Legal Aid NSW Scores Two Significant Legal Victories in the High Court of Australia

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By Paul Gregoire and Ugur Nedim

According to the Law Council of Australia, key rule of law principles include being equal before the law, and that “everyone should have access to competent and independent legal advice”, with this latter point supporting the first, as it ensures those who can’t afford it are provided legal support.

In this state, Legal Aid NSW provides free legal advice to eligible people: those experiencing disadvantage. And an initial consultation will determine whether it can help with a matter, and if so, assist in applying for the aid of one of its lawyers, or otherwise, it points clients in the right direction.

Indeed, Legal Aid NSW plays a significant role in this state’s justice system, having supported 37,000 clients over 2022, while, in general, it funds more than 50 percent of criminal trials in this state, which is a measure that serves the entire constituency, as without equality, there is no rule of law.

But legal aid services nationwide receive a bad rap at times, as people, often without any valid reason to hold such an opinion, consider the representation provided by legally-qualified and legitimate lawyers as somehow lacklustre, simply because there’s no hefty invoice accompanying it.

Last month, however, two appeal decisions delivered in the High Court, which involved Legal Aid NSW in-house indictable appeals specialists as instructing solicitors, were determined in favour of those clients eligible for government-funded legal support, proving the organisation’s mettle.

Dreyfus intervenes

The judgement of the first case was delivered on 10 May this year, and it involved Huy Huynh having been convicted and sentenced to 8 years inside, over conspiring to import a commercial quantity of a border-controlled precursor, contrary to sections 11.5 and 307.11 of the Criminal Code 1995 (Cth).

Huynh unsuccessfully appealed his 2015 NSW District Court conviction to the NSW Court of Criminal Appeal (NSWCCA) in 2017, and a subsequent application for special leave to appeal to the High Court was denied two years later.

So, in March 2020, Huynh applied, under section 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR), for the NSW Supreme Court to inquire into his conviction, as that section permits, if doubts exists, that the Chief Justice may approve an inquiry under section 79(1)(a) of the CAR.

This request was underpinned by the authority of section 68(1) of the Judiciary Act 1903 (Cth) (the JA), which provides that state and territory laws that relate to convictions and appeals apply, and can be applied, to Commonwealth offences, such as those Huynh had been convicted of.

NSW Court of Appeal Justice Peter Garling, however, denied the request, so Huynh appealed this as an error in law to the NSWCA in 2021, with the majority finding that the CAR sections didn’t hold force, even if coupled with the Judiciary Act, so the application shouldn’t have ever been considered.

But the Commonwealth attorney general, with Huynh’s support, and acting with Legal Aid solicitors, appealed this finding of the NSWCA last November, and in May, the majority of the High Court found that sections 78(1) and 79(1)(b) of the CAR do apply to federal offences, with the authority of the JA.

Breaking into own premises

The second case that Legal Aid solicitors recently brought across the line in the highest court in the land was BA versus The King, with this judgement also being handed down on the 10th of last month.

This case involved a Sydney man referred to as BA appearing before the NSW District Court in 2020, and pleading guilty to common assault, under section 61 of the Crimes Act 1900 (NSW) (the Act), as well as intimidation, contrary to section 545B, and destruction of property, under section 195.

But the accused pleaded not guilty to break, enter and commit a serious indictable offence, which is contained in section 112 of the Act. And the trial judge upheld this plea of not guilty, even though the man had kicked in the front door of the apartment to gain access after he’d been denied it.

The reason why BA wasn’t found guilty of breaking into the apartment to commit several crimes was that he continued to be on the residential tenancy agreement, even though he’d moved out of the place that he’d occupied with his then ex-girlfriend two months prior to the July 2019 incident.

On appeal, however, the NSWCCA found in August 2021, that despite BA continuing to be on the lease, and, therefore, holding a right to the possession of the premises, this did not authorise him to forcibly enter the apartment in a manner that damaged it, as that breached the tenancy agreement.

The court also found that while BA did have legal permission to enter, the manner in which he did constituted a “break”, especially when the actual occupant had not provided consent to the forceful entry. And the NSWCCA justices ordered the acquittal be quashed and a retrial be run. 

Yet, the majority of the High Court ruled last month that the section 112 offence of break and enter, requires the element of trespass, or rather an entry into a premises of another without lawful authority, which wasn’t involved in this incident as BA had legal authority to enter the premises.

Four High Court justices further outlined that entering the apartment by use of force would only constitute a break if that lawful authority didn’t exist, and nor was this authority removed by the lack of consent his ex had provided or by his having ceased to occupy the place two months earlier.

Significant judgements

In a statement, following the release of the two case findings, Legal Aid NSW outlined that the R versus BA decision “has broad implications for criminal lawyers”, as it confirmed that break, enter and commit a serious crime is only possible by a trespasser, and not someone with lawful authority.

So, the possession of the legal authority to enter an apartment, including via the use force, cannot constitute breaking and entering, as it’s not a form of trespass.

“Appeals such as these play an important role in clarifying the law and providing guidance for future cases,” Legal Aid NSW underscored in its press release.

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