Is It Still Stealing If You Believe You Are Entitled To Take It?

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If you honestly believed that you were owed something, and you took it without the other person’s consent, are you guilty of stealing?

Not necessarily, according to current law.

The law says that person who is charged with an offence which involves theft – such as larceny or robbery – may be innocent if they genuinely believed that they were owed the money or goods.

This is called a ‘claim of right’ defence.

The defence has been around for a long time and is well-known to experienced criminal lawyers, but it surprised and raised some concern from a judge in one NSW Court of Appeal case.

In that case, the Justice wrote that he found the defence ‘bizarre’ and found it ‘astonishing’ that the law allows such conduct.

The defence means, for example, that an employee may in certain circumstances forcibly take cash, not exceeding wages owed, if there is a genuine belief that he or she is entitled to it.

In the case before the court, the defendant had been on trial for ‘accessory to robbery’ when his lawyer raised the defence.

She argued that the attempted robbery of Maitland Hungry Jacks was not a robbery at all, but that those involved were simply trying to recover their friend’s wages, who had worked at the fast-food restaurant before being dismissed for being late, and not subsequently paid what she was owed.

A ‘claim of right’ defence is potentially available in these circumstances.

This is because the ‘intention to steal’ is an essential ingredient in the offence.

When it comes to stealing there are six things that must be proved by the prosecution.

Each of those things must be proved beyond reasonable doubt.

The first three refer to the physical facts:

  1. The property belonged to someone else,
  2. It was taken and carried away, and
  3. It was taken without the consent of the owner.

The next three are about the necessary intent:

  1. The property was taken with the intention of permanently depriving the owner of it
  2. The accused had no claim of right, and
  3. The property was taken dishonestly

Ingredient 5 means that a person that has an honest and genuine claim of entitlement to the object taken cannot be found guilty.

This was the finding in the case of R v Fuge.

One young woman, Renee Julie Fuge had invited friends to her home.

One of them, ‘Ms B’, used to work at the Maitland Hungry Jacks and had been sacked for lateness.

As the night wore on, ‘Ms B’ suggested committing a robbery at the fast-food outlet.

Deciding to steal a car to commit the robbery, the friends donned bandanas and stockings to conceal their faces and took two knives.

They arrived at Hungry Jacks where three employees were working.

They demanded that one of the employees open the safe, but this was unsuccessful because the code had been changed.

They left, but it wasn’t long before they were apprehended by police.

Renee was charged with being an accessory to robbery.

She claimed that they had only intended to recover ‘Ms B’s’ unpaid wages.

So how did the case end?

Unfortunately for Renee, the defence didn’t work – not because the defence was not available, but because it did not apply to the facts of the particular case.

This is because the court found that there was no real, genuine belief that only ‘Ms B’s’ wages would be recovered.

This is despite the evidence of one witness that ‘Ms B’ had mentioned that Hungry Jacks owed her money and that this was the only way to get it back.

The others considered that comment to be a joke – which, the court found, undermined the argument that they were only taking property owed to ‘Ms B’.

In the leading judgment, Wood J concluded that if they had acted on a genuine belief that Hungry Jacks owed ‘Ms B’ money, and went there to take that sum of money – and no more – it would not have constituted a robbery because the claim of right defence would have applied.

The case is authority for the proposition that person will not be guilty of theft or robbery if they acted honestly, believing that they had a legal right, and not simply a moral entitlement, to the money or property.

Unlike some other defences, where a belief must be honest AND reasonable in order to constitute a defence (for example self-defence, or an honest and reasonable mistake), the only thing necessary here was that the belief be honest.

There was no requirement that the belief be reasonable, as long as it was completely genuine.

The defence may even apply to certain situations where an assault was occasioned during the robbery, or even where weapons were used.

The claim of right is not restricted to the specific property or banknotes – even taking an equivalent in value may be acceptable.

But importantly, the property or money must not equate to more than the amount that a person genuinely believes they are owed.

However, simply taking the law into your own hands, even if not an offence, is probably not your best course of action.

Even if you are ultimately found to be innocent, the stress and expenses will simply not be worth it.

It is best to explore other avenues for recovering your property, not resorting to your own devices.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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