This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws, a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Claim Of Right


The defence of claim of right involves a genuine belief by an accused that they are entitled to property stolen. A claim of right is a complete defence to stealing.

Elements

A claim of right involves:

  • a genuine honest belief (regardless of whether it is well founded in fact or law)
  • regarding a legal entitlement (not just a moral one)
  • to property or money in the hands of another.

Leading case

The leading case is Court of Criminal Appeal case of R v Fuge. In that case, Chief Justice Woods held that:

“The existence of such a claim 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.”

A claim of right exists in all state criminal codes and section 9.5 of the Commonwealth code, which sets out that:  “a person is not criminally responsible for an offence that has a physical element relating to property if at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and the existence of that right would negate a fault element for any physical element of the offence”.

A claim of right can extend to a person who takes money or property on behalf of another, or in collaboration with another, if they believe the other person has a genuine claim of right to the money or property.

It can also extend to cases where what is taken is the equivalent to the specific property or money, but nothing more.

It is the prosecution’s responsibility to negative a claim where it is raised on the evidence.

For advice or representation in any legal matter, please contact Armstrong Legal.

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