Have you been charged with Trespass?
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What Does It Mean to Be Charged with Trespass?
Trespass is an offence that involves unlawfully entering or remaining on someone else’s property without the owner’s consent or without a lawful excuse. Under Section 9 of the Summary Offences Act 1966, trespassing is considered a serious violation as it directly infringes on the property rights of others. Whether it’s entering someone’s private home, a business, or a public space, the law makes it clear that a person’s right to control access to their property must be respected.
Trespassing doesn’t only apply to entering a place without permission. It also includes situations where an individual stays on the property after being asked to leave or refuses to leave when directed by an authorised person. Even minor infringements, such as remaining in a public space after being asked to vacate, can lead to significant legal consequences.
This law serves to protect property owners and occupants from unwanted interference and ensures that individuals do not impose on the peace or safety of others.
What Must the Prosecution Prove?
For a successful prosecution under Section 9 of the Summary Offences Act 1966, the prosecution must prove that:
- Unlawful Entry or Presence: The accused must have entered or remained on the property without the express or implied permission of the owner or occupier. This includes scenarios such as:
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- Entering a private property like someone’s home, a business, or private land without permission.
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- Remaining in a public place (such as a park, a street, or government property) after being asked to leave.
- Failure to Leave After Being Warned: If the owner or an authorised person (such as a security guard, police officer, or manager) asked the accused to leave the property, and they failed to do so, the charge of trespass could be substantiated.
- No Lawful Excuse: The person had no lawful justification for entering or remaining on the property. Lawful excuses might include being invited by the owner, being on the property for an emergency, or having a specific legal right to be there (e.g., public service workers, certain government officials, etc.).
What Constitutes Trespass?
Trespass is not limited to simply entering or staying on property without permission; it encompasses a range of behaviours that disrupt or violate property rights:
- Unauthorised Entry:
Trespassing includes entering any private or public property without the permission of the owner or occupier. This can involve:
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- Entering private property, such as someone’s home, business, or land, without permission.
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- Entering public areas like parks, government buildings, or streets after being explicitly told not to enter.
If there are clear signs indicating that entry is prohibited or restricted (e.g., “No Entry” or “Private Property” signs), ignoring these signs can also result in a trespass charge.
- Failure to Leave When Asked:
Trespass also occurs if you refuse to leave when requested by an authorised person. This includes:
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- Private places: Homes, businesses, or other private properties where you are asked to leave.
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- Public places: Even in public areas, an individual may be asked to vacate the premises, and failure to comply can result in a trespass charge.
- Entering in a Manner Likely to Breach the Peace:
In some cases, trespassing includes entering in a way that creates a risk of disturbance or conflict. For example, engaging in threatening or aggressive behaviour that could lead to violence or disrupt public order.
- Wilful Damage or Destruction of Property:
Trespassing may involve not just entering without permission but also causing damage or harm to the property. This includes:
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- Destroying or vandalising private property.
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- Polluting or damaging public facilities like parks, waterways, or other community spaces.
- Neglecting or Refusing to Leave After Warning:
Continuing to stay on the property after being asked to leave, even if there is no immediate threat or damage, can still constitute trespassing. The law expects individuals to respect the owner’s or occupier’s wishes once they have asked you to leave, and refusal to do so is punishable under the law unless there’s a legitimate excuse for remaining.
Penalty for Trespass
The legal consequences for trespassing can be severe. Under Section 9 of the Summary Offences Act 1966, a person found guilty of trespassing could face:
- A fine of up to 25 penalty units (a penalty unit is a specific monetary amount, which can vary depending on jurisdiction).
- Imprisonment for up to six months if convicted in more serious cases.
The severity of the penalty will often depend on the specific circumstances surrounding the trespass, such as whether there was a risk to public safety or if damage to property occurred.
Where Will My Case Be Heard?
Trespass charges are summary offences, meaning they are typically dealt with in the Magistrates’ Court. These courts handle less serious criminal cases and are the primary venue for resolving cases of trespassing. In some instances, depending on the complexity or severity of the case, it may be referred to a higher court.
Factors and defences to consider:
Several factors can influence the outcome of a trespass charge. Depending on your circumstances, the following defences may apply:
- Belief of Right to Be on Property:
If you genuinely believed you had the right to be on the property—perhaps you were invited by the owner, or you misunderstood the boundaries or rules—this could be a defence to trespass. Proving that the owner consented to your presence, either directly or through implied permission, could negate the charge.
- Public Safety or Assisting Someone in Distress:
In some cases, a person may enter private property to help someone in distress or to address an emergency. For example, entering someone’s property to assist in a medical emergency or to help a person in danger could be considered a lawful excuse.
- Property Status:
The legal status of the property in question may be relevant. If the property wasn’t considered “private” under the law or if it was public land, this could impact the charge.
- Mental Impairment:
If you have a mental impairment or health issue that affected your ability to understand the consequences of your actions, this could be a defence. A mental health condition might affect your judgment and could be taken into account when determining your guilt or innocence.
- Necessity:
If there was a necessity to enter the property for safety reasons—either for you or someone else—this might be a valid excuse for your actions. For example, you might need to trespass on private property to seek shelter from a dangerous situation.
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What Happens Next?
If you’ve been charged with trespass, it’s essential to seek legal advice as soon as possible. An experienced criminal lawyer will help you understand your legal rights, assess the specifics of your case, and devise a strategy for your defence.
A criminal lawyer can identify any potential defences and work to reduce the severity of your charges or penalties. Early intervention can significantly impact the outcome, so don’t delay in contacting a professional.
For confidential, expert advice, call 1800 130 120 today.
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