CLAIM OF RIGHT – Defence to Larceny / Theft / Stealing

The defence of ‘claim of right’ is a complete defence that applies to both State and Commonwealth larceny or stealing offences. 

How Offences Are Proven:

In order for a person to be found guilty of any offence, the Prosecution must prove every element of the offence to the standard of beyond a reasonable doubt. 

The ‘elements’ of an offence are the ingredients that make up the offence. All offences contain physical elements (such as driving a motor vehicle, hitting or slapping another person, or being in possession of a drug) and mental or ‘fault’ elements (such as intent, recklessness or knowledge). When the Prosecution is unable to prove each and every element of the offence to the standard of beyond a reasonable doubt, the person charged should be found not guilty.

Even if the Prosecution can satisfy all the elements of an offence to the standard of beyond reasonable doubt, the person charged may raise a defence (such as self-defence, necessity, duress) to the charge which, if accepted, would mean they are not guilty of the offence. 

Elements of the Offence:

The offence of larceny, commonly known as stealing or theft, contains the following elements:

1. Property belonged to someone other than the accused, 
2. The property was taken and carried away, 
3. The property was taken without consent of the owner, 
4. The property was taken with the intention of permanently depriving the owner of it, and
5. The property was taken dishonestly.

The ‘claim of right’ defence goes directly to the fifth element which requires the accused to have taken the property dishonestly. This defence applies where a person holds a genuine and honest belief at the time they took the property that they had a lawful right to do so. If a person is acting under such a belief, which is genuinely and honestly held, then it cannot be said that the person was dishonest in taking the property, even if it was without the consent of the owner. 

Where a Defendant raises a claim of right defence, the Prosecution must negate that claim to the standard of beyond a reasonable doubt for the Defendant to be found guilty.

Principles of the Defence of Claim of Right from Case Law:

The principles applying to the defence of claim of right are explained in the matter of R v Fuge (2001) 123 A Crim R 310 at [314]-[315] and further detailed in Liristis v DPP (NSW) [2016] NSWCA 66 at [62] – [63].  These principles are:

1. The claim of right must involve a belief as to the right to the property or money in the hands of another.
2. The claim must be genuine and honestly held.
3. While the belief does not have to be reasonable, a “colourable pretence is insufficient”. Where the belief is not reasonable, this may go to whether it is plausible for the Defendant to hold their belief as to the right to the property. 
4. The belief must be one of a legal entitlement and not simply a moral entitlement.
5. The relevant issue is whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
6. The claim of right must extend to the entirety of the property or money taken.
7. It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.

Criminal Code Act 1995:

The defence of claim of right has been codified in the Criminal Code Act 1995 at Section 9.5:

1. A person is not criminally responsible for an offence that has a physical element relating to property if:
   1. at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
   2. the existence of that right would negate a fault element for any physical element of the offence.
2. A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
3. This section does not negate criminal responsibility for an offence relating to the use of force against a person.

If you have been charged with larceny or stealing offences and want to defend your matter based on a claim of right, we recommend you speak with one of your lawyers as soon as possible.