20 October 2021
One evening, locked-out of your house, you enter by breaking open the front door. Is this breaking and entering? Trespassing? Committing a crime? Even a civil wrong? I’d say no to each, given it’s your house and your door. Now imagine that you and Taylor both own the house. Taylor’s away on holiday, but again you’re locked-out, and again break open the door. Anything changed? You and Taylor jointly own the door, and Taylor may not be happy with its destruction. But Taylor was away and you were locked out.
Next scenario. One night you and Taylor argue and start yelling. It is Christmas time. There are in-laws. Taylor demands you leave, which you do, but without your keys. You return, knock on the door, and Taylor tells you to go away, explaining your conduct is threatening. Anger swells, you break open the door and rush in. This is not a civil trespass, but seems like some sort of wrong. What if, upon rushing in, you assaulted Taylor? The assault is a crime. Could it be more – not a civil trespass, but breaking and entering? Enter R v BA  NSWCCA 191.
Co-tenants BA and, say, Taylor, rented a house. Their relationship fractures, and BA moves out, but remains a named co-tenant. Weeks later BA returns unannounced, hammers on the door and demands entry, which Taylor refuses. BA kicks open the door then assaults Taylor. BA’s charged, not only with assault, but also under section 112 of the Crimes Act for breaking and entering:
“A person who breaks and enters any dwelling-house … and commits any serious indictable offence therein [i.e. assaulting Taylor] … is guilty of an offence.” 
BA protests that whatever else he did – assault Taylor and damage property – he can’t also have broken into his own house. His lease allowed his entry. The trial judge agreed, directing BA’s acquittal by finding the prosecution, to establish breaking under section 112, needed to show the accused lacked a pre-existing entry right. Because BA was co-tenant, he had a pre-existing entry right. Even if Taylor didn’t want him in the house, BA was a co-tenant which effectively made breaking legally impossible.
Section 112 sits within a Crimes Act division titled 'Sacrilege and Housebreaking'. Despite their intrigue, the sacrilege provisions are repealed. Sacrilege involved breaking into “any place of Divine worship”. Nowadays places of divine worship are secularly grouped within the definition of plain old ‘buildings’ which you also can’t break into.
The Division includes five break and enter offences, which are only triggered if the offender’s conduct involves a serious indictable offence when inside a house or building. Just breaking open a door is not a breaking offence in itself – one reason why breaking open a door when a key is lost will not, without more, offend section 112. Instead, the breaking component aggravates the offending conduct’s seriousness or total criminality. An assault preceded by breaking and entering involves more culpability than only assaulting (see case Ghamrawi v R  NSWCCA 195 at  per Lemming JA).
The issue in BA concerned breaking into your own house – a leased house. The statute’s language could accommodate this concept. Section 112 involves breaking and entering “any dwelling house”, which naturally includes an offender’s own place. This construction found support from the Division’s other sections, some of which limited offences only to “the dwelling-house of another”. The expansive language in section 112, contrasted with the limited language in other sections, meant section 112 applied to an offender’s own house, either as an owner, tenant, or licensee – including children, dependents, guests or boarders.
Because section 112 applies to a person breaking into their own home, policy considerations arise. Ideally, an indictment will capture the most serious offence the evidence discloses – the total criminality (for example, see CDPP Prosecution Policy at clause 2.19-2.22). If section 112 can apply to a person regarding their own home, and counter-intuitions aside, it ought to be utilised. The legislature has made the law, and the executive should use it.
Despite all this, it still seems counterintuitive that a person can break into their own house. In BA, the appellate court took trouble explaining how breaking and entering your own house is possible, and why BA’s acquittal ought not to have been directed. Two areas dominated discussion: Whether the best explanation turned on BA’s entry breaching his lease; or instead if focus should be on the occupying co-tenant regardless of BA’s leasehold rights.
Is a tenant prohibited from entering leased property by breaching their lease, for example damaging the landlord’s door? NSW residential tenancy legislation (section 51 of the Residential Tenancies Act 2010 (NSW)), as with most jurisdictions, mandates lease terms: A “tenant must not … intentionally … cause … any damage to the residential premises”, which BA did.
Justice Adamson considered the tenancy legislation as capable of transforming the offending conduct from an assault into an aggravated offence under section 112 (citing Ghamrawi at  per Lemming JA). By his forceful entry, BA not only contravened the lease but also tenancy legislation. Breaking in forcibly – actually damaging the door – stood in contrast with non-forcible breaking, such as opening an unlocked door. The tenancy legislation, despite not including any penalty, imposed a prohibition on certain conduct. This needed to be construed as a prohibition existing outside “the four corners of a residential tenancy agreement”. Not only did BA’s lease prevent him damaging the door, but there was also a positive, and at large, legislative prohibition. This meant BA’s conduct could offend section 112 despite him being a co-tenant and, for example, not also trespassing. BA was prohibited from entering the property in his selected mode, and this aggravated the assault triggering section 112.
An analysis using tenancy legislation will not always be a complete or completely satisfactory answer – consider:
Justices Brereton and Fullerton took a different approach, considering the tenancy legislation best left to regulate contractual relations between landlord and tenant. Justice Brereton commended on it being “extraordinary” outcome if a non-penal contractual breach, even if imposed by statute, became a crime if an assault, or other serious indictable offence, followed entry. Another solution was required.
