child, breaks into it to assault the child’s partner, the owner commits the offence. Likewise if an owner breaks into his or her owner-occupied home, in which the owner’s child is also resident, to assault the child’s partner. It is therefore not correct that a person who has a legal right to enter cannot be guilty of breaking.

18. [18]

    A break does not require an actual breaking of any object, but an infringement of the integrity of the security of the house. Thus to enter or depart through an open door or window is not a breaking, even if it involves further opening a door or window which is already partly open, unless doing so involves tampering with some fastening device; [10] nor is it a breaking to knock on a door with the unintended result that the door partly opens. [11] However, it is a breaking to open a closed, albeit unlocked, door or window, [12] and the opening of an interior closed door is sufficient. [13]

19. [19]

    Although there is no physical infringement of the integrity of the home, there will be a “constructive” break where the perpetrator gains admission without the use of force, but by fraud, threats, or the use of a key which the person is not entitled to use. [14] But there is no “break” where permission to enter the premises is obtained “without artifice, trickery, or threat”, regardless of what the perpetrator intends to do once in the premises. [15]

20. [20]

    However, as Leeming JA explained in Ghamrawi, there are circumstances in which an entrant is permitted to enter premises, in which it seems counter-intuitive to hold that there has been a “break”, even if the entry was accompanied by felonious intent. [16] In my opinion, there will not be a “break” if the entry is in accordance with the permission – better characterised as consent – of the occupant (unless that consent has been obtained by fraud etc).

21. [21]

    For the reasons already given, I do not think that a right of entry derived from a proprietary, leasehold, or contractual interest, independent from the consent of the actual occupant, suffices for that purpose; such a construction would defeat the purpose of the legislation in affording protection to occupants. There are many areas of the criminal law in which consent renders innocent conduct which would otherwise be criminal, and it is the consent of the victim that is relevant. As this area of the law is concerned with the protection of the security of occupants of dwelling-houses and other buildings (and of their property within them), it is the consent, express or implied, of the relevant occupant that is required.

22. [22]

    In the first of the two examples given by Leeming JA in Ghamrawi, [17] the entrant implicitly had the permission of the co-owner or co-tenant to enter; and in the second example, the adult child had the permission of the parents to enter. In my view, in the context of the relevant provisions of the Crimes Act, it is preferable to see these permissions as relevant not because they derive from a proprietary or possessory right, but because they are given by the occupant for whose protection these offences exist.

23. [23]

    This analysis is supported by two cases which were referred to by Leeming JA in Ghamrawi. In R v Williams, [18] the appellant was convicted of burglary under (QLD) Criminal Code Act 1899 (“the Code”), s 419(1). 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. As to whether permission was relevant to whether there had been a breaking, Carter J said that while lack of authority is not an ‘element’ of the offence of burglary as defined by ss 418 and 419 of the Code, the offence was one proof of which necessarily involved proof that the alleged offender lacked authority. [19] Macrossan J decided the case on a basis that did not require consideration of the common law meaning of “breaking” or the relevance of consent. De Jersey J (as he then was) also decided the case on that other basis, but addressed the question of consent as follows: [20]

24. [24]

    His Honour drew some support for absence of consent or authority being relevant, from an aspect of the definition of breaking and entering in s 418 of the Code, which provided: [21]

25. [25]

    His Honour continued: [22]

26. [26]

    In my view, that is equally applicable to the common law. Williams was disapproved by the Queensland Court of Appeal in R v Rigney (“Rigney”), [23] but as Leeming JA points out in Ghamrawi, the scope of the disapproval is unclear, and the offence in Rigney was one of which “breaking” was not an element. [24]

27. [27]

    In R v Shillingsworth, [25] Smart AJ, with whom Meagher JA and Sully J agreed, after referring to Carter J’s judgment in Williams, said that “[t]he appellant did not suggest that either AO or her husband had granted him general permission to enter their home.” That statement appears to proceed on the basis that the consent of the occupant was relevant to whether there was a breaking. [26]

