Over 50 years of combined experience

Success in Courts Australia-Wide

6 x Convenient Locations across Sydney and NSW

A claim of right is a genuine belief held by a person that they have a bona fide claim of right to certain money or property is a defence to any crime of which larceny is an element. The defence extends to any person who takes the property on behalf of another, or in collaboration with another, if they believe other person has a bona fide claim of right to the money or property in question.

An Accused person must call evidence to raise the defence of claim of right. However, once the Accused person discharges the evidentiary onus, the prosecution must then negate the defence of claim of right beyond a reasonable doubt.

The authorities relating to a claim of right were reviewed by the NSW Court of Criminal Appeal in R v Fuge (2001) 123 A Crim R 310 at 314-315. The principles are as follows:

  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.
  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, 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. 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.

Other Defences