Trespass – “You shall not Pass!”

Trespass is one of the elements of burglary, but it can also constitute an offence in its own right. It is important to distinguish criminal trespass from civil trespass. Civil trespass is the unlawful intrusion on one’s property. Contrastingly, criminal trespass is known as ‘entering a place without authority or lawful excuse’.[1] For example, if you enter a school at night without authority or enter a building site without consent for your conduct, you could be charged with the offence of ‘entering a place without authority or lawful excuse’.

Elements of the Trespass Offence

In order to prove an ‘entering a place without authority or lawful excuse’ charge, the Police are required to prove that you:

  • Wilfully entered a private place or scheduled public place;[2] and
  • You had knowledge (or were reckless to the fact) that you did not have authority or permission or was given notice that prohibited entry to the premises.[3]

A ‘private place’ can include a building site, retail premises, shopping centre or private residence.

A ‘scheduled public’ place includes a government school, residential treatment facility, premises designated for mental health services or cemetery.[4]

‘Notice’ can be either verbal or written, such as if the owner of the premises informs you that you are trespassing or if a sign is displayed on the boundary of a premises notifying unauthorised persons to ‘keep out’.[5]

Possible Penalties

The maximum penalty for entering a place without authority or lawful excuse is a fine up to $4000 or up to 6 months imprisonment.[6]

Defences Available

If you have been charged with entering a premises without lawful authority, it will be a defence if you had consent of the owner or believed that you had the consent or permission from the owner. Further, in order to prove the offence, you must have wilfully entered the premises, so if you entered the premises by mistake you will have a defence to your charge.

If you had a legitimate excuse or a lawful excuse, this will be a defence to an ‘entering a place without authority or lawful excuse’ charge. For example, if you had to enter the premises to retrieve an item that belonged to you. If you entered a restricted premises in order to protect the property or an adjoining property from fire or damage, this will amount to a necessity or sudden extraordinary emergency defence.

The defence of honest and reasonable mistake is available if you mistakenly entered the premises. You can also argue mistaken identity or that it was not you that committed the alleged offence.

However, if you have been charged with entering a place without authority or lawful excuse, it is imperative that you seek legal advice as soon as practicable so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Summary Offences Act 1966 (Vic) s 9(e).
[2] Barker v R (1983) 153 CLR 338.
[3] R v Taylor (2004) 10 VR 199.
[4] Summary Offences Act 1966 (Vic) Schedule 1.
[5] Summary Offences Act 1966 (Vic) s 9(1D)
[6] Summary Offences Act 1966 (Vic) s 9(g).

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