Trespass Offences and Penalties in South Australia (SA)

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In South Australia (SA), the crime of trespassing falls under the summary offences category. Consequently, this means that the trials held for trespassing do not require a jury and hardly result in a jail term exceeding 12 months.

Based on the South Australian legislation, trespassing does not necessarily mean intruding into a property. It could be a situation where a person attends an event in violation of an order they received from the event's organiser.

In this writeup, we will be considering the various trespassing offences, the penalties and the possible defences to the crime.

If an individual is convicted for a Trespass offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

The Offence of Trespassing in South Australia

The Summary Offences Act 1953 (SA) states the different situations in which a person can become guilty of trespassing. According to Section 17A of the Summary Offences Act 1953 (SA), a person can be guilty of a crime when they trespass into premises belonging to another individual. Premises mean land, building, or any structure. It could also be a vehicle, aircraft, ship, or boat.

Trespassing into premises attracts a maximum of $2,500 fine or six months imprisonment. But, if it is primary production premises, the penalty would be a fine of $5,000 or six months imprisonment. Primary production premises refers to a property used for any agricultural purpose such as plant or animal cultivation, tree farming or tree felling, e.t.c.

Other crimes in this section include using offensive language and refusing to provide name and address after trespassing. Committing any of these offences comes with a fine of $1,250.

Also, Section 17AB of the Summary Offences Act 1953 (SA) clarifies that any individual who trespasses into a private party would receive a $5000 fine or one-year imprisonment.

Furthermore, this section dictates that it is a crime for a person to act offensively or refuse to provide means of identification when trespassing. Each of these offences attracts a fine of $2,500.

However, before the court can find a defendant guilty of the crime of trespassing, the prosecution will need to establish some elements, whether in case of trespassing into premises or private parties.

Trespassing Into Premises

In a case of trespassing into premises, the prosecution will need to prove that:

#1. The Defendant Trespassed into Premises

According to Section 17A (1)(a) of the Summary Offences Act 1953 (SA), the prosecutor must show that the defendant stepped into their premises. To prove this, a plaintiff can request a written witness statement from the police indicating that the defendant carried out the act of trespassing.

#2. A Plaintiff is an Authorised Person

Section 17A(3) of the Act defines an authorised person as the individual in possession or in charge of premises. An authorised person could also mean an occupier. It is impossible for a person who isn't an authorised person to sue another individual for the crime of trespassing.

As such, the court will require the plaintiff to establish that they are the lawful owner of the premises and that the ownership is exclusive. Consequently, the plaintiff may have to provide purchase documents or any other document identifying them as the person in charge of premises.

#3. The Defendant Interfered with the Occupier's Enjoyment of their Premises

Section 17A (1)(b) of the Summary Offences Act 1953 (SA) explains that for a case of trespassing to stand, the plaintiff will need to prove that the defendant's interference on their premises affected the enjoyment of their premises.

#4. The Defendant Remained after an Authorised Person Instructed Them to Leave

Section 17A (1)(c) clarifies that an authorised person must have instructed the trespasser to leave the premises, and the trespasser refused to leave or trespassed again within 24 hours. The instruction given could be orally or in writing. If the instruction was in writing, the prosecution might have to provide a copy to the court.

Furthermore, establishing that the defendant disobeyed the instruction of the authorised person can show that the defendant was on the premises without authorisation.

Trespassing into Private Parties

For a person to be found guilty for the crime of trespassing into a private party, the prosecution will need to show that:

#1. The Plaintiff Suspected That the Defendant Was a Trespasser

Section 17AB(1) of the Summary Offences Act 1953 (SA) explains that for a person to be guilty of trespassing, the plaintiff must have suspected that the individual was present at a party without consent.

Upon suspecting the presence of a trespasser, the plaintiff could request that the trespasser provide evidence showing that they are entitled to be on premises.

#2. The Accused Could Not Provide Satisfactory Evidence to an Authorised Person

Section 17AB(2) states that a person may be guilty of trespassing if they are unable to provide any form of evidence that they are entitled to be at a party.

#3. An Authorised Person Advised the Accused to Leave, and They Refused

Based on Section 17AB(4) of the Summary Offences Act 1953 (SA), the court can only consider the defendant guilty of trespassing if they refused to leave the private party after an authorised person had advised them to leave.

Also, in a proceeding, the court may only find a person guilty if they returned to the private party within 24 hours after an authorised person had instructed them to leave.

What Can a Person Do If an Individual Trespasses into Their Premises?

If an occupier were to use force in removing a trespasser, they might be guilty of an assault offence. The best course of action would be for the person in charge of the premises to call the police.

The police will then take the necessary steps to ensure the evacuation of the trespasser who refuses to leave. Subsequently, the occupier can sue the trespasser.

Upon proving to the court that the defendant is guilty of trespassing, the owner of the premises could make specific requests from the court. These requests include:

• Compensation

Compensation only applies when the action of the trespasser caused any form of damage to the premises or affected the owner in any way.

• Injunction

An injunction is an order that the court gives to restrain an offender from continuing with a crime that invades the legal rights of another individual.

Possible Defences to the Crime of Trespassing

There are some defences that the accused can raise as a response to the accusation levelled against them. The defendant can claim that:

• They committed the crime of trespassing as a response to an immediate danger that is capable of endangering their life and the lives of others.
• They had the consent to be on the premises.
• The crime was a result of a genuine mistake.

Conclusion

Being convicted for trespassing can negatively impact a person's life. Apart from the fine and imprisonment term, being convicted can leave a person with a criminal record. Consequently, this can affect the jobs a person can get or the countries they can visit.

Will a Trespass Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a trespass offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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