What the Defence Is
The honest claim of right is a statutory defence available to people charged with property-related offences in Western Australia. It is set out in section 22 of the Criminal Code Act Compilation Act 1913 (WA) and provides a complete defence when it applies. A complete defence means the person is not criminally responsible — not merely that the sentence is reduced, but that no conviction is recorded at all.
The defence works by negating the element of dishonesty that sits at the heart of most property offences. If a person honestly believed they had a legal entitlement to the property they took, dealt with, or retained, the prosecution cannot establish the dishonest intent that the charge requires.
The Legislation
Section 22 of the Criminal Code Act Compilation Act 1913 (WA) states:
A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
This sits within Chapter V of the Code, which governs criminal responsibility. Although ignorance of the law is generally not a defence under the Code, section 22 carves out a specific and important exception for property offences where the accused held a genuine belief in their entitlement.
What the Defence Requires
1. An honest belief in a legal right to the property
The belief must be that the accused had a genuine legal entitlement to the property — not merely a moral or ethical claim. A person who thinks they deserve to be repaid a debt, or that property rightfully belongs to them, and acts on that belief, may be able to raise this defence. The belief must concern a legal right, such as ownership, possession, or a right to payment.
2. The belief need not be reasonable
This is an important distinction from other defences. The reasonableness of the belief is not a required element. Even an unfounded or legally incorrect belief can support the defence, provided it was genuinely held at the time of the act. However, the less reasonable the belief appears, the harder it becomes to convince a court or jury that it was truly honest. Courts and juries assess the reasonableness of a belief as evidence of whether it was genuinely held.
3. No intention to defraud
The accused must have acted without any intention to defraud. If the honest belief negates the intent to defraud, the defence succeeds. Conversely, if a person knew their claim was fraudulent — that is, they were not genuinely mistaken — the defence fails.
Which Offences It Applies To
The Western Australian Court of Appeal confirmed in Molina v Zaknich [2001] WASCA 337 that section 22 applies broadly to all offences relating to property — not merely those contained within the Criminal Code itself. It also applies to claims of right arising under other legislation or at common law. This means it can be relevant to charges including:
- Stealing (section 378 of the Criminal Code)
- Fraud
- Receiving stolen property
- Property damage offences
- Embezzlement
- Any charge where dishonesty in relation to property is an element
What the Defence Does Not Cover
The defence has important limits that courts have consistently enforced.
Violence and force. The claim of right defence does not justify the use of force, threats, or intimidation to recover property — even if the belief in entitlement was genuine. A person who uses weapons, threats or trespass to recover property they genuinely believe is theirs cannot rely on this defence. This principle was reinforced by the NSW Court of Criminal Appeal in R v Fuge (2001) 123 A Crim R 310, where the court held that a genuine belief in ownership cannot justify violent or coercive conduct in pursuit of that belief.
Taking more than believed owed. The defence is not available where a person takes more property or money than the amount they honestly believed they were entitled to. The defence is precisely bounded by the scope of the honest belief.
Moral claims without legal foundation. A belief based purely on moral entitlement — for example, that a person deserves something because of unfair treatment — will not satisfy the requirement that the belief concern a legal right to the property.
Fraud as a charged element. In fraud offences, the intention to defraud is itself an element of the charge. The WA Supreme Court has confirmed that where an honest claim of right negates the intent to defraud, the section 22 defence operates; but if no honest belief existed, there is no scope for it.
The Relationship with Mistake of Fact (s.24)
Section 22 must be read alongside section 24 of the Criminal Code, which provides a separate and distinct defence of honest and reasonable mistake of fact. The High Court in Ostrowski v Palmer emphasised that these two provisions operate together as part of the Code’s broader approach to criminal responsibility.
The key differences are:
- Section 22 requires an honest belief in a legal right to property, but does not require the belief to be reasonable.
- Section 24 requires both an honest and a reasonable belief about a state of facts, but applies more broadly than just property offences.
Where a person has acted under a mistake of fact — for example, genuinely believing someone else’s property was theirs based on a mistaken perception of the facts — both defences may potentially arise on the same facts. A criminal defence lawyer can assess which defence, or combination of defences, best fits the circumstances.
Burden of Proof
When a defendant raises an honest claim of right, the prosecution bears the burden of disproving it beyond reasonable doubt. Raising the defence requires the accused to place enough material before the court to give the defence an air of reality — this typically means pointing to evidence of the circumstances and the belief held at the time. The prosecution then must establish, beyond reasonable doubt, that no honest belief existed or that the accused intended to defraud.
Why Legal Advice Matters
The honest claim of right defence is highly fact-specific. Courts examine the circumstances of the alleged offending, what the accused knew and believed at the time, what evidence supports or undermines the claimed belief, and whether any element of fraud was present. Raising this defence without careful legal preparation risks the defence being rejected.
A solicitor experienced in Western Australian criminal law can assess whether the defence has a genuine basis on your facts, identify the evidence needed to support it, and present it effectively — whether in negotiations with the prosecution or at trial.