Criminal Trespass
In Victoria, criminal trespass is the summary offence of ‘entering a place without authority or lawful excuse’ under section 9 of the Summary Offences Act 1966 (Vic). At common law, criminal trespass occurs when a trespasser enters upon someone else’s land without express or implied authority, licence or consent of the owner or occupier and without some other lawful excuse (Halliday v Nevill (1984) 155 CLR 1).
Trespass is also an element of the offence of burglary and is frequently charged as an alternative offence to the more serious and indictable offence.
This article explains the elements, defences, and penalties of the criminal offence of trespass in Victoria and discusses some of the case law on implied authority and lawful excuse for trespass.
For examples of when the police have authority to enter private property without occupier permission, please see ‘Can the police enter my home?‘.
Trespass in criminal law and civil law
Firstly, it is important to distinguish trespass in criminal law from trespass in civil law. In criminal law, the state can prosecute a person for trespass to punish them for breaking the law. On the other hand, a party (the plaintiff) may bring an action for the civil wrong of trespass to remedy an infringement of property rights by seeking compensation. As stated above, this article considers the law of criminal trespass in Victoria.
Summary Offences Act
Under section 9(1) of the Summary Offences Act 1966, it is a trespass offence in Victoria to:
- wilfully trespass in any public place and neglect or refuse to leave after being warned to do so;
- wilfully enter a private or Scheduled public place without express or implied authority from the owner or occupier or a legitimate purpose;
- neglect or refuse to leave a private place or Scheduled public place after being warned to do so and without a lawful excuse;
- enter a private or public place in a way likely to cause a breach of the peace or reasonable apprehension of a breach of the peace without a lawful excuse.
What is a Scheduled place?
A scheduled public place is defined in Schedule 1 of the Summary Offences Act 1966. A Scheduled place includes:
- land used for government schools within;
- land used for children’s services;
- premises that are residential services or residential treatment facilities;
- premises that are designated mental health services
- land held or managed by a cemetery trust of a public cemetery;
- premises or place where an education and care service operates.
Maximum penalty
These trespass offences are punishable by a maximum penalty of 25 penalty units or imprisonment for six months.
Where is trespass heard?
Trespass offences in Victoria are summary offences and are typically heard in the summary jurisdiction in the Magistrates Court.
If the offence is combined with other more serious indictable offences, it may be heard in a higher court, depending on the circumstances.
Defences to trespassing
The defences to trespass are varied and include:
- factual dispute (property not a private or a Scheduled public place)
- identity (someone entered the property, but it was not the accused)
- authority to enter (the accused did enter but they had either express or implied authority to do so)
- honest and reasonable mistake of fact
- mental impairment
- necessity.
Lawful excuse
Section 9(e)-(f) of the Summary Offences Act 1966 outlines that the offence of trespass will not be committed when the defendant has a lawful excuse or a legitimate reason for entering the property. While these terms are not defined in the legislation, examples of a lawful excuse could include entering a restricted area to retrieve personal property or entering the property to protect it from damage, such as in a sudden and extraordinary emergency.
Express or implied authority
As the majority of the High Court stated in Halliday v Nevill, whether an occupier of land has expressly or impliedly granted authority to an alleged trespasser is a question of fact (Gibbs CJ, Mason, Wilson, and Deane JJ).
While the law implies a licence to enter land for certain lawful purposes, that licence may be revoked at any time by requiring the visitor (even a police officer) to leave the premises (Roy v O’Neill at [11]-[13] (Kiefel CJ) and [66]-[67] (Keane and Edelman JJ)).
Section 9(1C) of the Summary Offences Act 1966 outlines circumstances in which an accused will definitely not have express or implied authority under section 9(e) of the Act. Though not exhaustive, this includes where the accused has:
- Previously or contemporaneously been warned not to enter by the owner/occupier or someone authorised on their behalf; or
- Ignored signage indicating that they, or someone engaging in their activity, is prohibited from entry.
Section 9(1D) of the Summary Offences Act 1966 outlines that, for the offences outlined under section 9(e)-(f), a warning may be given either orally or personally delivered by written notice. Further, section 9(e) includes a warning mailed to the defendant’s usual or last known address, though this isn’t extended to the offence of trespass under section 9(f).
