BA v The King and the law of home

ABSTRACT

In BA v The King the High Court decided, by majority, that the offence of breaking and entering did not lie where a man kicked down a door and assaulted his former partner, because the man was still a co-tenant. The judgments show a profound difference in analytical frameworks, with the majority guided by property rights, and the minority guided by a concept of home. In light of criticism of the underdevelopment of the legal concept of home, this contemporary comment critically unpacks the legal decisions taken by the prosecution and judges through the proceedings culminating in BA v The King. The comment then considers recent progress and shortcomings in tenancy laws relating to the ending of co-tenant relationships and domestic and family violence in New South Wales and other Australian jurisdictions.

KEYWORDS:

• break and enter
• domestic and family violence
• home
• tenancy

Acknowledgements

The author acknowledges constructive comments by Dr Bill Swannie and the journal’s reviewers.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 Per s 112 of the Crimes Act 1900 (NSW): ‘breaks and enters any dwelling-house or other building and commits any serious indictable offence therein’.

2 See also Parsell (2012) on the necessity of ‘house’ as a component of ‘home’ as conceptualised by persons experiencing homelessness.

3 For an analysis of US courts’ development of the criminal law, especially burglary, to address domestic violence and incursions by estranged spouses, see Suk (2006).

4 R v BA (District Court (NSW) 8 September 2020, unreported, at [16], cited at R v BA [2021] NSWCCA 191 at 8.

5 Hale, The History of the Common Pleas (1778), vol 1, ch 48 at 551, cited at BA v The King [2023] HCA 14 at [23].

6 Blackstone, Commentaries on the Laws of England (1769), bk 4, ch 16 at 223, cited at BA v The King [2023] HCA 14 at [20].

7 See for example Barker v The Queen [1983] HCA 18, for discussion of complex questions of the victim permitting the accused’s entry, the scope of the permission, whether entries for other purposes were expressly excluded, and whether the accused’s intended purposes at different points in time. Note that the authorities on trespass discussed are scarcely less arcane than those on breaking and entering, with more about game hunting and poaching on English estates than about homes. For a more recent example of complex questions of entries for mixed purposes and trespass – in circumstances of police checks on DFV – see Roy v O’Neill [2020] HCA 45.

8 Residential Tenancies Act 1997 (ACT) s 35D; Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 312.

9 Family Violence Act 2004 (Tas) s 17; Domestic and Family Violence Act 2007 (NT) s 23.

10 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 308A-I; Residential Tenancies Act 1987 (WA) s 71AA-AF; Residential Tenancies Act 1999 (NT) s 92A; Residential Tenancies Act 1995 (SA) s 89A; Residential Tenancies Act 1997 (Vic) s 91V; Residential Tenancies Act 1997 (ACT) s 85A-B; Family Violence Act 2004 (Tas) s 17.