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Amendments to current legislation related to ‘break and enter’ offences have been suggested in New South Wales Parliament, amid concerns stemming from a High Court ruling.

In BA v The King [2023] HCA 14, the High Court held that ‘break and enter’ offences require a trespass, which means entering a premises without lawful authority.

In this case, it meant that despite the defendant kicking open the door to his ex-girlfriend’s house and entering the apartment, the incident could not be deemed a ‘break and enter’ as he had lawful authority to enter the apartment due to being a co-tenant under the Residential Tenancy Agreement.

The applicant, referred to as ‘BA’, had shared an apartment in Queanbeyan as co‑tenants with his girlfriend under a residential lease.

The relationship ended, he moved out of the apartment and subsequently stopped paying rent, even leaving his keys behind.

The female stayed in the apartment, paying the associated rent. Two months after the breakdown of the relationship, BA arrived at the residence, demanding entry to the apartment.

The female said ‘no’, however he kicked down the door, grabbed her shoulders, shaking her whilst yelling before grabbing her mobile phone and throwing it to the floor.

BA pled guilty in the District Court to charges of common assault, intimidation, and destruction of property. However, he pleaded not guilty to the more serious offence of ‘break and enter and commit serious indictable offence’ under section 112(1) of the Crimes Act 1900 (NSW).

As outlined, he was ultimately acquitted of this offence, due to being a tenant whose name remained on the lease. He was held to have a lawful right of entry and could not be found guilty of breaking and entering his own premises.

In response to this judgement, Shadow Attorney General, Alister Henskens SC has introduced the Crimes Amendment (Breaking and Entering) Bill 2023 to the Legislative Assembly of NSW Parliament.

The bill seeks to shift the understanding of ‘break and enter’ by providing a legal right for one partner who continues to occupy the previously shared home to stop their former partner, who has left the home and relationship, from re‑entering at will and using force.

Henskens noted: “it is important that all of us, but especially women, are protected from the sorts of abuses that occurred in BA v The King and that the criminal law responds with its full force, regardless of legal technicality, in order to protect former partners from violence and from threats to the peaceful enjoyment of their homes.”

It does so by replacing the concept of ‘break and enter’ with ‘enter without consent’ – thus removing the precondition of trespass.

The bill provides that consent to enter must be actual and not obtained by force, threat, or deception.

It also specifies that it is immaterial that at the time of the alleged offence the accused had a right of occupation, so long as the accused did not ordinarily reside in the dwelling house.

New South Wales would not be the first state to make these changes, with the bill modelled on legislation currently in force in Western Australia.

“It is a measure to allow women to feel more secure in their own homes following a break-up. It changes the focus from a legal right of entry to the need to obtain consent to enter from the person who actually lives in the house.” stated Henskens.

For example, whilst the legislation currently refers to ‘a person who breaks and enters any dwelling-house or other building’ this bill would mean that it would instead be specified as ‘if a person enters or remains in a dwelling-house, or other building, of another person without the consent of the other person’.

The bill remains before Parliament and has the support of the NSW Liberals and Nationals.

In New South Wales, there are numerous ‘break and enter’ offences under the Crimes Act 1900 (NSW), largely contained within sections 109 – 113.

One of the most reported offence types within this category is ‘break and enter and commit serious indictable offence’ under section 112(1).

Currently, the elements of this offence that the prosecution must prove beyond reasonable doubt are:

  1. You broke into and entered any dwelling-house, or other building, or
  2. You were in dwelling-house, or other building and broke out of it, and
  3. Whilst therein committed a serious indictable offence.

A serious indictable offence refers to any offence which has a maximum penalty of at least five years imprisonment. This can commonly include stealing, destroying or damaging property, and intimidation, among many other offences.

Therefore, an example would include breaking into a house and stealing belongings from within the residence or breaking into a building to damage property therein. It can also include breaking into a house to intimidate its occupants.

The concept of breaking and entering requires the accused to ‘break the seal’ of the building.

Whilst the phrase ‘break and enter’ evokes images of forceful entry into a premises it can be satisfied by actions such as opening a closed door or window, and entering, even where these entries are unlocked. This is due to how these actions involve ‘breaking the seal’.

As outlined, an incident will not be considered a ‘break and enter’ where the accused has lawful authority to enter the premises, including via their lawful rights in the property or the consent of the owner.


By Poppy Morandin.

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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