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Many people know that trespassing involves entering another person's property without permission. Beyond that, they do not know much more. In Victoria, trespassing can lead to both civil action and criminal charges.
This article will focus on the criminal aspect of trespassing in Victoria. It’ll discuss the elements of the offence, possible penalties, and the defences available to anyone facing the charge.
If an individual is convicted in a Victorian court for a Trespass offence, the offence will show up as a disclosable court outcome (DCO) on a national criminal background check in Victoria.
Section 9(1)(e) of the Summary Offences Act 1966 (Vic) makes it a crime for a person to enter a private place without the owner or occupier's consent or for a legitimate purpose. Going into a scheduled public place without permission is also an offence. Such public areas include residential services and treatment facilities, public schools, cemeteries, and mental health services.
This crime is what is popularly referred to as trespass. To prove that a person committed this offence, the prosecution must prove the following elements:
#1. The accused entered a private or scheduled public area s
A ‘private place’ under this section can include a private residence, building site, shopping centre, or retail premises.
On the other hand, Section 3 of the Summary Offences Act 1966 (Vic) defines a scheduled public location as a public place. The exact section defines a public place as including:
#2. The accused did so intentionally
The prosecution must also show that the defendant entered the scheduled public or private place intending to trespass. This element means that the accused must have known that they had no lawful excuse to enter the property. They must have been aware that they were prohibited from going into the premises. Otherwise, they must have been reckless to this fact.
#3. The defendant had received notice of the prohibition
The accused person must have received verbal or written notice informing them that they were not allowed to enter the premises. This notice could come in the form of a sign displayed outside the property warning unauthorised people to 'keep out.'
Alternatively, a verbal notice by the owner or occupying telling the defendant that they are trespassing also suffices as sufficient notice.
The crime of entering a place without lawful excuse is a summary offence in the State of Victoria. Therefore, such charges will be primarily brought before the Magistrates Court.
As per Section 9(1)(e) of the Summary Offences Act 1966 (Vic), the maximum penalty for trespassing in Victoria is a fine of 25 penalty units (almost $4,600). Alternatively, the Court may sentence the offender to imprisonment for six months.
It is essential to note that trespassing is also a civil wrong. This means that the owner or occupier can bring a private action against the accused person in Court. If they can prove that the defendant trespassed on their property, the Court can order the defendant to pay them a specific sum of money (i.e. damages).
A defendant can plead any of the following defences when facing trespassing charges in Victoria.
#1. Honest and reasonable mistake
This defence is available if the accused person honestly and reasonably believed that the premises were not private property or a scheduled public place. It is also a defence that the defendant mistakenly entered the location in question.
Using this defence, the accused person asserts that they did not commit the alleged offence. They may even argue that it is a case of mistaken identity.
#3. Lack of intent
A crucial element of the crime of trespass is that the accused person entered the prohibited area intentionally. Therefore, it is a defence if the defendant did not enter the property intending to trespass.
#4. Sudden or extraordinary emergency
A defendant could plead this defence if they entered the prohibited area due to a sudden or extraordinary emergency. However, the Court will only accept this defence if the accused can prove that:
#5. Lawful excuse or authority
Having a lawful excuse is a defence to trespassing. Examples include entering into the restricted area to retrieve a personal belonging or protect the property from damage. The latter can also be an example of a sudden and extraordinary emergency.
It is also a defence if the defendant had or believed they had the owner or occupier’s permission to enter the place.
Statistics show that a large percentage of trespass cases in Victoria end in imprisonment. In such cases, the problem does not end there. Incarceration and convictions, in general, can also have a damaging effect on a person's social and professional life. The best bet for anyone facing trespass charges is to consult a criminal lawyer from the get-go.
If an individual is found guilty of a trespass offence in Victoria, the offence will show up as a disclosable court outcome (DCO) on the results of their police check.
Individuals can obtain a national criminal history check online via the Australian National Character Check - ANCC® website.
Summary Offences Act 1966 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/summary-offences-act-1966/131
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