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Trespassing With or Dangerous Use of a Firearm or Spear Gun

Trespassing with or dangerous use of a firearm or spear gun is an offence under section 93H of the Crimes Act 1900, which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You possessed a firearm, spear gun or imitation spear gun, and
  2. You entered any building or land (other than a road) in possession of the item

You are not guilty of the offence if you are able to establish ‘on the balance of probabilities’, that:

  1. You owned or occupied the building or land
  2. You had the permission of the owner or occupier to possess the item
  3. You had a reasonable excuse for possessing the item, or
  4. You possessed the item for a lawful purpose

Whether you had a reasonable excuse for possessing the item is a matter of fact to be determined by the court.

A ‘firearm’ is defined as:

A gun, or other weapon, that is or was, capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker.

The definition includes an ‘imitation firearm’ which is an object that, regardless of its colour, weight or composition, or the presence or absence of any moveable parts, substantially duplicates a firearm in appearance, but is not a firearm.

The definition does not include an object produced and identified as a children’s toy.

A ‘building’ includes a vehicle, vessel, tent or temporary structure.

Defences to the charge include:

  1. Self Defence
  2. Duress, and
  3. Necessity.

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