Breaking

Posted on Aug 3, 2020 | 0 comments


Justice Leeming from the NSW Court of Appeal is a well known and highly regarded equity lawyer and one of the current authors of Meagher, Gummow and Lehane’s equity textbook. His honour also has a PhD in pure maths. When he brings his intellect to bear on matters in the Court of Criminal Appeal there are sometimes some very interesting judgments, of which Ghamrawi v R [2017] NSWCCA 195 is one. Leeming JA traced the development of the common law of “breaking” (as in ‘break and enter’) from the 17th century through to today. I didn’t know (at least until recently) that:

  • An actual breaking requires, broadly, that [the accused] interfere with the building’s physical security, in a recognised way;
  • Or as Blackstone put it: “There must be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption. … if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein, it is no burglary“;
  • It follows that: “To enter or depart through an open door or window is not a breaking. To open a closed though unlocked door or window is a breaking. Where a door, window, or other point of entry is partly open it is not a breaking to widen the opening for purposes of entry. However, it is a breaking if to do so involves tampering with some fastening device.”; and
  • There is also a species of “constructive breaking” where permission to enter is granted but as a result of some “artifice, trick or threat”. An example is given of the 1952 UK case in which Mr Boyle pretended to be from the BBC and entered the house to “inspect” the radio (the good old days of radio licences).

There are other complicating issues about express or implied consent and the overlap with the law of trespass. If you do like a bit of legal history this case should be near the top of your self isolation reading list.

Creative commons acknowledgement for the photograph.

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