Trespass Lawyer
Cairns & Far North Queensland
You have been charged with trespass. In Queensland, trespass is a criminal offence — not just a civil wrong. It means unlawfully entering, or remaining in, a dwelling or a place of business. The charge does not require you to have intended to steal anything or cause damage. All the prosecution needs to prove is that you were on the premises without lawful authority or excuse. Trespass charges arise in a range of circumstances — from returning to a former home after a relationship breakdown, to entering a commercial premises after being banned, to wandering onto someone's property while intoxicated. The maximum penalty is 1 year's imprisonment, which surprises most people. For a first offence with no aggravating features, a fine, bond, or no conviction recorded is the realistic range of outcomes — but the charge must be taken seriously.
The Offence — Section 11, Summary Offences Act 2005
Trespass is defined in section 11 of the Summary Offences Act 2005 (Qld) . There are two limbs: Section 11(1) — Dwelling trespass A person must not unlawfully enter, or remain in, a dwelling or the yard for a dwelling . Standard: Maximum penalty — 20 penalty units or 1 year's imprisonment With circumstances of aggravation: Maximum penalty — 40 penalty units or 1 year's imprisonment Section 11(2) — Business premises trespass A person must not unlawfully enter, or remain in, a place used as a yard for, or a place used for, a business purpose . Standard: Maximum penalty — 20 penalty units or 1 year's imprisonment With circumstances of aggravation: Maximum penalty — 40 penalty units or 1 year's imprisonment The circumstance of aggravation under section 11(4) is the circumstance stated in section 52B of the Criminal Code — where the offence is motivated by hatred or serious contempt based on race, religion, sexuality, sex characteristics, or gender identity. What "unlawfully" means Entry or remaining is "unlawful" if the person does not have the express or implied consent of the occupier to be on the premises. Consent can be withdrawn at any time — if you are told to leave and you do not leave within a reasonable time, your continued presence becomes unlawful. A person who entered lawfully (as a customer, a visitor, or a guest) becomes a trespasser the moment their permission to be there is revoked and they fail to leave. What "dwelling" and "business premises" mean A "dwelling" includes a house, unit, apartment, caravan, houseboat, or any place used as a residence. The "yard for a dwelling" includes the garden, driveway, and curtilage of the residence. A "business premises" includes shops, offices, warehouses, construction sites, hotels, and any place used for commercial purposes. No intent required Unlike unlawful entry under section 419 of the Criminal Code (which requires entry with intent to commit an offence), trespass under section 11 does not require any specific intent. The prosecution does not need to prove you intended to steal, damage property, or commit any other offence. All that is required is that you were on the premises without lawful authority.
Trespass vs Unlawful Entry (Break and Enter)
Trespass under section 11 of the Summary Offences Act and unlawful entry under section 419 of the Criminal Code are different offences with different elements and very different consequences: Trespass (s 11 SOA) Unlawful entry (s 419 CC) Classification Simple offence Indictable offence (crime) Maximum penalty 20 PU or 1 year 14 years (life imprisonment with aggravation) Intent required? No Yes — intent to commit an indictable offence inside Court Magistrates Court only District Court (may be dealt with summarily) Method of entry Any entry — including walking through an open door Any entry (breaking in is an aggravating factor, not a requirement) The distinction matters in practice. Where a person has entered a dwelling without breaking in and without any intention to commit an offence inside, the appropriate charge is trespass — not unlawful entry. If the prosecution has charged unlawful entry but the evidence does not support the element of intent, the charge may be reduced to trespass through representations or at committal.
Common Scenarios in Cairns
Trespass charges in the Cairns Magistrates Court arise from a range of circumstances: Returning to a former home after a relationship breakdown One of the most common scenarios. A person returns to the home they previously shared with a partner — to collect belongings, to talk, or simply because they are used to being there. If the relationship has ended and the occupier does not consent to their presence, the entry is unlawful. Where a Domestic Violence Order is in place with an ouster condition, the person is explicitly excluded from the premises and any return constitutes both trespass and contravention of a DVO . Banned from commercial premises A person is asked to leave a shop, hotel, or licensed venue and returns despite being told not to. Many licensed venues and shopping centres issue formal trespass notices — written notices that revoke the person's permission to enter. Returning after a trespass notice has been issued is clear evidence of unlawful entry. Entering property while intoxicated A person affected by alcohol enters the wrong house, wanders into a stranger's yard, or falls asleep on someone's property. While the entry may not have been malicious, intoxication is not a defence. The entry is unlawful regardless of the person's subjective state of mind. Neighbourhood disputes A person enters a neighbour's property during a dispute — crossing a boundary fence, entering a shared driveway, or going onto a neighbour's land to confront them. These matters often involve competing versions of events and questions about property boundaries and common areas. Bail condition breaches A person on bail with a condition not to attend a particular address returns to that address. This can result in both a trespass charge and a breach of bail condition — with consequences for the person's bail.
