9.5 Claim of right

Rearrangement of the text of 9.5(1), which occurred between the initial   and final drafts of the Code, has created a problem of interpretation at the outset.²³⁶ The provision is meant to bar criminal responsibility when a mistaken belief about a proprietary or possessory right is inconsistent with an imputation of fault. In its present form, however, the provision states that claim of right bars criminal responsibility if the existence of the right, which the defendant wrongly believed to exist, would be inconsistent with the imputation of fault. This can only be taken as an ellipsis - which was meant to express the idea that a mistaken belief in the existence of a proprietary or possessory right can negate a fault element of the offence. There is no ambiguity here, for there is no plausible alternative meaning which the provision could bear.

Mistake or ignorance, whether of law or fact, can provide grounds for a denial of fault when the defendant is charged with an offence of appropriating or damaging property “belonging to another”. If the defendant is unaware of the other’s right to the property, as a consequence of mistake or ignorance, fault elements or knowledge or recklessness with respect to the victim’s rights to the property cannot be established. That conclusion follows from the provisions of Part 2.2 – The elements of an offence. The provisions on mistake or ignorance of fact or law and claim of right in Part 2.3 – Circumstances in which there is no criminal responsibility, provide a partial expression of the fundamental principles of liability in Part 2.2. It is a partial rather than complete expression because there will be circumstances in which fault cannot be proved though none of the provisions in Part 2.3 Circumstances in which there is no criminal responsibility) has any application.

Consider the following restrictions on the scope of the Part 2.3 provisions on mistake or ignorance when fault is in issue:

• Section 9.1 has no application to ignorance or mistake on a matter of law.
• Section 9.3(2)(b) only applies to mistakes or ignorance respecting Commonwealth statute law: In practice, unwitting appropriation or damage to property belonging to another is more likely to result from mistake or ignorance relating to common law.
• Section 9.5(1) only applies to mistaken beliefs about a proprietary or possessory right: It has no application in circumstances where an unwitting appropriation or damage results from ignorance rather than mistake.²³⁷ Moreover the claim of right provision has no application to offences “relating to the use of force against a person”.

The potential effects of mistake or ignorance on liability depend on the definition of the particular offence in question.²³⁸ Taken singly or in combination, the provisions of Part 2.3 do not exhaust the circumstances in which failure to appreciate the nature or extent of the property rights of another may bar proof  of fault. The paragraph which follows, on offences which require proof of dishonesty, outlines some of the ways in which mistake or ignorance relating to proprietary or possessory rights can defeat an allegation of fault.

Dishonesty is defined in Ch7 of the Code: s130.3 Dishonesty:

For the purposes of this Chapter, dishonest means:

1. (a) dishonest according to the standards of ordinary people; and
2. (b) known by the defendant to be dishonest according to the standards of ordinary people.

The definition does not appear in the UK Theft Act 1968, which provided the model for the Australian codification of offences of dishonesty. Instead, it is a statutory redaction of the prevailing English common law criteria for dishonesty, commonly described as the “Feely/Ghosh test,” in commemoration of the two cases from which it was derived.²³⁹ The definition has excited continuing controversy in the United Kingdom and in Australia, where the High Court declined to accept its application in the offence of conspiracy to defraud.²⁴⁰ That controversy will not be canvassed here, since the Code has declared its allegiance to the Feely/Ghosh test.²⁴¹ It is apparent that there are three quite distinct ways in which a defendant might claim that a mistake about proprietary or possessory rights barred criminal responsibility:

• When the defendant exercises a mistaken claim of right to the property in question: If the defendant takes or obtains property in pursuit of a mistaken claim to ownership, the prosecution may be unable to prove fault with respect to the requirement that the property was owned by another.²⁴²
• When the conduct of the defendant does not violate the ordinary person’s standards of honesty and dishonesty: A person who believes, rightly or wrongly, that they have a proprietary or possessory right against another person may take other property in satisfaction of that right. Though the taking was without consent, it is possible in such a case that a jury or court might conclude that the taking is not dishonest by the standards of ordinary people. It might be taken to fall within the boundaries of the ordinary person’s tolerance for self help remedies.
• When the defendant is unaware that their conduct does violate ordinary standards of honesty and dishonesty: Since dishonesty requires proof that the defendant knew their conduct to violate ordinary standards, it is possible that a misguided belief in the right to pursue a proprietary or possessory right might blind a defendant to the fact that their conduct violated ordinary standards.

In none of these instances is reliance on claim of right strictly necessary to support the defendant’s denial of guilt. The defendant, who does not seek to excuse an offence, instead denies that any offence occurred. The first is a straightforward denial of fault; the second a denial of a circumstantial element of the offence and the third is another denial of fault.

Belief in the existence of a proprietary or possessory right is no answer to an allegation of dishonesty unless that belief is inconsistent with the imputation of fault. It is quite possible for a person to take action in pursuit of a claim of right in circumstances where they know very well that ordinary people would consider their action to be dishonest. Beliefs in legal entitlement, whether true or false, can provide a powerful incentive to indulge in oppression and sharp practice. In the Code offences of dishonesty, this potential for conflict between the defendant’s claim of right and the statutory formulation of the Feely/Ghosh test is resolved in favour of the ordinary person’s standard of honesty.

