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Claim of Right

If a person honestly believes that a they have a legal entitlement to a something then the defence of claim of right might be used.

Case law has held that, for an accused person to use the defence of ‘claim of right’ they must have had an honest belief that they hold proprietary or possessory rights to the item in question. If the accused hold an honest belief it does not matter so much if it is not held on reasonable grounds and that the means used to uphold the right was dishonest.

The claim must be one of legal right and must be recognised by the general law in force in the state. Traditional Aboriginal law is not recognised as sufficient.

A claim of right defence is available in all statutory offences where intent to defraud is an element. It is also available if the defendant is jointly charged with another because they assisted to obtain property that the other defendant has a claim of right over.

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