Regarding any warning under section 9(d), the above definition does not reference that section. A warning in such circumstances is not defined to a specific form and is likely sufficient if communicated to the defendant.
Lawful communication
The most common implied licence relates to the means of access, usually by path or driveway, to a house (Halliday v Nevill). As stated by the High Court, if access is unobstructed, the entrance gate unlocked, and there is no notice or other indication that entry by visitors is prohibited, “the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house” (Roy v O’Neill at [12] citing Halliday v Nevill [6]).
To investigate the occupant for a crime
Another example is provided in the case of Roy v O’Neill, in which the High Court found that the implied licence to enter the person’s property to speak with the occupants extends to authorise the entrance by police officers to investigate the occupant for a crime by speaking with them. The majority held (at [18]) :
“It is implied by the law so that police might undertake such enquiries and observations of the appellant as were necessary if she was present at the dwelling unit, to ascertain whether the DVO had been breached and an offence committed… Whether this be called a “check” or an investigation does not matter. It is a non-coercive aspect of police business which involves no adverse effect upon any person … It involves no interference with the occupants’ possession. It is difficult to imagine how police could go about their business and more particularly how they could be expected to prevent domestic violence in the public interest unless they were able to make such enquiries and observations of the subject of a DVO and the person it is intended to protect”.
Their Honours, Keane and Edelman JJ, noted that if police could not check on compliance with a domestic violence order, police would lose the ability to check on victims of abuse (at [53]). Turning to the authorities regarding the implied common law licence, they noted that the licence to enter a property for lawful communication need not be desired by, or for the benefit of, the occupier (at [69]).
For example, as Dixon J said in Lipman v Clendinnen, a customer who returns to a shop to complain about the quality of goods purchased or the change received has an implied licence to enter the shop, though it may not be for the shopkeeper’s benefit.
However, an example of the police entering premises with a sole purpose that is outside the implied licence is Tasmania v Crane. In that case, the police were held to have an implied licence to enter a property to make enquiries of the occupier concerning a poppy crop being grown on nearby land, which the landowners had alleged to be grown by somebody without the landowners’ consent. When the police officers began to walk around the building to investigate they exceeded their licence and became trespassers.
Arrest of another person in driveway
The circumstances in which a licence to enter land will be implied in law may extend to other instances beyond lawful communication with the occupier. The facts of Halliday v Nevill provide an example in which the purpose of police entering the driveway of a dwelling was to arrest without warrant a person known to be a disqualified driver who took refuge in the driveway. There was no interference with the occupier’s possession or injury to any person present. The conclusion reached by the majority in the High Court that the police officer was not a trespasser was said to be based on common sense, reinforced by considerations of public policy (at [7]).
When trespass occurs despite an implied licence
If an implied licence to enter is limited to a particular purpose and the sole purpose of entry is entirely outside that particular purpose, then the visitor will be a trespasser (Roy v O’Neill at [71]). For example, in Barker v The Queen, while Mr Barker had an express licence to enter the property to look after it while the owner was away, it was open to the jury to conclude that he entered as a trespasser if his sole purpose was to commit theft so that his entry “was quite unrelated to the invitation or licence which he had” (Roy v O’Neill citing Barker v The Queen at [71]).
In TCN Channel Nine Pty Ltd v Anning, an entrant with an implied licence to enter the property to ask the occupier for permission to film was a trespasser because her sole purpose was not for communication. The purpose was solely to film occupants, irrespective of any communication with the occupier, which was entirely outside the implied licence.
Dual purpose of entry
However, if an entrant has a dual purpose including a purpose within an implied licence, that entrance will usually be authorised even if there is some other purpose that falls outside the scope of the authorised purpose (Barker v The Queen at [72]). For example, in Barker v The Queen, Mason J gave an example of a person who entered a shop with the intention of stealing. That person is not a trespasser when they enter the door if their entrance is accompanied by a purpose that is within the ambit of the shopkeeper’s implied invitation (at [29]).
