Taking something that you think is yours may not be stealing

Is it stealing to take back something that was once yours?  In our latest article in The District Reporter we discuss a little known principle of ‘claim of right’ which can in some circumstances can offer a defence to the crime of larceny.
Our firm was recently involved in a criminal case involving the principle of ‘claim of right’. This has been defined as a genuine belief held by a person that they have a bona fide claim of right to certain money or property, and is a defence to any crime of which larceny is an element. As much of the law in NSW is based on the common law, inherited from England and subsequently modified, this is a principle that has developed over the centuries in English law.
There was a case in Britain in the 1860s when a farmer, who had complained about a neighbour allowing his pigeons to fly on the farmer’s land and picking out sown seeds, fired a gun at the pigeons and killed one. The court held that the farmer, who was protecting his crops and thought he was doing a lawful act by firing the gun, could not be said to have unlawfully killed the bird and he was acquitted.
There was a more recent case in NSW in the 1990s when a group of people went to a Hungry Jacks restaurant in the Hunter Valley after one of their friends had told them that she had been sacked and not paid outstanding holiday entitlements. They put on bandannas and stockings, stole a car and approached staff with what was said to be a toy gun at the safe. When staff members were unable to remember the combination the husband of one of the robbers fled the scene.
They were apprehended a short time later and subsequently claimed that the offence of robbery had not been committed as the intent was simply to recover what was owing. The woman stated that she was merely assisting a colleague to recover wages owed to her by the store. The court expressed its reservations that the defence was being used in the context of an armed robbery, but in any case found that, had they been successful in having the safe opened, the money recovered from the safe would have far exceeded the allegedly underpaid wages and therefore, the defendant was convicted.
The case in which we were involved was a case of a client who had provided an artwork to a charity shop. Her evidence was that she had made it clear to the charity shop that the artwork, which was of great sentimental value to her, was only to be used for the enjoyment of volunteers at their shop in the meal room and was not to be placed for sale.
She subsequently attended the shop and found the painting for sale for a sum of money. She was upset and removed the painting from the shop back to her home, despite the objections of the shop manager.
The client was charged with larceny of the artwork. We were able to successfully satisfy the court that she had a ‘claim of right’ against that particular item, and she was acquitted of the charge.
Criminal law has many unusual and varied features. If you are facing criminal matters, you should consider contacting either Geoff Lloyd at our Camden office, or Lance Watson in the Picton office for experienced and expert advice in this area.