Can you break and enter into your own home?

26 MAY 2023


Recently, the High Court handed down a significant decision that highlighted the complexities of a historical offence of “break and entry” with the circumstances of contemporary society. The decision looked at the application of section 112 of the Crimes Act 1900. This is where a person who:

  1. (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence…is guilty of an offence and liable to imprisonment for 14 years.
  2. There is also an aggravated component of this offence, where the maximum penalty is 20 years imprisonment.

In this case, the appellant and the complainant were in a domestic relationship. Together, they signed on as co-tenants for an apartment which was subject to a Residential Tenancy Agreement under the Residential Tenancies Act 2010 (NSW). The relationship eventually broke down and the appellant stopped paying rent and moved out of the apartment. The appellant then returned to the apartment demanding to be let in however the complainant did not allow the appellant to enter. The appellant then kicked open the door and entered the apartment where he preceded to intimidate and assault the complainant.

The High Court had to decide whether the appellant, who was listed as a co-tenant, committed a “break and enter” in his own home. 

The majority of the High Court came to the conclusion that the appellant could not break into his own home as by law he was still a co-tenant which meant he was authorised to enter the house. They reached this decision for the following reasons:

  1. For the purposes of “breaks and enters” under section 112(1)(a), the offence requires a trespass, which means entering a premises without lawful authority. The High Court used an example where a tenant who breaks a window trying to gain entry, having lost their keys, does not break the premises within the meaning of section 112.
  2. The Residential Tenancy Agreement conferred a right of exclusive possession upon the appellant. The appellant’s exclusive possession under the agreement allowed the appellant to enter the apartment for any purpose even though he ceased to occupy the premises prior to the termination of the agreement.
  3. The appellant had lawful authority to enter the apartment because he was still a co-tenant with rights under the Residential Tenancy Agreement. Therefore, he did not need the complainant’s permission to enter the apartment nor was the authority removed when he entered the apartment by force.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.


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