As their Honours Keane and Edelman JJ held in Roy v O’Neill (at [72]) held:
“This implication in law of a licence in instances of mixed purposes reflects the realities and incidents of social life. The realities and incidents of social life do not require the drawing of imperceptible, jurisprudential distinctions based upon whether a purpose within a licence is or is not accompanied by other subjective motivations or purposes that might lie outside the licence, especially where the other subjective motivations or purposes might be conditional, subservient, or uncertain, or might never be acted upon. If such distinctions were drawn the operation of an implied licence would be practically unworkable …Once the invitee acts upon any such motivation in a manner inconsistent with the licence the invitee will become a trespasser.”
There is a rare exception to the principle concerning mixed purposes where the occupier, whether expressly or impliedly, makes clear that a licence is “exclusively for a particular purpose” (Barker v The Queen). In such a case, a person who enters with any other purpose will be a trespasser. For example, if a sign is hung on a front gate saying “Entry is permitted only for the delivery of parcels”, no implied licence will arise for entry for the purpose of communication with the occupier, even when that purpose is accompanied by the purpose of delivering a parcel (Roy v O’Neill at [73]).
Turning to entrance by police with a dual purpose, Keane and Edelman JJ in Roy v O’Neill, accepted that if the police had entered for the sole purpose of subjecting the occupant to a coercive process, such as administering the breath test, it would have been unlawful entry. However, as the police officers entered for a dual purpose, including to conduct a “check” on compliance with the AVO and to perform the breath test, the purpose was lawful (at [88].
When police become trespassers
As summarised by the majority (Keane and Edelman JJ) in Roy v O’Neill, like other members of the public, police officers will be trespassers if:
- (i) the sole purpose for their entry onto the premises is outside the scope of any implied licence
- (ii) they remain on the land after the licence is revoked, or
- (iii) they act in a manner inconsistent with the licence (at [79]).
The decision in Roy v O’Neill offers clarification that police can lawfully enter land to speak with occupants in the absence of express statutory authority in certain circumstances. However, this implied permission remains subject to limitations and does not extend to authorise entrance if the sole purpose is to subject the occupant to a coercive process or is otherwise outside the scope of the implied licence.
If a police officer remains after a licence to enter the property is revoked, they become a trespasser and are acting unlawfully and not in the execution of their duty. However, when revoking an implied licence, a person needs to be given time to leave the premises (Robson v Hallett [1967] 2 QB 939).
Ejecting a trespasser and self defence
In Victoria, under section 322K of the Crimes Act 1958, a person is entitled to defend themselves or their property with the use of reasonable force necessary in self-defence. However, a person relying upon self-defence when using force to eject a trespasser must have believed that the conduct was a necessary and reasonable response in the circumstances.
In determining whether the accused’s response was reasonable is a matter of fact. What is assessed is the ‘reasonable response’ of the accused, not that of a reasonable person, so the accused’s particular attributes are taken into consideration.
The use of force to eject a person from property that is unreasonable could result in liability for criminal charges (such as assault) or civil action for any injuries the trespasser experienced as a result.
Furthermore, while a person is entitled to use reasonable force to eject a trespasser, a person who enters lawfully must be given reasonable time to leave before force can be used against them (Robson v Hallett [1967] 2 QB 939; Kay v Hibbert [1977] Crim LR 226).
What to do next?
If you have been charged with the offence of trespass, you should make an appointment with an experienced lawyer as soon as possible to understand the options available to you, to ensure your rights are protected and that the best possible defence is provided.
The legislation
SUMMARY OFFENCES ACT 1966 – SECT 9
Wilful destruction, damage etc. of property
(1) Any person who—
(a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain;
(b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge;
(c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or
(d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or
(e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or
(f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or
(g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace—
shall be guilty of an offence.
Penalty: 25 penalty units or imprisonment for six months.
(1A) In any proceedings for an offence against subsection (1) the statement on oath or by affirmation of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary is proved by or on behalf of the accused that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires).
(1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of subsection (1) even though he or she did not intend to take possession of the place.
(1C) Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are—
(a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or
(b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or
(c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that—
(i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or
(ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place—
and the person has no other lawful excuse for entering that place.
(1D) A warning may be given to a person under subsection (1)(f) or subsection (1C)(a) or (b)—
(a) orally; or
(b) by delivering written notice of it personally to the person; or
(c) except in the case of a warning under subsection (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence.
(1E) A person may commit an offence against paragraph (g) of subsection (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph.
(2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto.
(3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game.