28. [28]

    For those reasons, in my opinion:

    1. (1)

       the preferable explanation of the basis on which a person who is permitted to enter premises may do so without committing a “break” is the consent of the occupant in fact, as distinct from proprietary or contractual rights derived from third parties;

    2. (2)

       whether or not a forcible entry pursuant to a consent is a break depends on the scope of the consent. A person who, with the occupant’s consent, enters the property in a manner within the scope of the consent commits no “break”; and

    3. (3)

       an entry effected pursuant to a proprietary or contractual right can nonetheless involve a break, if it is made otherwise than in compliance with the consent of the actual occupant.

29. [29]

    In the present case, while their relationship remained on foot, each of the respondent and the complainant undoubtedly had the other’s consent to enter the premises. However, on the Crown case, when the respondent moved out, although he retained a legal right derived from the lease to enter the property, the consent of the complainant as actual occupant to him entering the property at all, let alone by force, was implicitly if not explicitly revoked. On the Crown case, on the occasion of the alleged offence, he plainly did not have her consent to enter. Though he would commit no legal wrong by merely entering the property simpliciter – he would not be a trespasser – and (at least arguably) not even by forcibly breaking into it; if he were to do so without the complainant’s consent and then commit a serious indictable offence, he would commit an offence against Crimes Act, s 112.

30. [30]

    In my opinion, therefore, the trial judge erred in holding that the prosecution had to negative that the respondent had a legal right of entry to the property, although it did have to negative that the respondent had the complainant’s consent to do so.

31. [31]

    Pursuant to CARA, ss 107(5)-(6), the Court of Criminal Appeal may affirm or quash the acquittal appealed against, and if the acquittal is quashed, may order a new trial in such manner as the Court thinks fit. Although expressed in different terms to (NSW) Criminal Appeal Act 1912, s 5D, these provisions should be understood as incorporating the “residual discretion” of a Court of Criminal Appeal to dismiss a Crown appeal notwithstanding the establishment of material error in the decision of the trial judge, [27] and it is for the Crown to satisfy this Court that it should not exercise its residual discretion to decline to intervene. [28]

32. [32]

    In this respect, the public interest in the due prosecution and conviction of offenders is a weighty consideration. So is the purpose of a Crown appeal, which is not for the mere correction of error in an individual case, but to provide general guidance. In this case, the regular course of justice has miscarried, because the respondent has not been tried in accordance with law, having been acquitted by direction on an incorrect basis, with the result that the charge against him was never considered on a correct basis by the tribunal of fact. And such a consideration has all the more force where it occurred on the application of the accused, at a relatively early stage of the trial. Moreover, the Crown submitted that similar situations, involving an estranged partner entering premises formerly shared with a complainant, are not uncommon, and the purpose of the appeal was not merely to correct error in the instant case, but also to provide guidance in the future in like cases.

33. [33]

    It is true that, as the Crown acknowledged, the argument which it advanced in this Court (based on the RTA) was not relied on by it before the trial judge: it was common ground that the Crown had opposed the application on the basis that where the entry was by forcible means, the scope of the authority was irrelevant. It is also true that the basis on which, at least in my judgment, the respondent’s application ought to have failed was not advanced by the Crown, even on the appeal, although it is necessarily raised by the respondent’s submission that one cannot be guilty of breaking into premises which one is entitled to enter. However, the error was the result of the respondent’s own application; it was not one for which the Crown was responsible.

34. [34]

    The lesser offences (common assault, intimidation, and destroy property), to which the respondent entered pleas of guilty, do not represent the total criminality of his alleged offending. They do not take into account that the charged conduct took place in the complainant’s dwelling-house, in which she was entitled to feel secure, the assurance of that sense of security being the very rationale of the offence in s 112.

35. [35]

    In those circumstances, there is no injustice in quashing the acquittal and ordering a retrial, leaving it for the Crown’s prosecutorial discretion whether or not it proceeds.

36. [36]

    I agree with the orders proposed by Adamson J.

