I'm not a solicitor OK?
I'd guess that the cop will not care about the technicality. I'd guess that the cop will arrest the protestor (given the circumstance, that arrest may be unlawful).
If the protestor resists (because maybe the arrest is unlawful) they'll also get resisting arrest and/or spray/taser/beating.
The cops will then haul the person away and charge them.
Court appearances, lawyer fees. They'll be offered the opportunity to plead guilty and pay a small fine or pay big money (defense lawyer fee) to defend it.
If they defend it...the cops might offer to withdraw the charge the day before the hearing, providing no costs are applied for.
If that is turned down, the cops could try to argue it or withdraw and argue against paying any costs. Only if it reaches this point (months after) will the street cop be asked for a statement, and he'll say when I arrived, this guy was inside the fence, so I arrested him. The street cop will not try to get a statement from you who saw the fence built around the protestor, that would work against him.
If the person wins costs, they might get 50% of their legal bill paid. Awarding costs almost NEVER covers the fee.
So...the cop on the street doesn't care if the fence got built around him.
That's interesting. It's worth mentioning that the police office was standing with the man the whole time the fence was being built around him. So the police office was witness to the land going from public space to an inclosed land and the police made no effort to move the person along while the fence was being built.
It ended peacefully, I was just interested to know how that works legally.
Yeah, the protestor might have rights, the officer might back away, and get a different officer to turn up later...
But it would cost the protestor lots of money and time to uphold their rights, and the cops can pull out and withdraw with minimal repercussions at any time. Even if the protestor got awarded costs and the magistrate made a statement to the media "police arrest was unlawful, police account was not credible", the protestor will be out if pocket several thousand, and the cop won't get any negative consequences.
If the protestor and cop were being filmed (by say you) the protestors options are greatly improved.
If the cops realise they are being filmed they have a different set of tricks, mainly blocking and intimidating the camera person and falsely seizing the camera as evidence.
4 Unlawful entry on inclosed lands
(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding:
(a) 10 penalty units in the case of prescribed premises, or
(b) 5 penalty units in any other case.
A drover or person in charge of stock being driven on a road lawfully inclosed within the lands of any person has a lawful excuse for entering those lands for the purpose of preventing the stock from straying, or regaining control of stock that have strayed, from that road.
(2) Where a road is lawfully inclosed with the lands of any person, and such road is not clearly defined but there is a reasonably defined track commonly used by persons passing through such lands, the centre of such track shall, for the purposes of this Act, be deemed to be the centre of the road.
(3) Where a road is lawfully inclosed with the lands of any person and such road is not clearly defined and there is no reasonably defined track through such lands a person passing through such inclosed lands shall not be guilty of an offence unless it is shown that the route taken by such person in so passing was, having regard to the circumstances, unreasonable.
(4) In this section,
"stock" includes horses, cattle, sheep, goats, pigs and camels.