He kicked in a door to assault his ex. A loophole got him off a serious crime

He kicked open a door secured with three locks to assault his ex-partner in the apartment they once shared.

The wooden doorframe shattered. He grabbed, shook and yelled at his terrified former partner, then threw her mobile phone to the ground when she tried to call for help. It was 6am.

But a High Court decision in 2023 said this was not a “break and enter” because he remained on the apartment lease, even though he had already moved out, stopped paying rent and collected his possessions.

The NSW government will introduce a bill in parliament on Wednesday to close the loophole that resulted in this perpetrator being acquitted of break and enter.

Attorney-General Michael Daley said the proposed changes were “narrowly crafted” to avoid disadvantaging victim-survivors of domestic abuse.

“It means perpetrators who no longer live with their current or former partner won’t be protected when it comes to breaking and entering even if they are still on the lease,” he said.

Minister for the Prevention of Domestic Violence Jodie Harrison said the government was “making sure perpetrators are held to account, and not escaping liability due to a legal loophole”.

The proposed changes

Under existing NSW law, all break and enter offences require another serious offence either to be intended or committed in the property, rather than criminalising breaking and entering alone.

In this case, the man was charged with aggravated break and enter and committing the offence of intimidation.

Under the proposed changes, an alleged perpetrator must no longer be an occupant of the home and must commit, or intend to commit, a personal violence offence against their current or former partner in the property.

This would cover physical assault, stalking and intimidation, and destruction of property.

In a bid to ensure victim-survivors are not caught by the provisions if, for example, they returned to their former home to collect their belongings, less serious offences such as theft or common assault, involving limited or no physical contact, are excluded.

An alleged perpetrator would be deemed not to be an occupant if there was an apprehended violence order, court order, or condition of bail or parole that prohibited them residing at the home or required them to live elsewhere.

The High Court case followed a NSW District Court trial where a “directed verdict” of not guilty was entered on the basis the man, as co-tenant, had a right to enter and could not be guilty of breaking in.

The man subsequently pleaded guilty to lesser charges of common assault, intimidation and property destruction, carrying maximum prison sentences of between two and five years compared with 20 years for aggravated break and enter.

The Crown appealed against the District Court decision. The NSW Court of Criminal Appeal quashed the acquittal and ordered a retrial, but the High Court by majority reinstated the acquittal.

The Crown had told the Court of Criminal Appeal it was not uncommon for an estranged partner to break into their former home in these circumstances, and two judges expressed concern the lesser offences did not reflect the offender’s “overall criminality”.

Then-justice Paul Brereton said those offences did not take into account that the crimes took place in the complainant’s home, “in which she was entitled to feel secure”. This was the “very rationale” of the break and enter offence, he said.

The High Court ruling was controversial even among its judges. The court was split 4:3.

‘It involved a break and entry’

The then chief justice, Susan Kiefel, and justices Stephen Gageler – who is now chief justice – and Jayne Jagot were in dissent.

This was “not a borderline case”, the trio said. There was “a forcible entry … against the sole occupant’s express wish”.

“It involved a break and entry,” they said. “Nothing seems more apt to … engender potential violence against people in their own homes than concluding that, in kicking the door down to enter, and then assaulting his former partner … the [accused] committed no crime”.

The perpetrator’s rights under the NSW Residential Tenancies Act offered “no defence … or excuse”, they said.

But the majority of the court – Justices Michelle Gordon, James Edelman, Simon Steward and Jacqueline Gleeson – said the meaning of “break and entry” was “established in historical circumstances quite different from contemporary society, including when domestic and family violence was generally not treated as criminal”.

The NSW government had not amended or replaced these “older concepts”, the majority said.

In this case, the accused had “lawful authority” to enter, including by force, they said.

Karen Bevan, chief executive of Full Stop Australia, a non-profit providing support for survivors of sexual, domestic and family violence, said the proposed changes addressed a gap where abusers could “act with impunity” by leveraging existing laws.

Victim-survivors were at an “increased risk of harm and even fatal assault” in post-separation periods, she said.

But Bevan said it was important the changes were made in a measured way to avoid “any unintended consequences”.

While she believed the proposal was effective in addressing the issues that arose from the High Court decision, Bevan said it would be critical to “keep an eye on it to make sure it’s operating as intended”.

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