Home Break Article 08 JAN 2024

Can you Break into your Own Home?

The concept of ‘break and enter’ is complex and the legal meaning of which was established historically in circumstances where family and domestic violence was typically not regarded as criminal conduct. Essentially, the offence is committed when a person enters a building or part of a building without the owner’s consent and with the intention of committing a serious indictable offence, such as theft or assault.

What happens though, in circumstances where your relationship breaks down and you’ve been kicked out of your home?

Could Police charge you with break and enter if you broke into the premises to gain entry back into your home?

In September 2023, the High Court of Australia released a judgment which dealt with a similar situation. In BA v The King [2023] HCA 14, the accused and victim shared a lease for a residential property in Queanbeyan which began on 12 September 2018 for a period of 12 months. By May 2019, the relationship broke down and the accused moved out, which included him returning his house keys to the victim. Although the accused had moved out of the property, he remained on the lease at the relevant time.

On 8 July 2019, the accused arrived at the front door of the premises. The victim refused to let the accused enter the home to which he responded by kicking the front door, which was secured by three locks, and forcing it inwards causing the deadlock to shatter the wooden doorframe. Once inside, the accused grabbed the victim and shook her while yelling at her. He also took her mobile phone and threw it to the floor.

At the District Court trial, his Honour Judge Williams SC determined that the Crown had failed to prove the essential precondition to liability for a break and enter offence, that being that the accused unlawfully entered the premises. His Honour determined that because the accused was a tenant at the time, he could not be guilty of breaking into his own home.

The Crown appealed the acquittal to the Court of Criminal Appeal whereat the Court upheld the Crown appeal and determined that his Honour Judge Williams SC made a legal error in reaching his verdict of not guilty. The accused then appealed this decision to the High Court. In a split decision, the majority determined that the Court of Criminal Appeal judgment could not stand as the accused did not require the victim’s consent to enter the residence. The High Court held that the premise of Court of Criminal Appeal’s reasons, that any tenant of residential premises requires the consent of each other actual occupant of the premises to enter, is incorrect. To the contrary, the victim was not free to lock the accused out of the premises after he ceased to be an occupant.

The effect of this case is such that it clarifies the position with respect to what constitutes the essential element of ‘break’, namely it requires a trespass to be established. That is, entry to the premises of another without lawful authority. A person who has a right to occupy the premises, such as under an existing rental agreement, has lawful authority to enter, including by using force that would otherwise constitute a ‘break’.

This will be the case notwithstanding the person no longer physically residing in the premises or the current occupant (even if they are a joint tenant) does not consent to the person’s entry. There will be no offence of break and enter in such circumstances, even if the person’s intention in entering the premises is for a non-residential purpose.

This potentially presents some difficulties for families embroiled in domestic violence situations where a victim may not be able to stop a perpetrator from violently re-entering their home should he or she still be on the lease. However, it is important to note that while the person may not be charged with break and enter, they may still be liable for their conduct should they engage in threatening, stalking, or otherwise violent behaviour towards any occupants of the house. Conduct such as this could viably constitute alternative charges, which carry serious penalties including imprisonment.

In contrast, should a person be unjustly locked out of their own home by the actions of another occupant, they will be protected from prosecution for breaking and entering should they need to regain entry to the premises by means of breaking, such as opening an ajar window and climbing inside, or breaking down a door.

Should you find yourself charged with a break and enter offence, contact our experienced team at Jackson John Defence Lawyers today. We will help you navigate this complicated area of law and ensure you receive the best result.