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Claim of Right

Claim of right is a defence available to offences which contain the elements of larceny – including larceny itself, larceny as a clerk or servant, break and enter, robbery and other property offences.

It is essentially where you took property because you genuinely believed you were legally entitled to it.

The authorities relating to claim of right were reviewed in the case of R v Fuge (2001) 123 A Crim R 310 at 314–315, which outlined the following principles:

  1. The claim of right must involve a belief as to the right to the property or money in the hands of another.
  2. The claim must be genuinely 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.
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