6 / 10 / 2022

The Defence of 'Claim of Right'

Claim of right is a legal defence to offences that involve the taking of property. In the broadest terms, claim of right acts as a defence in circumstances where a person takes property in a way that would normally amount to an offence, but at the time they honestly believed they had a proprietary or possessory (i.e. legal) right to the property, even if their belief is mistaken.

The fundamental principle behind claim of right is that a person should not be found guilty of an offence that involves taking property in circumstances where they honestly believed they had a legal right to it.  Offences which have an element relating to the taking of property include theft, robbery and aggravated robbery.

Claim of Right in NSW

In NSW, claim of right is a common law defence, and  the leading case on it is the NSW Court of Criminal Appeal decision R v Fuge [2001] NSWCCA 208 which can be found here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCCA/2001/208.html.

In that decision, the court clarified a number of things that a defendant will need to raise for a claim of right to be successful:

  1. The claim of right must be one that involves a belief as to the right to the property or money in the hands of another.
  2. The claim must be genuinely, that is, honestly held — whether it was well founded in fact or law or not.
  3. While the belief does not have to be reasonable, a colourable pretence is insufficient (that is, you must actually believe you have a legal right to a property, not just a belief that you might have a right).
  4. The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
  5. 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 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 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 them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.
  7. The claim of right must 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.
  8. 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. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled or procured those acts.
  9. 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.

As can be seen, in NSW claim of right can be raised as a defence even for more serious offences such as robbery and aggravated robbery where illegal force was used. This is because claim of right relates to a belief held that the property was legally theirs, rather than a belief that the use of force was legal.


Claim of Right in the ACT

Claim of right operates slightly differently in the ACT. The defence has been legislated in section 38 Criminal Code 2022 (ACT) which reads:

  • 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.

Unlike in NSW, section 38(3) of the Criminal Code 2002 (ACT) provides that claim of right does not extend to offences that involve the use of force against a person. It cannot be relied upon as a defence where you have been charged with robbery or aggravated robbery.

The meaning of section 38 and the application of claim of right were discussed in the ACT Court of Appeal case R v Booth [2018] ACTCA 8 in which the Court held that section 38 meant that claim of right applied to theft, but not to robbery or aggravated robbery. It also held that claim of right could not operate as a defence in the ACT to burglary or aggravated burglary because and ‘intent to commit theft’ is not a fault element ‘relating to a physical offence’.

Jack Johnson, Lawyer