37. [37]

    FULLERTON J: I have read the judgments of Brereton JA and Adamson J circulated by their Honours in draft and agree with the orders proposed by Adamson J.

38. [38]

    It is unnecessary to restate the facts adduced at the respondent’s trial referable to which the trial judge directed an acquittal in order to make clear my reasons for doing so.

39. [39]

    The question of law raised by the appeal is whether the trial judge erred in holding that, as a pre-condition to proof of the element of “breaking” for the offence pursuant to s 112(2) of the Crimes Act upon which the respondent was arraigned, the prosecution was required to establish that the respondent did not have a pre-existing right to enter the apartment in which his former partner resided, irrespective of whether he gained entry to the apartment by force.

40. [40]

    Limiting myself to that question, and for present purposes limiting myself to the fact that the respondent forcibly broke into and entered an apartment where he was not residing but in respect of which he claimed a contractual right to enter under an extant tenancy agreement, in my view it was not the accused’s legal right to enter the apartment which the prosecution was obliged to negative in proof of his guilt. What the prosecution was obliged to establish in the factual context in which it was alleged the offence was committed was that the respondent’s entry into the apartment, by breaking through the locked door, occurred without the express or implied permission of his former partner as the person in continuing occupation of the premises as co-tenant under the existing lease. Although the evidence in the trial established that the respondent gained entry by “breaking” through the locked door of the apartment against his former partner’s protestations, from which it can be readily inferred that he broke into and entered the premises without her permission, I am of the view that even were he to have broken in by force in her absence and committed the indictable offence of larceny or wilful damage to property once in the apartment, or if he had gained entry by non-forcible means or through a trick or artifice, including by a threat or other inducement before committing a serious indictable offence, his liability for an offence under s 112(2) would be no different. While by intentionally damaging the door to effect entry the respondent was also in direct violation of his obligations under s 51 of the Residential Tenancies Act (and, incidentally, also guilty of the offence in s 195 of the Crimes Act of intentional damage to the property of another (being the landlord)), that fact was not determinative of the respondent’s criminal liability for an offence against s 112(2) of the Crimes Act.

41. [41]

    I agree with Brereton JA that in respect of the offences in Part 4, Division 4 of the Crimes Act which involve proof beyond reasonable doubt of a breaking into or out of premises (both the dwelling-house of another under s 109 and any dwelling-house or other building under s 112, including, as his Honour observed, a dwelling-house owned or occupied by an accused) where a right to enter the premises is asserted or raised by the evidence, it is the scope of the permission, express or implied, of those either in occupation of the premises or those entitled to occupy those premises that is the critical focus, irrespective of whether, in the particular circumstances, the “break” involves physical interference with the building’s security (such as by opening an unlocked door) or the break is effected by force.

42. [42]

    That analysis is consistent with the detailed analysis of what constitutes a break for the purposes of the criminal law in Ghamrawi, the relevant passages from which were extracted in the judgments of Brereton JA and Adamson J.

43. [43]

    In my view, where an accused claims a right to enter the subject premises, the obligation on the prosecution to prove that the breaking into or out of those premises was without relevant permission at the time the offence was alleged to have been committed is the same irrespective of whether the claimed right derives from an existing proprietary right as owner (or joint owner) of an estate in fee simple or a contractual right as a tenant (or co-tenant) under a residential tenancy agreement or even as a bare licensee as might be the case where the accused was in a domestic relationship with the person who resides at the premises but is neither a co-tenant of leased premises nor a co-owner.

44. [44]

    While I accept that the analysis Brereton JA proposes at [28] offers some guidance to the question whether a break has been committed by an accused who claims to have been permitted to enter the premises where an offence in Part 4, Division 4 of the Crimes Act is alleged, even on that helpful analysis, problems of proof present, exemplifying the need for each case to be determined on the evidence adduced by the prosecution in proof of guilt and any evidence by an accused raising a reasonable doubt as to that fact.