It is possible, in other words, for a person to commit an offence of dishonesty in circumstances where the conduct is motivated by a claim of right. That is a consequence of the fact that claim of right has no effect unless it negates a fault element - in this case, knowledge that the conduct is dishonest according to the standards of ordinary people. Since dishonesty is exhaustively defined, claim of right cannot extend or modify that definition in its application to particular offences. If the offender knows their conduct to be dishonest by those standards, the fact that they acted in pursuit of a claim of right is no answer to the charge. Instances will be highly unlikely to arise of course,   but it would be arrogant for lawyers to assume that conduct based on a well founded legal claim provides an irrefragable guarantee against an ordinary person’s condemnation of that conduct as dishonest.

The Code definition of dishonesty is in sharp contrast with the Victorian law of theft, where claim of right does form part of the definition of honesty. In Victoria, the Feely/Ghosh test, which never achieved statutory recognition, has been rejected by the Victorian courts.²⁴³

Section 9.5(2) permits a true claim of right defence, which goes beyond mere negation of fault elements, in offences which involve neither force nor violation of property rights. Since claim of right is a true defence in these circumstances, rather than a mere denial of a fault element, it can excuse even if liability is strict or absolute.²⁴⁴ The defence is available in the following circumstances:

• An offence which does not:
  1. i require proof of a physical element relating to property;²⁴⁵ or 
  2. ii “relat[e] to the use of force against a person”;
• The defendant’s conduct must arise “necessarily out of the exercise of the proprietary or possessory right that [the defendant] mistakenly believes to exist”.

Though the Chapter 2 claim of right defence in s9.5(2) bears some resemblance to claim of right in state and territorial laws, it is hedged with restrictions, some of which have no counterpart in those laws. Existing common law and decisions pursuant to the codified defence of claim of  right in s22 of the Griffith Code provide some indication of the potential applications of the Chapter 2 defence, but do not determine its effect. The restriction of the defence to offences which do not include a physical element which relates to property departs from Australian common law and the Griffith Code.²⁴⁶ So too does the requirement that the “offence aris[e] necessarily out of the exercise of the proprietary or possessory right”. At common law or under the Griffith Code, claim of right can excuse a creditor who deceives in order to obtain money owed by a recalcitrant debtor.²⁴⁷ Section 9.5(2) has no application in such a case, for the defendant does not purport to exercise a proprietary or possessory right. Even if that hurdle could be surmounted, the defence has no application unless the deceiver was mistaken about their proprietary or possessory rights. And, finally, the deception in such a case cannot be said to arise necessarily out of the exercise of any claim of right. Deception is a tactic one may choose in pursuit of one’s rights; however it is no way necessary to their exercise.

Speculation on potential applications of the Code defence suggests various possibilities, among them claims based on mistaken beliefs relating to rights, immunities or privileges arising from native title and associated cultural or spiritual rights.²⁴⁸

Since this is a defence, not a denial of any fault element which the prosecution is bound to prove, the defendant bears the evidential burden: 13.3 Evidential burden of proof – defence.

So far as defensive applications of claim of right are concerned, pursuant to s9.5(2), the exception requires no explanation. An offender who attacks another in the exercise of mistaken belief that the attack is necessary to the exercise of a proprietary or possessory right cannot resort to claim of right to defeat a charge of assault.²⁴⁹ However, such an offender can escape conviction for robbery. State and territorial law recognise claim of right as a defence to a charge of robbery or other offences of dishonesty involving force or threats of force. The same conclusion follows under the Code. The conclusion that there is no robbery in such a case is inescapable, though a majority in the New South Wales Court of Criminal Appeal decision in Fuge,²⁵⁰ on common law claim of right, recently expressed disapproval verging on outrage at the prospect.²⁵¹ Sections 132.2 Robbery and 132.3 Aggravated robbery both require proof that the offender was engaged in theft of property. Since theft requires proof of a dishonest appropriation of property by an offender who was aware that it might belong to another, reliance on a mistaken claim of right can provide grounds for a denial of fault: 9.5-C. If the prosecution cannot establish the fault elements of theft, the charge of robbery must fail. It should be noted that this conclusion does not follow from the existence of s9.5 Claim of right. The concluding provision can be taken to evince an intention to deny recourse to the section in any offence which includes a physical element involving the use of force.²⁵² But reliance on s9.5 is unnecessary to defeat the charge: the conclusion that a mistaken belief in a proprietary or possessory right might bar conviction for robbery is a simple consequence of the requirement that the prosecution first prove the elements of a theft.

232. See the commentary in MCC - Ch2: General Principles of Criminal Responsibility, 61, on “the ‘defence’ of claim of right”.

233. Ch7: The proper administration of Government, contains most of the offences of dishonesty ; see, in addition, Ch10: National infrastructure, in which dishonesty is a defining element in a range of prohibitions against fraud on postal or telecommunications services.

