Trespass in Western Australia

In Western Australia, the Criminal Code Act Compilation Act 1913 contains offences involving trespass. The act also outlines the circumstances in which it is legal to use force to defend property against a trespasser. This page deals with trespass in Western Australia.

Trespass laws in WA are designed to protect property rights while balancing the rights of individuals in various circumstances. Understanding these laws is crucial for both property owners and those who may inadvertently find themselves on private property without permission. The legislation provides clear guidelines on what constitutes trespass, available defences, and the appropriate use of force in protecting property.

The offence of trespass

Under section 70A of the Criminal Code Act Compilation Act 1913, it is an offence to:

• Enter or be in a place without the consent or the owner or occupier;
• Remaining in a place after being requested to leave by a person in authority;

This offence is punishable by imprisonment for up to 12 months or a fine of up to $12,000.

Elements of trespass

For a trespass charge to be successful, the prosecution must prove several key elements. Firstly, the accused must have entered or remained on the property without lawful authority or permission from the owner or occupier. The property in question can include residential premises, commercial buildings, vacant land, or any other privately owned area.

Secondly, the prosecution must demonstrate that the accused knew or ought to have known that their presence was unauthorised. This can be established through clear signage, verbal warnings, or obvious boundaries such as fences or gates.

Types of property covered

Trespass laws in Western Australia apply to various types of property, including residential homes, commercial premises, agricultural land, construction sites, and educational institutions. The definition of "place" under the Criminal Code is broad and encompasses both indoor and outdoor areas where someone may unlawfully enter or remain.

Offence for trespasser not to give their name and address

Under section 70B of the Criminal Code act Compilation Act 1913, it is an offence for a trespasser to refuse to provide their name and address to the owner or occupier of the land when asked to do so. A person who fails to do so may be fined $500.

This provision allows property owners and occupiers to obtain identification information from trespassers, which can be important for pursuing civil remedies or reporting incidents to police. The requirement only applies when a person has been found trespassing, and the property owner or occupier has a legitimate reason to request this information.

Police powers and trespass

Investigation and arrest powers

Western Australia Police have specific powers when dealing with trespass incidents. Under the Criminal Investigation Act 2006, police officers can investigate trespass complaints and may arrest individuals found committing trespass offences. Officers can also issue move-on notices in certain circumstances to prevent ongoing trespass situations.

Reporting trespass incidents

Property owners should report trespass incidents to police, particularly when there are aggravating factors such as property damage, theft, or threatening behaviour. Documentation through photographs, witness statements, and security footage can strengthen a trespass case and assist police in their investigation.

Aggravated trespass offences

Trespass with intent

More serious charges may apply when trespass is committed with additional criminal intent. If a person enters property intending to commit another offence such as burglary, theft, or assault, they may face charges under sections 400 and 401 of the Criminal Code Act, which carry much heavier penalties including potential imprisonment terms of several years.

Armed trespass

When a person commits trespass while armed with a weapon or dangerous instrument, this constitutes a more serious offence under Western Australian law. These circumstances can result in charges of armed trespass, which carry significantly higher penalties and are treated more severely by the courts.

Self-defence and trespass

Under WA law, a person may use reasonable force to defend their property against a trespasser in the following situations.

Where moveable property taken by a trespasser

Under section 251 of the Criminal Code Compilation Act 1913, a person may use reasonable force to resist the taking of moveable property by a trespasser. This protection extends to personal belongings, vehicles, equipment, and other portable items that belong to the property owner or occupier.

To prevent a person entering a place

Under section 254 of the Criminal Code Compilation Act 1913, a person who is in lawful possession of a place may use reasonable force to prevent a person from entering or to remove a person.

A person must not use force that is likely to cause death or grievous bodily harm in defence of property. The force used must be proportionate to the threat posed and reasonable in the circumstances. Property owners should consider calling police rather than physically confronting trespassers when possible.

Limitations on use of force

While property owners have rights to defend their property, these rights are not unlimited. The force used must be reasonable and proportionate to the circumstances. Excessive force that causes serious injury or death cannot be justified solely for property protection. Property owners should prioritise their safety and that of others when dealing with trespassers.

Defences to trespass

A person charged with trespass may have a legal defence available to them. Some of the legal defences to trespass are outlined below.

Sudden and extraordinary emergency

A person is not guilty of an offence if they enter a property without permission because of an emergency situation – for example, when they are being pursued by an attacker, seeking shelter from severe weather, or rendering aid to someone in distress.

Mistake

A person is not guilty of an offence if they entered property under the mistaken belief that it was public property or that it was their own property. This defence requires the mistake to be honest and reasonable in the circumstances.

Lawful excuse

A person is not guilty of trespass if they enter a property for a legitimate reason, such as delivering mail, providing emergency services, conducting authorised inspections, or asking for directions. The presence must be for a lawful purpose and conducted reasonably.

Implied consent

In some situations, there may be implied consent for people to enter property, such as when approaching a front door to speak with occupants, or entering commercial premises during business hours. This implied consent can be withdrawn by clear communication or signage.

Penalties for trespass

A person who is found guilty of trespass in Western Australia may be sentenced to a fine, a community based order, a conditional release order or a term of imprisonment.

The severity of penalties depends on various factors including the circumstances of the trespass, any aggravating factors, the defendant's criminal history, and the impact on the property owner. First-time offenders with no aggravating circumstances often receive lesser penalties, while repeat offenders or those who commit trespass with additional criminal intent face more severe consequences.

Will I get a conviction?

A person who is found guilty of a criminal offence has a conviction recorded against them. However, under .