BA v The King [2023] HCA 14

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

BA APPELLANT

AND

THE KING RESPONDENT

BA v The King

[2023] HCA 14

Date of Hearing: 7 February 2023

Date of Judgment: 10 May 2023

S101/2022

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 20 August 2021 and, in their place, order that the appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) be dismissed.

On appeal from the Supreme Court of New South Wales

Representation

S J Odgers SC with K J Edwards and E S Jones for the appellant (instructed by Legal Aid NSW)

T A Game SC with L A Coleman and M L Millward for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

BA v The King

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.