Public Order Offences – WA
Trespass is a criminal offence in Western Australia under section 70A of the Criminal Code Act Compilation Act 1913 (WA). While it sits at the less serious end of the criminal spectrum, a conviction is a disclosable court outcome that will appear on a criminal history check — making it worth taking seriously regardless of how minor the circumstances may seem.
What the Law Says
Section 70A provides that a person who, without lawful excuse, trespasses on a place is guilty of an offence.
“Trespass” is defined to mean any of the following:
- Entering or being in a place without the consent or licence of the owner, occupier, or person having control or management of the place
- Remaining in a place after being requested by a person in authority to leave
- Remaining in a part of a place after being requested by a person in authority to leave that part
The definition of “place” under the Criminal Code is broad — it covers residential premises, commercial buildings, agricultural land, construction sites, government buildings, and other enclosed or managed areas. It is not limited to buildings or fenced land.
A “person in authority” for the purposes of this section depends on who owns or controls the place. For Crown-owned property or government premises, a police officer qualifies as a person in authority in addition to the occupier or manager.
The Maximum Penalty
The maximum penalty for trespass under section 70A is 12 months imprisonment and a fine of $12,000.
In practice, first-time offenders without aggravating circumstances are unlikely to receive imprisonment. Sentencing outcomes range from fines through to community-based orders depending on the circumstances, though the potential for a conviction to be recorded makes early legal advice worthwhile.
Related Offence — Failing to Provide Name and Address
Section 70B of the Criminal Code creates a related offence. If the owner of enclosed land finds a person trespassing, they may request that person’s name and address. Refusing to provide this information, or providing a false name or address, is a separate offence carrying a fine of up to $500. This provision applies specifically to enclosed land and is separate from the main trespass offence under section 70A.
What the Police Must Prove
To secure a conviction under section 70A, the prosecution must establish beyond reasonable doubt one of the following:
- The accused entered or was present in a place without the consent or licence of the owner, occupier, or person in control, or
- The accused remained in a place after being asked to leave by a person in authority, or
- The accused remained in a part of a place after being asked to leave that part by a person in authority
In each case the prosecution must also establish that the accused did not have a lawful excuse for being there.
Importantly, if the accused raises a lawful excuse as a defence, the onus shifts to the accused to prove that excuse on the balance of probabilities. This reversal of the usual burden is an unusual feature of this offence and one that defendants should understand before deciding how to respond to the charge.
Possible Defences
Defences available to a charge of trespass under section 70A include:
- Consent — the owner, occupier, or person in control had given permission to enter or remain, whether express or implied
- No request to leave — where the charge relies on remaining after being asked to leave, the prosecution must prove that a person in authority actually made that request; if no such request was made, the element fails
- Lawful excuse — there was a legitimate legal basis to be on the premises, such as exercising a statutory right of entry, carrying out a lawful duty, or attending in a professional capacity
- Emergency — the accused entered the property out of genuine necessity to avoid danger to themselves or another person
- Honest and reasonable mistake of fact — the accused genuinely and reasonably believed they had permission to be there, or that the property was public land; note that a mistake of law is not a defence
- Claim of right — an honest belief in a legal entitlement to be on the property
- Accident — the presence on the property was involuntary
- Identification — the prosecution cannot establish beyond reasonable doubt that the accused was the person who trespassed
Which Court Will Hear the Matter
Trespass under section 70A is a summary offence heard in the Magistrates Court of Western Australia.
When Trespass Becomes Something More Serious
Trespass charged alone under section 70A is relatively contained. However, where a person enters property intending to commit another offence — for example, theft, assault, or burglary — far more serious charges under sections 400 and 401 of the Criminal Code may apply, carrying significantly heavier penalties. If your matter involves allegations of any additional conduct beyond simply being present on the property, the charge landscape changes considerably and legal advice becomes more urgent.
If you have been charged with trespass in Western Australia, contact us on 1300 331 331 for a free first consultation, available 24 hours a day, 7 days a week.