Claim of Right

A claim of right defence can only arise in the case of offences that include elements of larceny. This can include offences such as larceny itself, breaking and entering, and other property offences.

To be successful the accused must prove that at the time they took property or possessions, they were under the genuine and honest belief that they had a lawful right to do so: R v Fuge (2001) 123 A Crim R 310 at 314–315. 

Even if this was done without the consent of the person in lawful possession, a claim of right defence can be successful based on a held belief of legal right by the accused. However, a moral right is not justified when raising the defence of claim of right.

This can also be successfully argued if the accused was mistaken in their belief of lawful possession. If in fact, it was not their legal right to the possession or property, the accused can still utilise this defence by proving that they held the genuine belief that they had a legal right to what they took. This suggests that the accused did not act dishonestly and therefore cannot be convicted of a crime.

The outcome of a successful claim of right argument is acquittal.