234. See Walden v Hensler (1987) 29 A Crim R 85, per Brennan J at 92, providing examples where claim of right negated “unlawfully and maliciously maiming and wounding” (four sheep); “unlawfully and wilfully” killing with “wilful and wanton intention” (one pigeon); “wilfully and maliciously, that is to say with a wicked mind” (obstructing a mine). Compare, however, G Williams, Textbook of Criminal Law (2ed 1983) 456-457

235. A related provision does occur in MCC - Ch6: Damage and computer offences, s4.1.12 Claim of right, but this is an autonomous defence which owes nothing to s9.5.

236. Compare the draft provision in MCC - Ch2: General Principles of Criminal Responsibility, s309 Claim of right.

237. In view of the careful Chapter 2 distinctions between “mistake” and “ignorance” in ss9.1, 9.2, 9.3, 9.4, it is clear that the restriction of 9.5 claim of right to cases involving mistake, rather than ignorance, was quite deliberate.

238. That conclusion follows from the division, fundamental to the structure of Chapter 2, between the issues of liability (Part 2.2 – The Elements Of An Offence) and criminal responsibility (Part 2.3 Circumstances In Which There Is No Criminal Responsibility). If the elements of offence cannot be established, pursuant to Part 2.2, the provisions dealing with responsibility in Part 2.3 have no application.

239. Feely [1973] 1 QB 530; Ghosh [1982] QB 1053.

240. The High Court decision in Peters (1998) 96 A Crim R 250 (see also Spies (2000) 113 A Crim R 448) provides the basis for the modern Australian debate. See CR Williams, “The Shifting Meaning of Dishonesty” (1999) 23 Crim LJ 275; A Steel, “The Appropriate Test for Dishonesty” (2000) 24 Crim LJ 46.

241. MCC - Ch3: Theft, Fraud, Bribery and Related Offences, Report 11-29

242. A mistaken claim to ownership by the defendant, however sincere, will not invariably defeat an allegation that the defendant knew the property to belong to another. Property can ”belong” to more than one person under the Code: see Ch7 – The Proper Administration Of Government, s130.2, When property belongs to another. It is quite possible for a person who owns property to steal that property from a person who has possession or control of the property.

243. Salvo [1980] VR 401; Peters (1998) 96 A Crim R 250. Compare Balnaves (2001) 117 A Crim R 85 in which the SA Court of Criminal Appeal followed Peters, ibid.

244. It has been suggested that s9.5(2) is subject to the same limitations as 9.5(1) and does nothing more than state the truism that mistaken pursuit of a claim of right is not an offence if the mistake “negated a fault element of the offence”. The brief commentary on the provision in MCC Chapter 2 – General Principles of Criminal Responsibility (1992) 61, may be taken to lend some support to that suggestion. There are at least two reasons for rejecting the suggestion: (a) s9.5(2) is not in terms limited to cases where mistake negates fault and; (b) it is difficult to see what point there could be in 9.5(2) unless it was intended to add something to the existing principle in 9.5(1). That said, it is not apparent why s9.5(2) should be restricted in its applications to offences which do not require proof of a “physical element relating to property” or to circumstances in which the defendant’s claim of right is mistaken.

245. The partial definition of property in Ch7 – The Proper Administration Of Government, s130.1, Defini- tions, provides limited guidance here.

246. In Pearce v Pascov [1968] WAR 66, 72, Virtue J suggested that the s22 Griffith Code defence of claim of right is limited to offences involving “deprivation of or interference with the proprietary or possessory rights of the true owner or person in possession.” That suggestion was rejected by a majority of the High Court in Walden v Hensler (1987) 29 A Crim R 85, per Deane J at 99; Toohey J at 113 and Gaudron J at 118, 120. Dawson J expressed no opinion on the issue. Only Brennan J at 94-98 accepted this restriction on the scope of the defence under the Griffith Code. He agreed that claim of right was not limited in this way at common law. Accord, D Brown, D Farrier, S Egger, L McNamara, Criminal Laws (3ed 2001)

247. Langham (1984) 12 A Crim R 391. See, in addition, Pollard [1962] QWN 13.

248. The Model Criminal Code Officers commentary on claim of right contains a tantalising reference to the fact that they considered these issues “in some detail”. The commentary provides no indication of their views: Chapter 2 – General Principles of Criminal Responsibility (1992) 61. See Walden v Hensler (1987) 29 A Crim R 85 and, for a recent exploration of the difficult issues involved, DPP Reference (No 1 of 1999) (1999) 105 A Crim R 489.

249. Note, however, that force employed to defend property may be excused under s10.4 Self defence.

250. [2001] NSWCCA 208.

251. Ibid, per Heydon J, “astonishing”; per Sully J an “absurdity” which requires ‘prompt and specific legislative correction”. Wood CJ, who reviewed the authorities on claim of right, did not join in these expressions of disapproval.

252. Note, in this connection, the difference between the formulation of the s9.5(3) exception in the Model Criminal Code provision, 309 Claim of right and its counterpart in Chapter 2 of the Criminal Code. MCC: “This section does not negate criminal responsibility for the use of force against a person”: Code: “This section does not negate criminal responsibility for an offence relating to the use of force against a person.” (Italics added).