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.

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.

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.

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.

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.  

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.

Mistake

A person is not guilty of an offence if they entered public property under the mistaken belief that it was public property or that it was their own property.

Lawful excuse

A person is not guilty of trespass if they enter a property for a legitimate reason, such as delivering mail or asking for directions.

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.

Will I get a conviction?

A person who is found guilty of a criminal offence has a conviction recorded against them. However, under section 45 of the Sentencing Act 1995, courts have a discretion to make a spent conviction order, which means that the conviction does not have to be disclosed and effectively relieves the offender of any adverse effects from having a conviction recorded.

A court may make a spent conviction order if:

  • The offender is unlikely to commit such an offence again;
  • The offence is trivial;
  • The offender is of prior good character.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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