Claim of Right (ACT)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 10 April 2026.

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.

In Australian criminal law, property offences can carry serious penalties, making it crucial to understand all available defences. The claim of right defence provides protection for individuals who genuinely believed they had a lawful entitlement to property, even if their belief was mistaken. This defence reflects the principle that criminal liability should require not just the physical act (actus reus) but also the mental element (mens rea) of wrongdoing.

Legislation on claim of right

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

Section 38 specifically states that a person is not criminally responsible for an offence that has a physical element involving property if the person believes the property belongs to the person or to another person on whose behalf the person is acting. This statutory provision establishes the framework for determining when the defence applies and sets out the requirements that must be met.

Related Legislative Provisions

While section 38 is the primary provision, the defence of claim of right also interacts with other sections of the Criminal Code 2002 (ACT), particularly those dealing with theft under Chapter 10. The defence must be read in conjunction with the elements of specific property offences to understand its full application.

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. The 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.

Honest Belief Requirement

The cornerstone of this defence is the requirement for an honest belief. The belief does not need to be reasonable or correct, but it must be genuinely held by the accused at the time of the alleged offence. Courts will examine the circumstances surrounding the incident to determine whether the belief was truly honest.

Legal vs Moral Rights

A crucial distinction exists between legal and moral rights in claim of right defences. While someone might feel morally entitled to property, this is insufficient for the defence. The belief must be grounded in what the accused genuinely thought was a legal entitlement, such as ownership, a right to recover a debt, or authority to act on behalf of the true owner.

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.

Evidential Requirements

To raise the defence, the accused must present some evidence supporting their claim of honest belief. This might include testimony about their understanding of their rights, documentary evidence of ownership or agreements, or witness testimony about statements made at the time of the incident.

Types of property offences where claim of right applies

The claim of right defence is available for various property offences under ACT criminal law. Understanding which offences this defence can apply to is essential for both legal practitioners and defendants facing charges.

Theft Offences

Theft is the most common charge where claim of right is raised. Under the Criminal Code 2002 (ACT), theft requires the dishonest appropriation of property belonging to another. If an accused person genuinely believed they had a right to the property, the dishonesty element cannot be established.

Burglary and Aggravated Burglary

Where burglary charges involve theft as an underlying offence, claim of right may provide a defence to the theft component, potentially reducing the severity of charges.

Receiving Stolen Goods

This defence may apply when someone receives property they genuinely believed they were entitled to, even if the property was actually stolen by someone else.

Limitations and exceptions to the defence

While claim of right can be a powerful defence, it has important limitations that must be understood when considering its application.

Property Must Be Identifiable

The defence typically applies to specific property or equivalent value, not to vague or general claims. The accused must have believed they had a right to the particular property taken or property of equivalent value.

Cannot Justify Violence

Claim of right does not excuse the use of violence or threats to recover property. While it may provide a defence to theft or robbery charges, separate assault charges may still proceed.

Time Limitations

The belief must exist at the time of taking the property. A belief formed after the fact cannot support the defence.

Examples of the defence of claim of right

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

Stealing

Person A leaves 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.

Robbery

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.

Retrieving Personal Items

Person A enters their former partner's residence and takes clothing and personal items after a relationship breakdown. When charged with burglary, Person A claims they honestly believed they had a right to retrieve their belongings, even though the relationship had ended acrimoniously.

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.

Frequently Asked Questions

Does my belief need to be reasonable for the claim of right defence to succeed?

No, your belief does not need to be reasonable, but it must be honest and genuinely held. Even if a court finds your belief was mistaken or unreasonable, the defence can still succeed if the belief was sincere. However, the reasonableness of the belief may be considered by the court when determining whether it was genuinely held.

Can I use claim of right if I took more valuable items than what I was owed?

The defence may still apply if you honestly believed you were entitled to property of equivalent value to what you were owed. However, taking significantly more valuable items than the debt owed may undermine the genuineness of your belief and make the defence harder to establish.

Will claim of right protect me from all charges if I used force to recover my property?

No, claim of right only provides a defence to property offences, not to charges involving violence or threats. While you may avoid conviction for theft