W2 OF08 Property 2 Tresspass and Unlawfully on Property Flashcards
What is Section 3 of the Trespass Act 1980?
Trespass after warning to leave
What is Section 4 of the Trespass Acct 1980
Trespass after warning to stay off
What is Section 5 of the Trespass Act 1980?
Delivery of warnings - a warning under section 3 or section 4 shall be given to the individual person concerned whether orally, or by notice in writing.
What is Section 9 of the Trespass Act 1980?
Demanding details of identity.
Obligation to give name and other particulars
What is Section 56 of the Crimes Act 1961?
Defence of land or building
- everyone in peaceable possession of any land or building is justified in using reasonable force to prevent any person trespassing as long as they do not strike or do bodily harm to that person
For Section 29(1)(a) or (c) of the Summary offences Act 1981 list the elements of being found on property
The person must be:
Found - proven by: to be seen, to be discovered, to come upon.
Without reasonable excuse
In - proven by: physically inside of
or
On - proven by: physically on
Any building - proven by: a structure with a roof and walls.
or
Any aircraft, any hovercraft, any ship, ferry or other vessel, any train, any vehicle
For Section 29(1)(b) of the Summary Offences Act 1981 list the elements of being found on property
The person must be:
Found - proven by: to be seen, to be discovered, to be come upon
Without reasonable excuse
In - proven by: physically inside of
Any enclosed yard or other such area - proven by: an enclosed yard, garden or area, appurtenant to a building.
Define ‘found’
to be seen
to be discovered
to come upon
Define ‘without reasonable excuse’
This phrase has not been defined by law but broadly means there is no reason for the person to suppose they are allowed or have a right to be on the property.
What are the powers of arrest for ‘Being Found on Property’?
Section 39(1) of the Summary Offences Act 1981 provides the police with a power to arrest without warrant for this offence
What are the procedures for dealing with a ‘Being Found on Property’ complaint?
Responding to a complaint:
- obtain details of the complaint
- check if a police dog is available
- approach quietly and park away from address
- cordon address, ensuring escape routes are covered
- search grounds thoroughly
- interview victim and obtain all details necessary to prove the offender has been “found”.
- examine scene to gather evidence for a charge
Factors:
- always ensure offender located has no authority to be on the property
- do not assume there is only one offender
- consider if offender has committed other offences
- dogs can be used to backtrack an offender
What are the differences between peeping or peering and being found on property?
Peeping or peering is a specific offence used when someone is caught watching people in a house or loitering on land for that purpose.
What is the difference between Sections 29(1)(a) and (c) and Sections 29(1)(b)?
Sections (a) and (c) relate to being found on property without reasonable excuse in a building or transport.
Sections (b) relate to being found on property without reasonable excuse in an enclosed yard or area..
What is the Act and Section used for “being found on property”?
Section 29 of the Summary offences Act 1981
What is the penalty for “being found on property”?
imprisonment for a term not exceeding 3 months or a fine not exceeding $2000
What are the procedures for dealing with an offence against Section 3 on the Trespass Act 1980?
Trespass After Warning to Leave
Obtain full particulars of complaint and ensure the Victim is an occupier
Ascertain all facts
Ensure the offender is a trespasser
If trespass has been comitted either:
Arrest for offence under section 3
or
If person leaves peacefully:
- record full particulars
- if occupier requests warn trespasser to stay off and inform them that they commit an offence if they return within 2 years.
or
If person refuses to leave:
confirm warning by having occupier ask trespasser to leave in your presence; if continued refusal to leave
- ask victim in front of trespasser, “Do you wish me to act on your behalf?”
- if victim consents, warn trespasser to leave
- give them reasonable time to leave
- if they still refuse to leave you can arrest them.
What are the procedures for dealing with an offence against Section 3 on the Trespass Act 1980?
Obtain full particulars of victim and ensure he/she is the lawful occupier.
Ascertain all facts of complaint:
• establish that there was a warning within the last two years to stay off that place
• check for any documentary proof of the warning.
Speak to offender:
• if possible, obtain acknowledgement of previous warning
• seek an explanation from offender
If not acknowledged, satisfy yourself that victim has made correct identification.
Warn to leave and if he / she refuses, use your discretion to arrest.
What are the powers under Section 9 of the Trespass Act 1980?
Powers under Section 9 Trespass Act 1980 are:
Where any person is found trespassing on any private land:
• the occupier or any member of police may require that person to:
− give particulars of his/her name and place of abode; and
− give the number of his/her firearms licence if he/she is in possession of a firearm.
