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Trespassing is a legal concept that pertains to unauthorised entry or intrusion onto another person’s property. In NSW, trespassing is not a criminal offence. However, there are exceptions to this as there are other provisions which are a criminal offence. In addition, you can be charged with break and enter offences in NSW depending on the circumstances.
Trespass is generally defined as the intentional or negligent intrusion upon another person’s land or property without their consent. In Australia, trespass can occur in various forms, including entering another person’s property without permission, remaining on the property after being asked to leave, or causing damage to the property.
Trespass can be categorised into two main types: trespass to land and trespass to goods. Trespass to land refers to the unauthorised entry onto another person’s property, while trespass to goods occurs when someone interferes with or unlawfully takes possession of another person’s belongings without their consent.
Trespass as a Criminal Offence in NSW
If an individual enters your property in New South Wales for a lawful purpose, such as delivering mail or visiting, they are not violating the law. However, if you, as the owner or occupier of the property, ask someone to leave and they refuse to do so, they are committing an offence under the Inclosed Lands Protection Act 1901.
Under Section 4 of the Act, it is considered an offence to enter enclosed lands without permission. The punishment for this offence is a fine of five penalty units, or 10 penalty units if the land is categorised as prescribed premises, like a school or hospital.
Furthermore, Section 4A of the act imposes stricter penalties for individuals who remain on the land after being directed to leave by the owner, occupier, or person apparently in control of the land, particularly if the offender behaves offensively while staying on the premises. In the case of prescribed premises, the maximum penalty for this offence is a fine of 20 penalty units, while in all other cases, the penalty is a fine of 10 penalty units.
It’s important to note that the Inclosed Lands Protection Act specifies that any civil action related to trespassing under the act must be initiated within two months of the commission of the offence.
While trespassing is generally prohibited, there are lawful excuses that can exempt individuals from criminal liability. These lawful excuses are recognised by Australian law and provide legal justification for trespassing under specific circumstances under criminal law. It is important to note that the availability and acceptance of lawful excuses or legal defences can vary across different jurisdictions within Australia.
The most straightforward lawful excuse for trespass is obtaining the consent of the property owner or occupier. If an individual has explicit permission to enter or remain on someone else’s property, they are not considered trespassers. It is crucial for consent to be freely given and not obtained through fraud, coercion, or duress.
In certain situations, trespassing may be excused if it is deemed necessary to protect life or prevent serious harm. For example, if someone enters another person’s property to rescue someone in immediate danger or to prevent a hazardous situation, they may have a lawful excuse for trespass.
In some cases, specific legislation or regulations may grant individuals the right to enter or remain on certain properties. This can include government officials, emergency responders, or individuals performing their duties under the law.
In certain circumstances, long-term use or occupation of a property may grant individuals prescriptive rights. This occurs when someone has consistently and openly used the property for a specified period, usually over many years, and can provide evidence of such use.
One of the most frequently encountered violations is the act of “breaking, entering, and committing a serious indictable offence.” This constitutes a criminal offence according to section 112(1) of the Crimes Act 1900 (NSW). The typical serious indictable offence that is often committed in such cases is theft.
The offence of break, enter, and steal is carried out when the accused person:
However, a person can be charged under section 112(1) by committing any serious indictable offence once they have entered the property. A “serious indictable offence” refers to any offence that carries a maximum penalty of imprisonment for five years or more. Examples include sexual assault, assault resulting in actual bodily harm, or intimidation.
When trespassing is committed and none of the lawful excuses are applicable, individuals may face legal consequences. Penalties can vary depending on the severity of the trespass, any accompanying offences, and the jurisdiction in which the offence was committed.
The courts may also order individuals to pay compensation for any damage caused during the trespass.
Understanding the legal framework surrounding trespass for break and enter offences is essential for individuals to respect others property rights and avoid potential legal consequences.
If you have been charged with a trespass offence or are being civilly prosecuted for such a matter, obtain legal advice immediately. Our avo specialist lawyers in Sydney can assist you and provide legal advice to you.