High Court rules it can’t be break and enter if your name is on the lease

A woman was terrified when her former boyfriend kicked down the front door, breaking three locks, forced his way into the apartment, shook her and threw her phone to the floor when she tried to call police.

The man was charged with break and enter, commit a serious indictable offence (intimidation) in circumstances of aggravation (use of corporal violence) under section 112(2) of the NSW Crimes Act.

Criminal lawyer John Gooley of Stacks Law Firm said it was a serious charge that can lead to jail for up to 20 years.

The judge in the NSW District Court acquitted him.

“The legal reason – his name was still on the lease for the apartment, along with the woman’s, and under the law he had a pre-existing right to enter the dwelling,” Mr Gooley said.

“The Crown appealed. The Court of Criminal Appeal found that the determinative issue was the lack of consent to entry by the occupant, and that he had no right to kick down the door.

“The man appealed to the High Court, where three judges found against him, but four judges ruled in favour of his right to entry while his name was on the lease.

“The majority judges in BA v The King cited legal precedents going all the way back to Britain, to the year 1547, that a person can’t commit break and entry if it’s their own premises.

“The High Court majority found that under the NSW Crimes Act, a person who breaks and enters a dwelling must be a trespasser. The man’s name was on the lease, so under the law he did not require the occupant’s permission to enter. The majority judges ruled the man’s right to entry was not removed when he entered the apartment by force.

Mr Gooley said it is worth reading the majority judgement in BA v The King, which is available via the High Court’s website. It contains myriad legal references to cases dating back centuries that confirm – virtually – that a man’s home is his castle and he can storm it if he wants to.

“This judgement is likely to cause concern for those who refuse entry to a person they fear, if that person’s name is on the lease or they own the dwelling,” Mr Gooley said.

“NSW’s residential tenancy law provides for automatic termination of a lease on the making of a final apprehended violence order. However, this can take time and it doesn’t help when someone is battering down the door.”