Trespass
A trespass charge will arise when a person either unlawfully enters or remains in either a dwelling or place. This is separate from the more serious offence of Burglary (see our article here), the significant departure from Burglary is the lack of intent to commit an indicatable offence or the lack of an indicatable offence being committed. The charge arises not from the Criminal Code, but from the Summary Offences Act 2005, namely section 11(1) and (2):
(1) A person must not unlawfully enter, or remain in, a dwelling or the yard for a dwelling.
(2) A person must not unlawfully enter, or remain in, a place used as a yard for, or a place used for, a business purpose.
This offence is separate from the tort (civil wrong) of trespass, which is a civil action brought against a person by another person not by the police. This article will only deal with the summary offence that is brought on by the police.
What does the prosecution need to prove?
To succeed in a charge of trespass, the police must prove that a person has unlawfully entered a dwelling or the yard of the dwelling (dwelling meaning a place that a person resides or that is usually used as a residence) – or alternatively a place including a business.
If police officer believes that a person has committed an offence of trespass, they must, if reasonably practicable, give the person a reasonable opportunity to explain:
(a) if the offence involves the person’s presence at a place—why the person was at the place; or
(b) if the offence involves entering a place—why the person entered the place.
Defences
Some of the possible defences to the charge of trespass may be:
- lawful authority to enter or be in the place, dwelling or yard of the place or dwelling;
- mistake of fact
How might this charge arise?
A charge of trespass may arise in a variety of situations, ranging from falling asleep in a person’s yard whilst intoxicated, to curious teenagers exploring abandoned places. A charge of trespass may even arise in a situation where a domestic relationship breaks down and a partner tells their spouse (or ex-spouse) to leave their home immediately and they don’t – this is considered a trespass under the Act.
These examples are just a few of the possible ways in which the charge can arise and is not an exhaustive list of examples.
Penalties
The maximum penalty for this offence is either 20 penalty units (at the time of writing being $2,875) or 1 year’s imprisonment. The ultimate penalty you will receive for the offence will depend on the circumstances of the offending, your criminal history and your general character otherwise. Engaging a criminal lawyer to act on your behalf will assist you in mitigating and reducing the penalty.
What court will hear my matter?
As this offence is an offence under the Summary Offences Act, the matter will be heard in the Magistrates Court.
Why engage a Lawyer?
Its simple, experienced criminal lawyers know the law, the magistrates, the prosecutors and the court process. A person without that knowledge will quickly become overwhelmed.
Every week we get calls from people who represented themselves, had a harsh penalty imposed or conviction recorded and are desperate to try and change the outcome which at that stage is almost impossible.
Conclusion
This article, is by no means an in depth analysis of the offence, but serves to give a starting point for someone charged with the offence, or looking to get more information about the offence.
What courts do you cover?
We cover all courts in South East Queensland from Coolangatta to Gympie and out to Toowoomba.
We are also a criminal law firm, we don’t do any other type of law so we are in the courts every day helping people with charges like this.
Just some of the courts we appear in for trespass are;
Holland Park Magistrates Court
Maroochydore Magistrates Court
What do you charge?
We charge a flat upfront fee for our services that means no hidden charges or unexpected bills.
Our prices include;
- full preparation for court including checking for defences and devising strategy to minimise penalty
- negotiations with the police prosecution unit including obtaining criminal history and charge documents
- drafting submissions for the court
- all telephone calls, emails and meetings with you
- detailed information to you on the likely penalty and information on what will happen at court and afterwards
- appearing in the court with you to conduct your guilty plea
To see what we will for a guilty plea on a trespass charge click here
How do I get more information or engage Clarity Law to act for me?
If you want to engage us or just need further no obligation information or advice then you can either;
1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email the firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.
5. Send us a message on Facebook Messenger
We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about the charge. You wont be chased or hounded to engage us. Remember its critical you get advice before going to court, this offence can have an impact on you, your family and your employment or business.