45. [45]

    This is particularly the case where there was a proprietary right to enter the premises said to have been broken into, as was recognised by Leeming JA in the examples his Honour gave in Ghamrawi at [89](1) and (2) (set out in full in Brereton JA’s judgment at [16]).

46. [46]

    I offer the following scenarios by way of further example. It would seem to me by no means clear that an offence against s 112(2) would be committed where one partner in an existing domestic relationship is temporarily, even physically, ejected from the premises in which she resides as a co-owner after a verbal argument, but who returns some hours later, entering through the unlocked front door knowing that entry was against the express wishes of the other partner and an assault ensues where serious injuries are inflicted by the returning partner or another serious indictable offence is committed by that person. Even where a non-proprietary right to enter is asserted, problems of proof might present. For example, it is also by no means clear that an offence against s 112(2) would be committed where there are multiple occupants of leased premises and the accused, a former tenant, gains entry by opening an unlocked screen door to the premises (without knocking) to visit one of the tenants, knowing that in doing so it was against the express wishes of another tenant, and once inside opportunistically steals property.

47. [47]

    ADAMSON J: The Crown appeals pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) against a directed acquittal of BA (the respondent) for the offence of break and enter and commit serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) contrary to s 112(2) of the Crimes Act 1900 (NSW). The Crown’s right of appeal under s 107 of the Crimes (Appeal and Review) Act is limited to “any ground that involves a question of law alone”.

48. [48]

    The question of law identified in the notice of appeal is:

49. [49]

    Because the question concerns the correct construction of s 112 of the Crimes Act and the formulation of the elements of the offence created by that provision, it raises a question of law alone: R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [6] and [27] (Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing).

The factual background

1. [50]

   The Crown case can be shortly stated. The complainant and the respondent resided at a rental apartment in Queanbeyan from about September 2018. Their right to possession derived from a residential tenancy agreement dated 29 August 2018 to which they were each co-tenants (the RTA). In about April 2019, the respondent ceased paying rent under the RTA, although he remained a co-tenant under the RTA which was not terminated until 23 July 2019. Their relationship came to an end in about May 2019 at which time the respondent moved out of the premises and took most of his possessions with him.

2. [51]

   On 4 July 2019, the complainant, who had become concerned about the respondent’s threats of violence, telephoned her mother, who came to help her pack up those of the respondent’s possessions which remained in the apartment. The complainant’s mother left on 7 July 2019 and returned to Melbourne.

3. [52]

   On 8 July 2019, at about 6am, the respondent went to the apartment. The front door was locked by three locks, including a deadlock. He screamed at the complainant and demanded to be allowed in. He kicked open the door, forced it inwards and caused the deadlock to shatter the wooden doorframe. Once inside, the respondent grabbed the complainant by her shoulders and shook her and yelled at her. He took hold of her mobile phone and threw it to the floor.

4. [53]

   At the close of the Crown case, the respondent’s counsel applied for a directed verdict of acquittal. He argued that because the respondent was named as a tenant in the RTA, he had a right to enter the apartment and could not be guilty of breaking into his own premises. In response, the Crown relied on Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195 (Ghamrawi) in support of the proposition that a right or authority to enter premises did not extend to a forcible break.

5. [54]

   His Honour rejected the Crown’s submission and, on 8 September 2020, directed a verdict of acquittal on the basis that the Crown had not established that the respondent did not have authority to enter the apartment as he had a contractual right of occupancy under the RTA. His Honour addressed Ghamrawi and referred to what Leeming JA (Bellew and Lonergan JJ agreeing) said at [92] in the following passage:

6. [55]

   The trial judge continued by citing the following passage from Ghamrawi at [98] in which Leeming JA referred to:

7. [56]

   The trial judge’s conclusions appear in the following passage from the judgment:

Consideration

1. [57]

   The Crown submitted that the directed acquittal was erroneous because the essential precondition which the Crown had to prove was not that the respondent had a right to enter the premises, but rather than the respondent did not have authority to forcibly break into them. The Crown sought to draw a distinction between a “break” which did not damage the property (such as would occur when the entrant opens a closed, unlocked door) and one which damages the property (such as occurred, on the Crown case, in the present case). The Crown submitted that, while permission may be given to open a closed but unlocked door, this permission does not extend to forcibly damaging the door and breaking into the premises. Thus, the Crown contended that the scope of the permission, or authority, to enter was significant when determining whether there was a “break” for the purposes of s 112 of the Crimes Act.

