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Trespass Offences and Penalties Victoria (Vic)

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

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 Nationally Coordinated Criminal History Check.

What is the Offence of Trespassing 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:

  • A garden reserve, park, or any other place open to the public for recreation or resort;
  • A jetty or wharf pier;
  • A railway station platform or carriage;
  • A passenger boat or ship plying for hire;
  • A public vehicle for hire;
  • A Government school or connected areas;
  • A chapel or church open to the public or any other structure where divine service is publicly held;
  • A market;
  • A public hall theatre or room while members of the public are in attendance, or are assembling for or departing from, general entertainment or meeting therein;
  • An auction room or any place while an auction sale is holding;
  • Any licensed or authorised premises within the meaning of the Liquor Control Reform Act 1998 (Vic);
  • A football ground, cricket ground, race-course or any other location while members of the public are present or allowed to have access into with or without payment for admission;
  • An open place to which the public, whether upon or without charge for admittance, have access
  • A place of public resort; and
  • A public highway, road, street, bridge, footway, court alley passage or thoroughfare, whether on private property.

#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.

Jurisdiction: Which Court Can Hear Trespass Offences in Victoria?

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.

What is the Penalty for Entering a Place Without Authority or Lawful Excuse?

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).

What Defences Are Available to A Person Facing Trespass Charges?

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.

#2. Innocence

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:

  • They honestly and reasonably believed that the circumstance was a sudden or extraordinary emergency
  • They sincerely believed that trespassing was the only appropriate way to handle the emergency
  • The trespass was a reasonable response to the emergency.

#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.

Bottom Line

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.

Will a Trespass Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a trespass offence, the offence will show up as a disclosable court outcome (DCO) on the results of their police check.

Individuals can obtain a nationaly coordinated criminal history check online via the Australian National Character Check - ANCC® website.

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