The time has come to tighten the reach of honest claim of right in Australian criminal codes

Hemming, Andrew (2010) The time has come to tighten the reach of honest claim of right in Australian criminal codes. Newcastle Law Review, 11 (1). pp. 167-207. ISSN 1324-8758


Honest claim of right operates as an exception to the general rule that ignorance of the law does not afford an excuse. The defence (or more properly the excuse) is generally relevant to a situation where the defendant has 'stolen, damaged or destroyed property and the fault element is negated by the existence of an honest claim of right to do the prohibited act'. The excuse of honest claim of right, which is limited to property, finds expression in all the Criminal Codes in Australia. All of the relevant sections are comparatively short and rely on the common law to interpret the reach of the excuse (for example, a mistaken belief does not have to be reasonable provided it is genuinely held). This paper argues that, given Criminal Codes are intended to consolidate criminal law into one statute and should be construed according to their natural meaning, it is an appropriate drafting principle to provide as much clarification as possible within the relevant section as opposed to placing significant detail in the explanatory notes or second reading speeches.

In the case of honest claim of right, it is contended that such a drafting principle becomes more pressing when the leading High Court case, Walden v Hensler, had differently constituted majorities on such critical matters as the interpretation of property and the availability of the defence itself. Walden v Hensler also overruled the previous leading authority of Pearce v Paskov on the phrase 'an offence relating to property' holding s 22 of the Criminal Code (WA) should not be read down or narrowly construed.

Recent cases of honest claim of right such as Mueller v Vigilante6 and Wilkes v Johnsen7 have featured native title rights under s 211 of the Native Title Act,8 an Act that post dates Walden v Hensler, which allows specified classes of activity such as hunting or fishing for the purpose of satisfying personal, domestic or non-commercial needs and which overrides under s 109 of the Constitution any State law that completely protects a particular fish or fauna. In Yanner v Eaton,9 the High Court upheld the dismissal of a similar charge to Walden v Hensler in reliance on s 211 of the Native Title Act. In keeping with national concerns relating to endangered species10 which begs the question 'what about the country?', this paper also argues that s 211 should be amended to exclude any totally protected species under any Commonwealth, State or Territory law from the operation of s 211.

To illustrate the drafting principle being contended for, s 9.5 of the Criminal Code 1995 (Cth) is here reworded to reflect both a clearer and narrower reach of the excuse of honest claim of right. This could be achieved, for example, by placing a legal burden on the defence to prove the belief was reasonable. It is argued that not only will the reworded section provide a model section for the excuse of honest claim of right, but will also provide a template as to the manner in which sections of Criminal Codes could be drafted more explicitly and be less open to inconsistent interpretation.

Statistics for USQ ePrint 18451
Statistics for this ePrint Item
Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Faculty / Department / School: Historic - Faculty of Business - School of Law
Date Deposited: 25 Feb 2011 07:49
Last Modified: 26 Sep 2014 01:35
Uncontrolled Keywords: honest claim of right; ignorance
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
16 Studies in Human Society > 1602 Criminology > 160204 Criminological Theories
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940403 Criminal Justice

Actions (login required)

View Item Archive Repository Staff Only