Justice Brereton did not consider whether an offender’s mode of entry – with or without force – could be a sufficient discriminator when applying section 112. A forcible entry with permission could not rightly contravene section 112. There were also cases where a non-forcible break would not offend section 112 but a forcible break in the same circumstances would. For example, an employee may be permitted to open a closed office door. If the employee did so, and then stole property, section 112 would not be triggered. However, if entry was gained by breaking the officer door’s lock, section 112 would likely be offended.
This demonstrated the relevant discriminator was not the mode of entry, but whether the offender’s mode of entry was permitted or consented to. Importantly for BA, whose permission was needed became key.
For a co-tenant and section 112, the relevant consent will not be given by the third party landlord. Instead, the consent’s author will be the person section 112 serves to protect – the rented house’s co-occupant. If the entrant requires, but does not have, the co-occupant’s consent, and regardless of how they enter – forced or unforced – breaking and entering becomes possible.
But how is an occupant’s consent determined? In many cases it will be plain and coextensive with trespassing, like a stranger breaking into a house. Yet R v BA is the hard case, requiring explanation of why BA’s entry right as a co-tenant was defeated or subservient to his co-tenant’s desire for BA not entering the house. The difficulty is because being co-tenants seems to almost automatically involve each co-tenant giving the other irrevocable consent to enter – they rent a house together. It would seem unusual if BA’s right of entry was subject to his co-tenant’s whim. This is one reason why the tenancy legislation based solution has attraction. It may have difficulties, but it avoids this conundrum.
Justice Brereton gave the explanation. BA’s consent to enter the premises even as a co-tenant required BA and Taylor’s relationship continuing. When that broke, followed by BA moving out despite remaining a co-tenant, Taylor also revoked her consent. BA’s lease rights may have prevented his return being a trespass, but BA also needed to regain Taylor’s consent to enter. Because BA lacked this, offending under section 112 became possible. This resulted in the trial judge’s acquittal, being based on BA’s leasehold right of entry, incorrect.
Justices Brereton and Adamson’s approaches have much in common. Justice Adamson treated co-tenants as having ongoing entry rights where one tenant cannot withdraw another tenant’s access right. However, this did not leave one co-tenant at the other’s mercy. Access was further modified, by entry needing to accord with tenancy legislation – property could not be damaged. If entry defied this legislation, section 112 could be triggered. While Justice Adamson does not discuss this, even if BA could gain non-forcible entry – say he’d kept his keys – a co-tenant had other alternatives to remain safe, such as restraining orders, and now leases can end in cases of co-tenant domestic violence (see Division 3A of the Residential Tenancies Act 2010 (NSW), which commenced in 2019).
Justice Brereton’s solution also involves two types of right. Firstly and tritely, there needed to be a lease to prevent section 112 being triggered by a person breaking and entering because then they had no right to enter land at all. But of more relevance was consent from the co-occupant, and if circumstances existed where one co-tenant withdrew the required consent. This approach, like a breach of tenancy legislation, also turns on the offender breaching an informal or implicit agreement. Instead of tenancy legislation, the breach is as between co-tenants when in a relationship. The relationship may involve an implication that if the relationship ends, and one co-tenant leaves the house, then that co-tenant needs the other co-tenant’s permission to return. BA always had a right of entry over the landlord (the lease), but he lost his second right of entry – the co-tenant’s consent. Taylor could unilaterally withdraw BA’s consent, not on a whim, but based upon the ‘rules’ of their relationship.
Justice Fullerton agreed with Justice Brereton – an occupant’s consent was the paramount consideration, but also saw difficulties. Although his approach was favoured, it was not wholly satisfactory.
When, for example, is consent withdrawn? While BA moved out, what if he’d been asked to leave, did so, only to come back a few minutes later and attacked Taylor? Was consent withdrawn in a legally meaningful way? What were the terms of their relationship? What happens when a house has several co-tenants? Say one co-tenant withdraws consent toward another co-tenant, but a third co-tenant does not? And so on.
Most entries onto land do not involve section 112 offending, because even if they involve breaking – say a landlord opens a door and enters leased land without consent – there will not also be a serious indicatable offence. However, because section 112 can apply to a person’s own house, the circumstances when section 112 is triggered involved layers of rights, with some having priority over others in particular contexts but not others.
A social or policy observation can also be made. Try as a law or legislature might, life’s contours cannot always be filled out neatly by allocating rights and obligations. Neither of the approaches to section 112 was wholly satisfactory, yet that does not mean the judgment is lacking. Instead, it identifies sensible ways of tackling a counterintuitive situation – section 112 created a possible offence of breaking into your own house, and the decision explained how this could be achieved. It is not an answer for each scenario, yet the problem is presented, analysed and difficulties identified, leaving it up to a malleable legal system to change as required.
Author: Bede Haines
 Crimes Act 1900 (NSW); and guideline judgment – R v Ponfield (1999) 48 NSWLR 327.
 BA was also charged with other offences and pleaded guilty: Common assault, intimidation and destroying property (at ).
 Leaving aside guests, dependent children etc.
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