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The Legal Defence of Claim of Right in New South Wales

You are not guilty of an offence involving the elements of larceny if you genuinely believed at the time of your conduct that you were legally entitled to the whole of the property taken.

Your belief does not have to be a reasonable one, but a ‘colourable pretence’ will be insufficient.

The defence extends to offences that involve the taking of another’s property by way of trespass, threats and/or the use of force, including break and enter, robbery and armed with intent.

If you raise evidence of a claim of right, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the facts of the case.

You are entitled to an acquittal if the prosecution is unable to do this.

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