What is the Legal Defence of Claim of Right?
In Victoria, claim of right may be a valid legal defence in criminal offences alleging appropriation of property. Such offences might include theft, robbery, burglary, fraud, destruction or damage to property and obtaining property or financial advantage by deception.
A claim of right applies when the accused holds an honest but mistaken belief that they have a legal right (i.e. ownership or entitlement) over the money or property that they have appropriated. However, it must be a legal right to the property, not just a moral right.
Regardless of whether the accused took the money or property for themselves or on behalf of another person, the claim of right defence is available if they honestly believe that they or the other person had a legitimate legal right to the property in question.
Successfully proving claim of right negates dishonesty. However, it does not negate criminal responsibility for offences relating to the use of force against others (e.g. assault).
Claim of Right in Victorian Criminal Law
Victorian common law dictates that a person acts “dishonestly” if they act without any claim of legal right (R v Salvo ; R v Bonollo  and R v Brow ).
To prove a charge of theft under the Crimes Act 1958 (Vic), the prosecution must demonstrate beyond a reasonable doubt that the accused “Dishonestly appropriated property belonging to another person with the intention of permanently depriving the other of it”.
However, s73(2)(a) of the Act goes on to state that the appropriation of property cannot be considered dishonest if the accused:
Therefore, in Victoria, claim of right can potentially be used as a defence to any stealing charge related to property or money. If any of the above circumstances can be proven by the defendant, the element of dishonesty will be negated.
Proving Claim of Right in Court
It is the responsibility of the defendant to raise the claim of right defence in evidence. That is, the defence must adduce or identify sufficient evidence which establishes that the accused held an honest belief at the time of committing the offence and did not act dishonestly. Once the defence has been raised, the prosecution carries the persuasive burden of refuting the claim of right beyond a reasonable doubt. That is, the prosecution must attempt to prove that the accused did not have an honest belief of legal right and acted dishonestly at the time of the offence.
The Court uses a subjective test to determine whether the accused in fact held an honest belief of legal right. The test is based on what the accused actually believed or knew at the time of committing the alleged offence. The belief itself does not necessarily have to be reasonable. However, the Court may consider whether it was reasonable and plausible for accused to hold that belief honestly.
If the accused wishes to invoke the claim of right defence, the claim must extend to all of the money or property that was appropriated. The claim cannot extend to only part of the money or property. As such, if the accused believes that they have a partial right to the property, the claim of right defence cannot be relied upon.
Further, the Court is not concerned whether or not the accused believed they had the right to use the methods they did in appropriating the property or money. The Court is only concerned with the accused’s honest belief that they had a legal right to the property. In cases that involve the accused using violence to appropriate the property, although claim of right offers a defence to stealing charges, it does not negate criminal responsibility for offences relating to the use of force against others (e.g. assault) (R v Salvo ).
Obtaining Legal Advice
Claim of right is a complex legal defence and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal experience and expertise. One of our criminal law specialists will assess whether claim of right or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.