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CLAIM OF RIGHT

If you are charged with larceny or an offence of stealing, but you genuinely believed you had a claim of right to the item, money or object that is the subject of the criminal charge, then you may be able to defend it. 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 claim of right, in good faith, to the money or property in question.

In order to raise the defence of a ‘claim of right’, your must raise evidence of the following elements:

  1. You held a a genuine, honest belief (regardless of whether it is well founded in fact or law);

  2. Regarding a legal entitlement (not simply a moral entitlement);

  3. To property or money in the hands of another.

It is for the prosecution to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury or judge (the tribunal of fact).

The leading case authority for this defence is R v Fuge [2001] NSWCCA 208, where the Court of Criminal Appeal summarised the principles of the defence of ‘claim of right’ as follows:

  1. The claim of right must be one that involves a belief as to the right (or entitlement) to property or money in the hands of another.

  2. The claim must be genuinely held, it not being to the point 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”.

  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 the 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, however, 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, since there can be no accessorial liability unless there has in fact been a foundational offence, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts.

 

If you have been charged with an offence of larceny, stealing or robbery and believe you might have the defence of ‘claim of right’ available to you, you should seek legal advice. If you wish to discuss your options in detail, please contact KF Lawyers for a free initial consultation.

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