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.
Landlord and Tenant – Whether right of occupation granted under residential tenancy agreement conditional upon tenant's purpose of entry being use of premises as residence – Whether no lawful authority to enter premises where entry made without consent of occupant – Whether right of exclusive possession under lease lost when co-tenant vacates premises but remains a lessee – Whether provisions of RT Act condition tenant's lawful authority to enter premises.
Words and phrases – "break and enter", "breaks", "burglary", "co-tenants", "consent", "damage to premises", "dwelling-house", "entry", "exclusive possession", "habitation", "lawful authority", "liberty to enter", "occupation", "purpose of entry", "residential tenancy agreement", "right of entry", "right of possession", "trespass", "trespasser".
Crimes Act 1900 (NSW), ss 4, 105A, 112, Pt 4 Div 4.
Residential Tenancies Act 2010 (NSW), ss 13(1), 51(1)(d), 79.