If any such person fails or refuses to comply with these requirements, any member of police may: - caution him/her and If he/she persists in failure or refusal - arrest without warrant.
Define ‘lawful occupier’
Means any person in lawful occupation of that place or land and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land.
How long is a warning effective under Section 4 of the Trespass Act 1980?
Two years
List the ways warnings are given pursuant to Sections 3 and 4 of the Trespass Act 1980
May be given orally
By notice in writing served personally or by registered post.
List the legal defences to Section 3 of the Trespass Act 1980
It is a defence if the defendant proves it was necessary to remain on the property for:
- their own protection
- the protection of someone else
- an emergency involving his/her property or the property of another person.
What is the procedure for dealing with a trespass offence at public entertainments or public meeting?
A person becomes a trespasser when asked to leave by management or chairperson and refuses to leave.
What are the provisions of Section 56 of the Crimes Act, which relate to when you may use reasonable force to prevent any person from trespassing?
Reasonable force may be used to prevent any person trespassing on any land or building when lawfully assisting any person in peaceable possession of such land or building.
You must not strike or do bodily harm to that person.
Define the element “wilfully trespasses on that place”
The offender intentionally, deliberately, without mistake returns to the premises.
Section 4
Define the element “neglects or refuses to leave”
After the warning, the person neglects or refuses to leave. The person must be given reasonable time to leave.
Section 3
What is the procedure for Section 9 of the Trespass Act 1980?
where any person is found trespassing on any private land; the occupier or any memeber of police may reuire person to:
- give their name and address, and
- if they are in possession of a firearm, give their firearms licence number.
If they fail to comply, any member of police may:
- caution th eperson, and
- if the person persists in their failure or refusal, arrest without warrant.
How is an offence created under Section 9 of the Trespass Act 1980?
- Failing or refusing to comply with requirements
- Giving false name and address, and
- wilfully giving particulars that are insufficiently precise to enable the address to be readily identified.
When is someone trespassing?
A person is not trespassing until they have been warned to leave by the lawful occupier and then refuses to do so
What are the elements of Section 3 of the Trespass Act 1980?
Trespass After Warning to Leave
Trespasses: is on another persons property without authority or permission
On any place: at any physical address
After being warned to leave that place by an occupier of that place: must be told to leave by lawful occupier
Neglects of fails to do so: after warning person neglects or refuses to leave. They must be given a reasonable time to leave
What are the elements of Section 4 of the trespass Act 1980?
Trespass After Previous Warnings
Being a person who has been warned under Section 4 to stay off any place: a person who has been issued with a warning, either verbally or in writing to stay off a property
Wilfully trespasses on that place: the offender intentionally, deliberately, without mistake, returns to the premises
A trespass notice can ne given to a person when they ..
HAHA
Have trespassed
Are trespassing
Have been convicted of trespass
Are likely to trespass
What does section 9 involve?
To get details
Trespass After warning to leave
S 3(1) Tress pass ACT 1980
Trespass After Warned to
LEAVE
ELEMENTS
Trespasses
On any place
After being warned to leave that place by a lawful occupier of that place
Neglects of refuses not todo so
Trespass
- Definition
Being on another persons property authority or permission
Tres pass after warning to
LEAVE-
Penalty
3 months, OR $1000
Trespass After warning
LEAVE- Legal Defence
Defence if the defendant proves it was necessary to remain on the place/property for:
- Own protection (e.g save themselves)
- Protection of someone else (i.e save someone else)
- An emergency involving their property/ someone else (e.g call the fire service)
Preventing or Stopping Trespass with Force- Section/Definition
Section 56 Crimes Act 1961
You may use reasonable force to prevent someone or remove someone who is trespassing- Cant strike or do bodily harm to that person.
Trespass After Warning to stay OFF-
Section
Section 4(4) Trespass Act 1980
Trespass After warning to STAY OFF-
Elements
Being a person who has been warned under Section 4 to STAY OFF any place.
Wilfully trespasses on that place
Within 2 years
Trespass AFTER warning to Stay OFF-
Penalty
3 months, OR $1000
Trespass Notice requirments
Does not have to be in writing- but is preferred to be:
Notice for Trespass under Section 3:
- merely needs to ask them to leave
Notice for Trespass under section 4:
- Requires more detail/explanation- telling them they must not return within 2 years, present to Trespass
Act conditions
Voiding A trepass notice
Trespass Notice will be void if another Occupier allows them back on the property
