The defence of claim of right, could be raised where a person holds an honest belief of legal entitlement. The belief does not need to be reasonable, however, the reasonableness of a belief may become a relevant factor when determining if it was in fact held.

What the law says

The legislation which deals with this is the Criminal Code Act 1995 at s 9.5 of the schedule. It provides as follows:

9.5 Claim of right

  • A person is not criminally responsible for an offence that has a physical element relating to property if:
    (a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
    (b) the existence of that 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 the proprietary or possessory right that he or she mistakenly believes to exist.
  • This section does not negate criminal responsibility for an offence relating to the use of force against a person.

Does the belief need to be reasonable?

In order to be successful in this defence, you would need to show that there was an honest belief held. It does not necessarily have to be a reasonable one. Reasonableness, or rather unreasonableness becomes a relevant consideration when determining if an honest belief was really held, and how plausible that assertion is (R v Lawrence [1997] 1 VR 459).

What some case law says about claim of right

There has been case law which has assisted in identifying some key issues when considering this defence. One such case is Macleod v The Queen (2003).

In summary, it provided that

  • Claim of right is not founded on ignorance of the criminal law, it is rather, a claim to an entitlement in or with respect to property. This belief of entitlement is what establishes the absence of mens rea (Walden v Hensler (1987).
  • The claim must be made honestly (R v Lawrence).
  • Where fraud has been committed to claim the said entitlement, this would be inconsistent with the principals of claim of right, as it would not have been made in good faith, and involves an element of criminality.

Who has to prove what

The accused who raises the defence of claim of right, carries the evidentiary burden. The accused has to show that there was an honest belief. The Crown on the other hand, carry the persuasive burden, in order to rebut the claim. Which means, that they in effect have to negative the defence raised. They attempt to prove that the accused did not have an honest belief.

There are of course limitations on the claim of right, for instance:

  • The claim must be for a legal right.
  • A moral right is insufficient.