Claim of Right: Defence to Theft and Similar Associated Offences
A claim of right applies when a person holds a genuine belief that they have a legal right over property that they have appropriated.
- It can be used as a defence if you have an honestly assumed belief about the ownership or entitlement to the money or property.
- It must be a legal right to the property, not just a moral right.
- If you raise this defence, it is up to you to establish the evidentiary burden regarding your honest belief in your legal right to the property.
The defence is available to any person who takes money or property, either on their own behalf or on behalf of another, if they believe themselves or another person has a legitimate claim of right to the money or property in question. It does not matter that you did not believe you were entitled to take it in the manner that you did.
A claim of right can be used to defend any criminal offences relating to property, such as theft, robbery, fraud, obtaining property or financial advantage by deception, burglary, and destruction or damage to property.
Claim of right in the eyes of the law
Section 72(1) of the Crimes Act 1958 (Vic) states that a person steals if that person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Dishonesty means that the accused acted without any claim of legal right see R v Salvo ); R v Bonollo  and R v Brow .
Section 73(2)(a) of the Crimes Act 1958 goes on to confirm that a person’s appropriation of property belonging to another is not to be regarded as dishonest if:
- the property was appropriated in the belief that s/he has “in law” the right to deprive the other of it, on behalf of himself or of a third person; or
- if s/he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
- the owner could not be discovered by taking reasonable steps (applicable where a person finds property or receives property by mistake and the finder or receiver genuinely believes that the owner cannot be identified or located as in R v MacDonald (1983).
In s 73(2) of the Crimes Act 1958 each form of “honesty” relies upon the accused having held a particular belief. The belief to the claim does not have to be reasonable, but reasonableness may be a relevant factor of a jury in determining if it was in fact held and how plausible the assertion is as in R v Lawrence . This belief is determined by a subjective test. A subjective test is a test of the culpability of a person’s conduct based on what the person actually believed or knew at the time of alleged offending.
How far does claim of right extend?
The claim of right must extend to all of the property taken, not just to part of it. If it does not extend to the entirety of the item/s; that is the accused believes they have a partial right to ownership, claim of right cannot be applied. It does not matter if the accused’s belief was based on a mistake of fact or a mistake of law. If the accused genuinely believed s/he had a legal claim of right, s/he will not have acted dishonestly (R v Lopatta (1983)) therefore s/he lacks the guilty mind, a vital element to a theft related offence. Further, the accused only need have believed s/he had a legal right to the property. S/he does not need to have believed that s/he had the right to use the measures s/he used to take the property. Even if the accused used violent measures to take the property, s/he should not be convicted of theft if s/he genuinely believed s/he had a right to the property. However, s/he may be convicted of an offence relating to the violence used to obtain the property (R v Bedford (2007); R v Salvo ).
In relation to the charge of Child Stealing, the defence is legislated to protect legitimate guardians.
Section 63 of the Crimes Act 1958 refers to child stealing offences. It also provides a defence to a child stealing charge in that the mother, the father of an illegitimate child, or a person who has claimed a right to the possession of a child cannot be found guilty of the offence of child stealing.
No person who has claimed any right to the possession of such child, or is the mother or has claimed to be the father of an illegitimate child, shall be liable to be prosecuted under this or the next succeeding subsection on account of the getting possession of such child or taking such child out of the possession of any person having the lawful care or charge thereof.
Defending Claim of Right
Once the claim is raised in evidence, the prosecution must refute the defence of claim of right beyond reasonable doubt. The accused must show that they held an honest belief at the time of the offence that they did not act dishonestly. The defence has an evidentiary burden to prove this belief. The prosecutions must disprove the claim, they must prove the accused did act deceitfully. Claim of right is a complete defence to theft because the accused lacks mens rea for a theft related offence.