Claim of Right (ACT)

The defence of claim of right is a legal defence that can be used when a person is charged with certain property offences – for example, theft. The defence is based on the claim that the accused had an honest belief that they had a legal right to the property that they are accused of stealing. This page outlines the defence of claim of right in the ACT.

Legislation on claim of right

The defence is contained in section 38 of the Criminal Code 2002.

What is required for the defence to succeed?

To establish a defence of honest claim of right, the accused must show that they genuinely believed that they had a legitimate claim to the property or money in question.

The defence can also apply if the accused acted on behalf of someone else who they believed had a legitimate claim to the property.

For a claim of right defence to be successful, the belief of the accused must be honestly held and based on a legal right to the property, not just a moral right. defence is not limited to the specific property or money in question but can also apply to property or money that is equivalent in value.

Burden of proof

The accused must adduce evidence that raises the defence . The prosecution must then prove beyond a reasonable doubt that the defence does not apply. This is known as a reverse onus.

This means that once the defence of claim of right has been raised, the prosecution is responsible for proving that it does not apply. The defence does not have to prove that the defence does apply.

Examples of the defence of claim of right

The following are example of how the defence could be relied on in response to a property charge in the ACT.


Person A leave a bar with Person B’s iPhone. Person A is charged with stealing the iPhone. Person A argues that they had a claim of right to the phone as they had, in fact, purchased the phone a year earlier. Person B had borrowed the phone from Person A and failed to give it back.  


Person A is charged with robbery after removing $100 in cash from Person B’s wallet, after punching Person B. Person A argues that they had an honest claim of right to the cash as Person B owed them $100 and had failed to pay the debt after numerous requests. In this example, it is likely that Person A would still be found guilty of assault, but not of the more serious offence of robbery, which requires a theft to have occurred.

Overall, the defence can be a valuable legal tool for defendants accused of property offences, as long as the belief in the claim is genuine and based on a legitimate legal right.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.


Michelle Makela

Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. 
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