2. [58]

   When addressing this Court, the Crown accepted that the solicitor advocate in the Court below had submitted that permission was irrelevant where the entry was effected by force. The Crown in this Court put what it described as a “more nuanced” position: namely, that it was necessary to determine the ambit of the permission to enter in order to determine whether there was a break for the purposes of s 112 of the Crimes Act. The Crown acknowledged that the failure to put the argument in this way in the Court below was relevant to whether this Court ought remit the matter to the District Court for a new trial or whether it ought merely state the correct law but dismiss the appeal.

3. [59]

   In Ghamrawi, the appellants’ conviction for offences of aggravated breaking and entering and committing a serious indictable offence therein under s 112(2) of the Crimes Act was set aside and an acquittal entered. The appeal was allowed because the appellants had permission to enter the premises; the permission had been obtained without “trickery, artifice or threat”; and entry was gained without using force: [97]. Because they had entered, with permission, through an unlocked door, the Court held that there was no “breaking”. Had they entered through an unlocked door without permission, this would have been a “break” because there was an interference with the physical integrity of the property. Thus, Ghamrawi established that permission to enter a dwelling house or other building will only negate a break that involves physical interference with the building’s physical security (such as by opening an unlocked door) where the break is non-forcible (that is, non-violent).

4. [60]

   In addressing what constituted a “break”, the Court also said, at [89]:

5. [61]

   It was common ground that the sole registered proprietor of an estate in fee simple of residential premises would not commit any offence, even if that person broke into the premises by force and damaged the property to effect entry. On the authority of Ghamrawi, a co-owner or co-tenant whose entry the property to commit a criminal offence was not forcible would not be guilty of an offence against s 112 of the Crimes Act.

6. [62]

   However, because the RTA is governed by the Residential Tenancies Act 2010 (NSW) (RTA Act), it is necessary to have regard to its provisions. Division 3 in Part 3 of the RTA Act, makes provision for the right of a tenant to use and occupy the premises. Section 51 of the RTA Act relevantly provides:

7. [63]

   The effect of s 51(5) is that breach by a tenant will also entitle the landlord to rely on the breach to terminate the agreement: Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28 at [22] (Basten JA, Gleeson and Leeming JJA agreeing). However, it is significant that s 51 does not, in terms, limit the import or effect of s 51(1)(d) to the status of a term implied by the RTA Act into every residential tenancy agreement. Section 51(1)(d) is, thus, also a stand-alone prohibition, albeit one for which no penalty is stated within the provision itself. While it can be inferred that its usual purpose is to provide a basis for termination or an order requiring the tenant to remedy a breach, I am not persuaded that its effect ought be limited to the four corners of a residential tenancy agreement.

8. [64]

   In my view, the right to possession of the premises which the RTA conferred on the respondent did not authorise him to enter by the use of force in circumstances where the use of force would damage the premises in breach of the prohibition imposed by s 51(1)(d) of the RTA Act. In other words, the prohibition in s 51(1)(d) qualified the respondent’s right to enter the premises which was otherwise conferred by the RTA. Accordingly, I am satisfied that the trial judge was in error to conclude that the respondent had a right to enter simpliciter and therefore could not be guilty of breaking into his own premises. The RTA authorised the respondent to enter (or break) by non-forcible means since, if he sought to enter by forcible means he would be in breach of the statutory prohibition in s 51(1)(d) of the RTA Act and therefore would not be authorised to enter. In these circumstances, I am satisfied that the acquittal ought be quashed.

