The Defence of Claim of Right

Honest claim of right is a defence to some property offences, such as theft. It involves a genuine belief held by an accused that he or she is entitled to the property he or she has allegedly stolen.

The test for a defence of claim of right

A genuine belief held by a person that he or she has a bona fide claim of right to certain money or property is a defence to any crime of which larceny is an element. The defence also extends to any person who takes the property on behalf of another, or in collaboration with another, whom he or she believes to have a bona fide claim of right to the money or property in question.

The Law and The Onus of Proof for A Defence of Claim of Right

The Criminal Code 2002 provides for the defence of claim of right in the ACT. Section 38 provides:

• A person is not criminally responsible for an offence that has a physical element relating to property if—
  • when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and
  • the existence of the right would negate a fault element for any physical element of the offence.
• A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
• This section does not negate criminal responsibility for an offence relating to the use of force against a person.

The accused bears an evidentiary onus (he or she must call evidence that raises the defence).

Once the accused discharges the evidentiary onus, the prosecution must then negate the defence of claim of right beyond a reasonable doubt.

Principles for A Defence of Claim of Right

The NSW Court of Criminal Appeal summarised the legal principles relating to claim of right as follows:

• The claim of right must be one that involves a belief as to the right to property or money in the hands of another.
• The claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not.
• While the belief does not have to be reasonable, a colourable pretence is insufficient.
• The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
• The existence of such a claim when genuinely held may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it.

The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold it by way of safekeeping, or as security for a loan, yet the actual intention was to sell it.

The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.

In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts.

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