Defending the Charge
Trespass under section 11 has two elements: (1) the person entered or remained in the premises, and (2) the entry or remaining was unlawful. Both can be challenged. Lawful authority to be on the premises If the person had the consent of the occupier — express or implied — to be on the premises, the entry was not unlawful. Implied consent exists in many everyday situations: a customer entering a shop during business hours, a delivery driver entering a property to deliver a parcel, a person walking up a driveway to knock on a door. The prosecution must prove that consent was absent or had been withdrawn. Consent was not clearly withdrawn If the occupier revoked consent, the prosecution must prove that the person knew their permission had been withdrawn. If the request to leave was ambiguous, communicated to someone else, or not communicated at all, the element of unlawfulness may not be established. A formal trespass notice is strong evidence; a vague statement made during an argument may not be. Reasonable time to leave A person who is told to leave must be given a reasonable time to do so. If the person was in the process of leaving when police arrived, or if the time between being asked to leave and the police being called was very short, the charge may not be made out. Right of access Certain people have a legal right of access to premises regardless of the occupier's wishes. This includes landlords exercising statutory rights of entry, authorised industrial officers under workplace legislation, and persons exercising rights under court orders (such as orders for the recovery of personal property). Section 11(3) expressly provides that the trespass offence does not prevent an authorised industrial officer from entering a workplace in accordance with the terms of their appointment. Honest and reasonable mistake A person who honestly and reasonably believed they had permission to be on the premises, or who entered the wrong property by genuine mistake, may not have entered "unlawfully" in the relevant sense. This depends on the specific facts and the reasonableness of the mistake.
Sentencing — What Changes the Outcome
The sentencing range for trespass runs from a fine through to imprisonment. For a first offence with no aggravating features, the realistic range is a fine, a good behaviour bond, or no conviction recorded. Whether this is a first offence. First offenders with no prior criminal history have a strong prospect of no conviction recorded — particularly where the trespass was benign (no damage, no confrontation, no intent to commit a further offence). The nature of the premises. Trespass on a dwelling — particularly at night — is treated more seriously than trespass on business premises during the day. A person entering someone's home uninvited raises immediate safety concerns that the court takes seriously. The circumstances of the entry. Was the person asked to leave and refused? Did they force entry? Were they aggressive or threatening? Or did they walk through an open door, collect their belongings, and leave? The character of the entry affects the sentencing outcome significantly. Whether damage was caused. Trespass accompanied by property damage, theft, or threatening behaviour attracts a more serious penalty. It may also result in additional charges. The DV context. Where the trespass is connected to a domestic relationship — returning to a former partner's home, breaching a DVO ouster condition — the court treats the matter with greater seriousness. The trespass is seen in the context of the broader domestic violence dynamic. Your personal circumstances. Employment, housing stability, family responsibilities, and the impact a conviction would have on your life are all relevant. The court has discretion under section 12 of the Penalties and Sentences Act 1992 to decline to record a conviction where the circumstances warrant it.
Related Charges
Trespass is often charged alongside other offences arising from the same incident: Unlawful entry (break and enter) (s 419 Criminal Code ) — where the prosecution alleges the person entered with intent to commit an indictable offence. This is a much more serious charge. In some cases, the evidence does not support the intent element and the charge can be reduced to trespass. Contravention of a DVO (s 177 DFVPA) — where the trespass involves entering premises the person is excluded from by a Domestic Violence Order. Wilful damage (s 469 Criminal Code ) — where property was damaged during or in connection with the trespass. Obstruct police (s 790 PPRA) — where police attended and the person obstructed the police response. Stealing (s 398 Criminal Code ) — where the person took property from the premises during the trespass. Public nuisance (s 6 SOA) — where the person's behaviour on or near the premises was disorderly, offensive, or threatening. Where trespass is charged alongside more serious offences, the defence strategy must address all charges together. In some cases, a plea to trespass is part of a negotiated outcome that results in more serious charges being withdrawn.
Frequently Asked Questions
Is trespass a criminal offence in Queensland?
Yes. Unlike in some other contexts where trespass is a civil matter, section 11 of the Summary Offences Act 2005 makes trespass a criminal offence. A conviction results in a criminal record entry. The maximum penalty is 20 penalty units or 1 year's imprisonment — which increases to 40 penalty units with circumstances of aggravation.
Can I be charged with trespass for going back to my own home?
If you previously lived at the premises but no longer have a right to be there — because the relationship has ended, the lease is in someone else's name, or a DVO ouster condition excludes you — then entering the premises without the current occupier's consent is trespass. The fact that you previously lived there does not give you an ongoing right of entry.
I just walked in to collect my belongings — is that trespass?
If the occupier did not consent to your entry, it is technically trespass regardless of your purpose. However, the reason for your entry is highly relevant to sentencing. A person who entered briefly to collect personal property, without causing any disturbance, is treated very differently from a person who entered to confront the occupier. If you need to collect belongings from premises you are excluded from, the proper course is to arrange access through a solicitor or by police escort.
What is the difference between trespass and break and enter?
Trespass (s 11 SOA) is a simple offence with a maximum of 1 year's imprisonment. It does not require any intent beyond being on the premises without permission. Unlawful entry (s 419 Criminal Code — burglary) is an indictable offence with a maximum of 14 years imprisonment, rising to life imprisonment with aggravation (entry by break, at night, with violence, armed, or in company). It requires proof that the person entered with intent to commit an indictable offence inside. They are very different charges.
Will I get a criminal record for trespass?
Not necessarily. For a first offence with no aggravating features — no damage, no confrontation, no connected DV matter — no conviction recorded is a realistic outcome with proper preparation. The court considers the circumstances of the entry, your personal situation, and the impact a conviction would have on your life.