Can someone be charged with breaking and entering if they force their way into a home they once shared, and are still named on the lease? Until recently in New South Wales, the answer was often no. A 2023 High Court decision exposed a gap in the law: a person who kicked down the door of a former partner’s home could avoid a break-and-enter charge entirely, even where they no longer lived there and committed a violent offence inside. The NSW Government is now moving to close that gap. This article covers the current law, the decision that exposed the problem, and what the reform changes.
Break-and-enter offences in NSW sit in Division 4 of Part 4 of the Crimes Act 1900 (NSW). The most commonly charged offence, under section 112, is breaking and entering a dwelling-house or other building and committing a serious indictable offence once inside. The prosecution must establish two things: that the accused broke and entered the premises, and that they committed a serious indictable offence while there.
A “serious indictable offence” is one carrying five years’ imprisonment or more, which covers a wide range of conduct including assault occasioning actual or grievous bodily harm, sexual assault, and larceny. The base offence under section 112 carries a maximum of 14 years’ imprisonment, rising to 20 years in circumstances of aggravation.
The difficulty sits in the word “breaks.” Courts have long held that breaking and entering requires a trespass, meaning entry onto someone else’s premises without lawful authority. If a person has a legal right to be there, forcing the door open does not, on its own, turn the entry into a “break” in the criminal sense. The classic illustration is a tenant who breaks their own window to get back in after losing their keys. They have not committed a break-and-enter offence, because they were entitled to enter in the first place.
In BA v The King [2023] HCA 14, the High Court considered a man who had been in a relationship with the complainant and was a co-tenant of their apartment under a residential tenancy agreement. After the relationship ended, he moved out, took most of his belongings, and stopped paying rent, but stayed named on the lease. He later returned, forced entry by breaking down the locked door against the occupant’s wishes, and assaulted her inside.
By a narrow 4–3 majority, the High Court held that he could not be convicted of breaking and entering. Because he remained a co-tenant with a right of exclusive possession under the lease, he had lawful authority to enter, and that authority did not disappear just because he had stopped living there or because the occupant objected. Without a trespass, the “break” element could not be made out. He did, however, plead guilty to other offences, including common assault, intimidation and destroying property.
The dissenting judges saw the offence as existing to protect people’s peace and safety in their own homes from those no longer entitled to be there. The majority’s view is the binding law, though, and its effect was stark. A person could force their way into a former partner’s home and avoid a break-and-enter charge for no better reason than that their name was still on the lease.
The NSW Government has introduced reforms to the Crimes Act aimed squarely at this gap, in the context of protecting victim-survivors of domestic and intimate partner violence. The central change: a person who is no longer an occupant of a home can be prosecuted for breaking and entering regardless of any legal or equitable interest they hold in the property. A lease or joint ownership can no longer act as a shield.
According to the Government, the reform applies where someone who is no longer an occupant forces entry and commits, or intends to commit, a personal violence offence against a current or former intimate partner. It is a targeted change: residential homes, conduct involving violence, and the breakdown of an intimate relationship, the exact circumstances that arose in BA v The King.
Court orders matter under the reform. A person will not be treated as an “occupant” where an Apprehended Violence Order, bail condition, parole condition or other court order prohibits them from living at the premises or requires them to live elsewhere. If it is already unlawful for someone to reside at the home, they cannot rely on a claimed right to be there to defeat a break-and-enter charge.
This sits alongside the existing rule that breaching an AVO is itself a criminal offence. Someone who forces entry into a protected person’s home in breach of an AVO can now face both an AVO-breach charge and a break-and-enter charge, a real increase in their potential exposure.
The reform is drafted to avoid catching people who return to a former home for legitimate reasons, such as collecting belongings or a pet, rather than to harm anyone. Because liability under the new provision is tied to committing, or intending to commit, a personal violence offence against a partner, someone returning for an innocent purpose is not the target of the change.
Reforms like this always draw critics. Some argue relationship breakdowns are rarely clear-cut, and that narrowly drafted offences can be hard to prove and risk criminalising messy, non-violent separations. Others point out that much of the underlying conduct, assault, intimidation, stalking, breaching an AVO, is already criminal, and question whether a new offence adds real protection or just complexity. Supporters respond that closing the BA loophole sends a clear signal: a lease should never be a defence to forcing entry and committing violence in what was once a shared home.
If you have been charged with break and enter, assault, intimidation, or breaching an AVO arising from entry into a former partner’s home, this area of law is serious and still moving. Whether an entry counted as a “break,” whether you were an “occupant,” and whether any court order was in force can all decide the outcome. If you are a victim-survivor, understanding how these offences and your rights interact can help you take the right protective steps.
These matters often turn on details noted in the first few days, such as who held keys and who was paying rent, so gathering that evidence early can make a real difference. Our experienced criminal lawyers can advise you on how these laws apply to your situation, defend break-and-enter and domestic violence charges, and assist with bail applications where needed. Contact NS Criminal Lawyers for a confidential discussion.
This article provides general information only and is not legal advice. The law in this area is subject to ongoing reform and is current in New South Wales as at the date of publication. For advice about your circumstances, please contact a qualified criminal defence lawyer.
