OF08 Tresspass & Unlawfully on Property

Question 1

Elements of ‘Trespass after warning to leave’

Answer 1

Question 2

When does a person potentially become a trespasser?

Answer 2

Once they have received a warning to leave by the lawful occupier and then refuses to do so.

Question 3

Elements of ‘Trespass after previous warnings’

Answer 3

Question 4

When can a trespass notice be given?

Answer 4

• Are likely to trespass - e.g. a member of an abortion protest trespassed from entering an abortion clinic
• Are trespassing - e.g. that member does trespass on the abortion clinic
• Have trespassed - e.g. the member has trespassed on the clinic but has been ejected - could issue a notice at a later date
• Have been convicted of trespass - e.g. the member is prosecuted for trespass - the court may issue a trespass notice to the defendant

Question 5

What are the legal defences to trespass?

Answer 5

• Their own protection
• The protection of somebody else
• An emergency involving their property or the property of some other person
• The occupier who gave the warning no longer occupies the place concerned

Question 6

How can warnings be given?

Answer 6

Under Sections 3 & 4 may be given orally OR by notice in writing served personally or by registered post.

For a charge under Section 4, an oral warning must be clear (i.e. “I want you to leave my property right now and, under the terms of the Trespass Act, I do not want you to come back onto my property for two years”).

Question 7

What information can be demanded by an officer seeking to issue a trespass notice?

Answer 7

1. Once found trespassing, the owner or police can require that person to:
   a) give their name and address; and
   b) if they are in possession of a firearm, give their firearms licence number
2. If the person fails or refuses to comply with these requirements, any member of the police can:
   - caution the person; and
   - if the person persists in their failure or refusal, arrest without warrant
3. Offences are created of:
   a) failing or refusing to comply with the requirements
   b) giving false name and address
   c) wilfully giving particulars that are insufficiently precise to enable the address to be readily identified

Question 8

What are the elements of ‘Being found on property without reasonable excuse’?

Answer 8

Question 9

Define what an enclosed yard is

Answer 9

“Any enclosed yard, garden or area, appurtenant to a building”

Court will consider if an area is enclosed and appurtenant to a building. A Judge has confirmed that an area can be enclosed by way of hedges, trees etc. and not just fences, as long as the boundary is clear.

Question 10

Is it a reasonable excuse if someone trespasses after the duty manager that trespassed them leaves?

Answer 10

Yes, it potentially is a ‘resonable excuse’

Question 11

Is “forgetting that you were trespassed” a reasonable excuse to trespassing?

Answer 11

No

Question 12

How to tell between the two trespass offences in relation to the legislation naming

Answer 12

RB: Trespass after warning to leave - s3 Trespass after warning to leave

RB: Trespass after previous warnings - s4 Trespass after warning to stay off

Question 13

What is one rule to remember regarding the amount of elements for both trespass offences?

Answer 13

s3 - 4 elements

s4 - 3 elements

Question 14

What can an occupier of private land demand from a trespasser?

Answer 14

N, A, FLINCO

Name, address, firearms licence number (if in possession of a firearm)

Question 15

What would you do if someone refused to give them your details after they were trespassing?

Answer 15

Caution them, and if they continue to refuse, arrest them without warrant