8 / 3 / 2024

Claim of Right Defence in WA

Claim of Right Defence in WA

On occasion, where a criminal charge relating to property (generally theft or property damage offences), a ‘claim of right’ defence may be available in the particular facts and circumstances of the case.

It is a defence distinct from ‘honest and reasonable mistake of fact’. Generally speaking, ignorance of the law, or a genuine positive mistake about the law does not provide a defence to a charge of breaching that law.

Under the common law, a claim of right defence can be raised in circumstances where a person held an honest belief that they had a claim or an entitlement to the property in question. It does not matter whether the honest belief in the entitlement to the property was an unreasonable or unfounded claim, so long as the belief was honestly held. Evidence of a claim of right can be used to rebut the element of dishonesty, which the prosecution is required to prove beyond reasonable doubt.

The claim or entitlement must be a legal entitlement, as opposed to a moral entitlement to the property in question. Where the claim is for a debt, that debt must be due and payable at the time when the belief is held, as it would be dishonest to lay claim to a debt which is not yet due to be paid or a debt which is already known to be in dispute.

Once a claim of right defence  has been raised on the evidence, the prosecution must establish beyond a reasonable doubt that there was no genuine honest claim of right being exercised on the part of a defendant (or subsequent acts by the defendant demonstrate that the belief was not genuinely held). Claim of right is not available where a person has taken more property or money than the amount which the defendant honestly believed they were entitled to. While the belief does not have to be grounded in law or fact, and does not have to be reasonable, the reasonableness of the belief will be a factor taken into account by the court (or jury) when deciding whether the belief was genuinely held at the time of the alleged offending.

Claim of Right in Western Australia

The common law position has been modified by its codification in the Criminal Code Act Compilation Act 1913 (WA) (Western Australia Code), and judicial interpretation of these statutory provisions by the WA Supreme Court. The defence is expressed in section 22 of the Code as follows:

22. Ignorance of law, honest claim of right

Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

In Molina v Zaknich [2001] WASCA 337; 24 WAR 562 the Western Australian Court of Appeal held that section 22 of the Code was to be given “its literal and broad effect” and would apply to all offences relating to property, not just those offences contained within the Code. Further, it also was held to apply to claims of right raised under both legislation and the common law.

In the High Court decision of Ostrowski v Palmer, Gleeson CJ and Kirby J emphasised that section 22 of the Code must be read together with section 24 (set out below), which deals with the defence of honest and reasonable mistake of fact:

24. Mistake of fact

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

Their Honours explained that section 24 applies to mistakes about the facts making up the elements of the offence, not mistakes about the existence of the law creating the offence.

Ultimately, as in other jurisdictions, a claim of right is founded, not in an ignorance of the law (in terms of what may or may not constitute a criminal offence), or a mistake of fact per se, but upon an ignorance of the law of property law rights. It is not a claim to be able to act in a particular way (such as taking property from another person), but rather a claim of entitlement to or in that property. The belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one’s own title.  The use of unlawful or dishonest means to take the property does not necessarily exclude a defence of claim of right.

It is important to bear in mind that a defence of honest claim of right will only be available where the person charged introduces evidence their honest claim of right. However, once material supporting the defence is adduced by the person charged, the burden of negativing the defence rests upon the prosecution. This will often mean that, practically speaking, a defendant who wishes to raise the defence will need to provide positive evidence as to their honestly held belief, and will be assessed by the trier of fact as to whether they are a credible and reliable witness.

Max Haesler, Senior Lawyer


1 See Astor v Hayes (1988) 38 A Crim R 219; R v Lenard (1992) 57 SASR 164

2 R v Bowman (No 2) (1987) 87 FLR 472 at 477

3 Molina v Zaknich [2001] WASCA 337; 24 WAR 562 at [101].

4 Ibid [102]-[103].

5 [2004] HCA 30; (2004) 218 CLR 493; see also M v Shire of Kalamunda [2019] WASC 340; 279 A Crim R 373 at [101].

6 Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 at [10].

7 Noble v South Australian Police (1994) 70 A Crim R 560 at 568.

8 Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 at [80].