This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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 they have a bona fide claim 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 they believe to have a bona fide claim to it.

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 must present evidence that raises the defence). The prosecution must then negate the defence 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, including that:

  • the claim must involve a belief about the right to property or money in the hands of another;
  • the belief must be honestly held;
  • the belief must be one of a legal right to the property not just a moral one.

The claim of right is not confined to the specific property or money and can extend to cases where what is taken is their equivalent in value, such as for  safekeeping, or as security for a loan, yet the actual intention was to sell it.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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