Man did not break law kicking down door before assault

A man who kicked down the triple-locked door of an apartment he had not lived in for several weeks did not break the law he was charged under, Australia's highest court has ruled.

Laws were broken afterwards when he grabbed a woman who had locked herself in the apartment by the shoulders, shook and yelled at her, and threw her phone on the floor as she tried to call for help.

The four High Court judges who allowed the man's appeal, quashing a lower court's order of a retrial, conceded the charge he was acquitted of is from a time "quite different from contemporary society".

The man pleaded guilty to common assault, intimidation and destruction of property in the NSW District Court but pleaded not guilty to a charge of break and enter and committing a serious indictable offence in circumstances of aggravation, which can carry up to 20 years jail.

He was still on the lease of the apartment at Queanbeyan, on the NSW Southern Tablelands, which he previously shared with the woman when they were in a relationship.

That ended in May 2019, when the man moved out, took most of his possessions and stopped paying rent.

When he showed up in July that year demanding to be let into the locked apartment, the woman refused, before he kicked down the door and assaulted her.

The door was secured by three locks, one of which shattered the doorframe.

A judge acquitted him because he had a right to enter as a tenant and could not be found guilty of breaking and entering into his own premises.

The acquittal sparked an appeal from the Crown, which argued he did not have permission from the woman occupying the apartment despite having a pre-existing right to enter.

The Court of Criminal Appeal concluded he had broken in, ordering a retrial.

"The regular course of justice has miscarried, because the respondent has not been tried in accordance with law, having been acquitted by direction on an incorrect basis," Justice Paul Brereton reasoned in the joint decision.

The Crown had submitted similar cases were not uncommon, and the appeal was not just to correct an error but provide future guidance.

Facing a possible retrial, the man appealed to Australia's highest court.

The High Court ruled in a majority decision on Wednesday that trespassing was a required element of the offence, and he had lawful authority to enter the apartment regardless of whether the woman wanted him to, despite him having moved out.

It was a slim majority decision, four judges to three.

"This was a forcible entry into what was, by (then) someone else's home," Chief Justice Susan Kiefel, Justice Stephen Gageler and Justice Jayne Jagot said, arguing for the appeal to be dismissed.

Justices Michelle Gordon, James Edelman, Simon Steward and Jacqueline Gleeson said it was a difficult case illustrating the complexities of the law, particularly ones made in "historical circumstances quite different from contemporary society, including when domestic and family violence was generally not treated as criminal".

Some jurisdictions have updated their laws.

"No such amendment or replacement of the older concepts has been undertaken by the NSW Parliament."

"The question raised by this appeal is … did the appellant commit a 'break and enter'? The answer is 'no' and the appeal should be allowed," the majority of judges wrote.

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