Across the threshold – trespass to land explained

Some crimes are very old. Trespass to property is both a criminal offence and a civil cause of action. It is covered in State criminal law in the Inclosed Lands Protection Act 1901.

As we discovered last week at Newtown Local Court, as old and well-known as the law in this area is, law-abiding people, acting with fair intentions, can still fall afoul of these provisions.

Entering someone else’s property, whether it be up their garden path, or through the door of their unit or their business, without their invitation or permission (what is called ‘licence’) can land you in court – depending on a few factors.

Think of how common it is to have really noisy neighbours and after repeated approaches to keep it down after a certain hour, who would not think of poking their head through the door or the window and telling them off? One can think easily of other circumstances when limited and brief entry into another’s personal or business premises may occur with possibly good reasons or without thinking.

For our client, what started this case was the noise from his next-door neighbour’s dance studio, operating in breach of its DA after-hours with late night beats and a dozen legs thumping the floor in rhythm – next to an open window and shared wall.

Many text messages to the owner and unacted upon complaints to council later, late one night, when messages were not being responded to, nearly an hour after when the studio session was supposed to end according to its DA, our client left his flat, walked up the stairs and through the doorway into the continuing dance session, stepping only a couple of steps inside the door and remonstrating with the group and then returned next door to his home.

He was charged sometime later under s.4(1)(b) that he entered the inclosed lands of the studio without the consent of the business owner.

He pleaded not guilty, and the matter proceeded to final hearing at Court.

The facts showed good intentions, his behaviour in the studio was hardly offensive; but what counted was his physical presence, and why he was there, then.

The legal question was: did his entrance through the interior studio door happen with a ‘lawful excuse’? This is the built-in defence of the section, but the burden of proving lawful excuse rests upon those seeking to claim a right to enter the land or space of the occupier.

There is High Court authority on the limits of lawful excuse. Statutory formulations may vary between the States and Territories, but the principles are broadly applicable. The leading cases[1] involve police entry, warrantless, up someone’s drive or path to the door to coerce their behaviour in certain ways, in the most recent high authority[2] for the purposes of administering an alcohol breath test. The decisions make clear that seeking to enforce something on an occupier within the boundaries of their home or premises (depending, with some complexity, on what was being sought, without invitation or implied licence) will fall outside of the ‘knock and talk’ implied licence (of, say, door-to-door canvassers), and can amount to a trespass.

Many powers of law enforcement provisions exist permitting officers access in various situations, but if in a broad array of scenario where these powers do not exist or apply, particularly for a private citizen seeking to ‘enforce’, as here, by way of a reminder to the occupier (and the terms of a broken DA by the Dance Studio), then the defence of lawful excuse in s.4(1)(b), which is interpreted according to the common law, as it has been enunciated by the High Court, may not actually extend this far.

As it happened in our case, by means of a late change of plea, and our voluminous evidentiary materials handed up to the bench in support of our plea in mitigation, the learned Magistrate was persuaded to expressing her understanding of how difficult it would be to have a next-door dance studio operating outside its permitted hours, late into the evening, and so declined to record a conviction, imposing the most lenient result available at law following establishment of guilt, being an order under s.10(1)(a) for an immediate dismissal, meaning the client avoided a conviction and paid no fine.

The lesson here is that when confronted by a situation like this, long-suffering neighbours to noisy premises must be mindful to seek legal advice before they decide to take matters into their own hands (and feet) by entering inclosed premises to issue an on-site complaint.

Crossing the boundaries of your neighbour’s property sometimes means knowing the boundaries of the law in this area of practice as well as the boundaries of your neighbour’s place.  If in doubt, ask lawyers who practice in this field.

[1] See: Halliday v Nevill & Anor (1984) HCA 80 

[2] Roy v O’Neill (2020) HCA 45 in particular the reasons of Bell and Gageler JJ

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action*.

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