LEARN ABOUT OTHER DEFENCES
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HONEST CLAIM OF RIGHT
s22(2) Criminal Code 1899 provides a person is not criminally responsible, for an offence relating to property, if what he or she did with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.
How the defence works.
Although described as a defence, the onus is on the prosecution to prove beyond reasonable doubt that a person did not exercise a claim of right.
In order to overcome a Claim of Right defence the prosecution must disprove that:
1. A person honestly believed they were entitled to deal with the property.
The focus is on what the person believed, what lawyers call a subjective test.
The defence applies even if the belief is wrong, the belief is unreasonable, or the entitlement is not recognized at law. However, these matters might be relevant to an assessment of honesty, for example the less reasonable a belief the less likely it is honestly held.
2. There was no intention to defraud. To defraud means to act dishonestly. This is just another way of saying the belief must be honestly held.
This part of the defence is important in Fraud cases as discussed below.
When the defence applies.
A Claim of Right defence applies to any criminal offence relating to property, for example Stealing, Fraud or Willful Damage. The defence applies to criminal offences with a combination of elements including an offence relating to property. Examples include Robbery (stealing with violence), Extortion (demanding property with menaces) and Break, Enter and Steal.
Claim or right and fraud.
It is important to determine whether a Claim of Right defence is available when considering a case of Fraud. If a Claim of Right defence applies, it is much harder for the prosecution to prove an offence of Fraud. This is because of what is required to prove dishonesty beyond reasonable doubt.
To prove an offence of Fraud the prosecution does not have to prove a person actually had a dishonest mindset or intention. The prosecution must only prove that a reasonable person would consider the conduct dishonest. This means the Magistrate or jury decide whether there is dishonesty.
The situation is different if a Claim of Right defence is raised on the evidence. The prosecution must then prove beyond reasonable doubt that the defendant had an actual intention to defraud. This may be much harder to prove.