Under s 70A of the Criminal Code (WA), the court must resolve two separate questions: first, whether the prosecution has proved trespass beyond reasonable doubt; and second, whether the defendant has discharged the onus of proving a lawful excuse on the balance of probabilities. The excuse must be identified separately from the trespass itself — the court does not have a broad discretion to assess whether the trespass merits criminal sanction. The existence of a non-criminal purpose does not, of itself, provide a lawful excuse. The word 'lawful' in 'without lawful excuse' means 'not forbidden by law' rather than 'positively authorised by law'. In criminal appeals from magistrates under the Criminal Appeals Act 2004 (WA), there is no general rule that costs follow the event.
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