9. [65]

   Pursuant to s 107(5) of the Crimes (Appeal and Review) Act, this Court may affirm or quash the acquittal appealed against. If the acquittal is quashed, this Court may, pursuant to s 107(6), order a new trial “in such manner as the Court thinks fit.”

10. [66]

    Mr Odgers SC, who appeared on behalf of the respondent, argued that, whatever view this Court took of the merits of the argument for which the Crown contended for the first time in this Court, it ought not remit the matter for retrial. As referred to above, it was common ground that the Crown had opposed the application in the Court below on the basis that because the respondent entered by forcible means, the scope of his authority to do so was irrelevant. Mr Odgers submitted that, in these circumstances, his Honour was entitled to accept that the respondent was authorised by the RTA to enter irrespective of how he effected entry.

11. [67]

    This Court was also informed that the respondent had pleaded guilty to lesser charges (common assault, intimidation and destroy property) on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) for which he was to be sentenced.

12. [68]

    The Crown informed the Court that the situation in the present case – an estranged partner forcibly breaking into premises formerly shared with a complainant, in circumstances where the estranged partner might continue to be a party to the lease of the premises – is not uncommon. An offence under s 112 of the Crimes Act, being an indictable offence, is significantly more serious than the situation where the offences alleged to have been committed had been committed without a break and enter. Thus, the Crown filed the notice of appeal in the present case, not merely because of the allegations made against the respondent, but also to give guidance to judges in future cases as to the elements of an offence under s 112 of the Crimes Act in cases such as the present.

13. [69]

    The discretion whether to order a new trial under s 107(6) of the Crimes (Appeal and Review) Act is unconstrained by specific wording (cf. s 104 of the Crimes (Appeal and Review) Act). Although this Court has held that the discretion under s 107(6) ought be read with the qualifications in s 104, this interpretation appears to be one which did not reflect the submissions made by the parties (in so far as one can judge from the reasons in R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 at [150]-[168] (Bellew J, Hoeben CJ at CL and Davies J agreeing). Further, s 104 is contained within Division 2 (of Part 8), which concerns applications for retrials for various reasons, including contamination of evidence or fresh evidence, whereas s 107 is contained within Division 3, which is confined to appeals on questions of law (and applies to verdicts of acquittal by direction or following trial by a judge alone). It is not necessary to decide this question on the present application since it does not appear that there is a material difference, for present purposes. Although “the interests of justice” are not specifically referred to in s 107, they would plainly form part of the discretion to order a retrial, which must be exercised judicially.

14. [70]

    The matters against an order for a retrial include that the solicitor advocate did not put the argument which I have accepted as the proper basis for the directed acquittal to be quashed; that the respondent has pleaded guilty to charges listed on a certificate under s 166 of the Criminal Procedure Act; and delay. The factors in favour of an order for a retrial include that the respondent has not been tried in accordance with the law; there is a public interest in the due prosecution and conviction of offenders; the alleged offence was a serious one; if a retrial is not ordered, the offences charged will not reflect the overall criminality of the offending; it is desirable that the respondent’s guilt or innocence be determined, as would have been the case but for the erroneous direction for a verdict of acquittal; and there has not been significant delay since the alleged offending.

15. [71]

    I am not persuaded that there would be any injustice to the respondent were he required to stand trial again. The public interest in the administration of justice favours an order for a retrial. It will then be a matter for the prosecuting authorities to decide, as a matter of prosecutorial discretion, whether to prosecute the respondent and bring him to trial for the offence which was the subject of this appeal.

Proposed orders

1. [72]

   For the reasons given above, I propose the following orders:

   1. (1)

      Pursuant to s 107(5) of the Crimes (Appeal and Review) Act 2001 (NSW), quash the acquittal of the charge of break and enter and commit serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) contrary to s 112(2) of the Crimes Act 1900 (NSW) which was ordered by direction of Williams SC DCJ on 8 September 2020.

   2. (2)

      Order, pursuant to s 107(6) of the Crimes (Appeal and Review) Act 2001 (NSW), that there be a retrial of the respondent.