Trespass Offences and Penalties in Western Australia (WA)

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Overlapping illegitimately into another's property, area of control or jurisdiction is an offence known as Trespassing. It also includes where a person moves or acts appropriately in an area that belongs to an agency, government or the crown under ordinary jurisdiction.

The Criminal Code Act Compilation Act 1913 (WA) lists numerous offences against the State, including Trespassing. Section 70A of the Act states the actions, terms and circumstances that would constitute a trespass offence, including similar activities and attempting such offence.

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

What is Trespassing?

The section 70A of the Act describes an offence of trespass to occur if the accused person,

Without consent or reasonable excuse;

• Enters a property,
• It is found in a property,

And

• Remains in a property even after being asked to leave by the legal owner
• Stays in a part of or relating to the property after being requested to leave by the legitimate owner.

Trespassing is usually treated summarily and results in minor penalties. It is an offence that incurs punishments reaching;

• 12 months imprisonment and/or
• $12,000 in fine amounts

The court allows the accused person to argue their innocence while hearing an offence of trespass. For this reason, there are many plausible defences an accused person can decide within the court.

Terms in Trespassing

For this section, the following terms have particular meanings in court.

1. Owner

A person whose name is on the official registration or documents of the property is the owner in this case. A person is also the owner if they have lawfully received such document transfer from the previous owner.

By being a testator, or legal trustee to the ownership of the property, the person is also an owner. A person is also the owner of a property if they have the legal authority or manager of that property. This includes cases of property owned by;

• The crown,
• The public,
• Organisations and Companies
• A police officer acting legally for the owner (by State laws).

2. Enclosed land

This section refers to an area almost or covered through any artificial means to be "enclosed". It precludes any road, place, or property available and open to the public.

The offence of failing to provide useful information

However, a person in legal charge of an enclosed land may request a person to leave their property. If the owner finds a person on their enclosed ground, they have the legal authority to request the name and address of the trespasser.

It is an offence that incurs up to $500 for refusing to provide such necessary information. Also, it is a similar punishment for any person who gives false or deceitful replies to the person's questions.

What must the prosecutor prove for such an offence?

The court does not just sentence a person for the offence of Trespassing without valid evidence through descriptionss.

• ✔ The Prosecutor or Police accusing the person must prove using approved conditions by the law that the person trespassed. It includes proving that the person was at the place and was there of their own will (not forced).
• ✔ The person had no legal or meaningful excuse to be there
• ✔ The prosecutor must prove that the accused person did not have the consent to be in that property at that time. It includes proving that the landowner or any other person enticed the accused person to be in the area at no point in time.
• ✔ The person refused after being requested to vacate the premise
• ✔ The prosecutor will also prove that the accused person was reckless or refused all requests to remove the belief. Unless the prosecutor proves that the accused person was adamant about leaving, the court may decide against sentencing the accused.

What are the Possible defences for a Trespass offence?

I. A person accused of Trespassing can argue before the court that it was not an entirely intentional/malicious act. For example, they can prove their innocence by showing there was consent. If the owner suggests an invite, it can defend the accused.

II. It was an accident

III. The accused can claim they only stumbled on the property at no fault of theirs. It includes where they are;

• Chased into the property,
• Lost on the property,
• Hid from an emergency
• Reasonably believed the property to be a public area.
• Honest Mistake of such property

IV. An accused person can claim that they honestly had every reason to believe the property belonged to someone else. It also covers the case of lands adjacent to public parks and other municipalities.

V. Other defences include;

• The accused person had a legal excuse to be there
• A case of mistaken identity
• The person was there in the course of an emergency.

Other offences

Many offences are similar to the Trespassing offences . The court can, considering the circumstances and evidence, sentence a person for a different and more "suited" charge.

The offence of forcible entry

Section 69 of the Criminal Code Act Compilation Act 1913 (WA) describes the offence of forcible entry to land where a person;

Enters a land belonging to another, and by so doing;

• Causes apprehension or fear to any of the inhabitants
• Carries out any act likely to cause fear

It is an offence that incurs imprisonment up to 2 years and a summary conviction penalty of $6,000.

Being armed in a manner that causes fear

It is an offence for a person to be armed or assumed to be so in any capacity. It is an offence that incurs punishments up to 7 years imprisonment. It includes being armed in a manner likely to cause fear, apprehension or threat to another.

If the matter is decided summarily before a lower court, it incurs three years imprisonment and $36,000 in fine.

However, it can be a defence to this charge if the person can prove they have lawful circumstances to be armed in such cases.

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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