believed that he had a legal right to do so, as a means of
protecting or securing his right to be paid the sum of $9,760-00
which he honestly believed he was owed by the company.
(j) He intended to keep the Toyota in
his possession until
he was paid the amount he honestly believed
was owing to him, and on 31 July 1986 he honestly believed that he
was legally
entitled to do this.
7. The accused is charged with the theft of the Toyota.
8. The question that I am asked, is whether in the
circumstances I have set
out and in the light of the agreed facts it is open to the accused to rely
upon the defence of a bona fide claim of right.
9. S. 30(1) and (2) of the
Code read as follows:-
"(1) Subject to sub-sections (2) and (3),
ignorance of the law does not afford an excuse unless
knowledge of
law by the offender is expressly declared to be an element of the
offence.
(2) A person is excused from
criminal responsibility for an act
or omission done or made with respect to or for an event caused to
property in the exercise
of an honest claim of right and without
intention to defraud."
10. These two sub-sections together with S. 32 Mistake of Fact,
while not in
precisely similar terms to Ss. 22 and 24 of the Queensland Criminal Code,
contain in my view no significant difference
from the Queensland sections.
One may therefore commence with the guidance of Dixon J. as he then was, in
Thomas v R [1937] HCA 83; (1937) 59 CLR 279 at 305-6, when he remarks that the appropriate
provisions of what were then the three Criminal Codes of Australia, Queensland
Ss.
22 and 24; Tasmania Ss. 12 and 14 and Western Australia Ss. 22 and 24,
being in the same terms, "state in my opinion the common law
with complete
accuracy."
11. Note, however, that Philp J. in Anderson v Nystrom(1941) QSR 56 at 69 to
70, while conceding that the
common law and Queensland law are very similar,
points out that section 22 is not as wide as the English common law and the
defence
of an honest claim of right under S. 22 is confined to property
whereas under the common law it may not have been so confined.
12.
This may have some relevance because the learned prosecutor for the Queen
submits that the accused had and could have had no claim
of right to the
property involved, namely the Toyota. That, he submits, had nothing to do
with the dispute between the accused and
the company. His claim, if he had
any, was to the Chevrolet truck. Had he taken that there would have been a
sufficient nexus between
the claim and the property taken, assuming of course
that he took the Chevrolet as a former owner intending to keep it as security
for the debts allegedly incurred by the company in respect of it, or even
perhaps to sell it to reimburse himself for those debts,
honestly believing
that he had a right to act in either of these ways.
13. Mr Karczewski for the Crown relies on Olsen v The Grain
Sorghum Marketing
Board (1962) QR 580, a decision of the Queensland Full Court. There the
appellants purchased grain sorghum and conveyed it from Queensland to New
South
Wales and then back to Queensland, acting upon legal advice that S. 92
of the Constitution protected them in those circumstances from being
successfully prosecuted for breaches of the Queensland statute prohibiting
purchase
of grain from persons other than the Grain Sorghum Marketing Board.
14. The advice was based on a decision of the State Supreme
Court
subsequently reversed by the High Court. The appellants therefore contended
that they had purchased the grain pursuant to
an honest claim of right relying
on the advice given. The Queensland Full Court held that the acts of the
appellants, for which
they were prosecuted, were not done with respect to any
"property" within the meaning of S. 22 of the Queensland Criminal Code.
Mansfield
C.J. put it this way at page 585:
"The offence charged in the instant case was that
of buying a commodity from a person
other than one permitted by
law to sell it and was not in my view an offence relating to
property within the meaning of the
section. The claim asserted by
the appellants was not a claim that they were entitled to buy the
particular property, the
subject of the claim, by reason of any
right in or to that property peculiar to themselves, but was in
effect a claim that
they could buy any sorghum from any person
because they honestly but wrongly believed that the provisions of
the Primary Producers
Organisations and Marketing Acts 1926 to
1957 did not apply to the transaction. This amounts to a
claim that because they
were ignorant of the law they were not
criminally responsible. I therefore think that the offence
charged was not one relating
to property and that the act done was
not done in the exercise of an honest claim of right within the
meaning of section 22
of the code. The appellant's claim is
therefore one which is covered by the first paragraph of that
section and is not excepted
from its operation by the second
paragraph.
Stable J. said at page 593 'Without going into the implications of
the words
'and without intention to defraud' in section 22 of the
code, which words must have considerable significance in the
construction
of that section, I repeat my clear view that this was
not an act done with respect to any property within the meaning of
section
22 of the Criminal Code'."
Hanger J. said at page 589:
"On the facts it is to be taken that the appellants
believed that
in buying grain they were doing nothing unlawful.
It being conceded that this belief was wrong, I should have
thought that
all that the appellants raised before the magistrate
was that they had made a mistake as to the law which in itself is
no defence
to any criminal prosecution. Section 22, after stating
that ignorance of the law is no excuse, does not proceed to say
that
ignorance of the law is an excuse in the case of an offence
relating to property for an act done with respect to property. It
refers to an act done in the exercise of an honest claim of right
and without intention to defraud. In Cooper v Phibbs (1867)
L.R.2
H.L. 149 at 170, Lord Westbury has some remarks which I think are
relevant: 'It is said 'Ignorantia juris non excusat';
but in that
maxim the word 'jus' is used in sense of denoting general law, the
ordinary law of the country. But when the word
'jus' is used in
the sense of denoting a private right that maxim has no
application'. It is this distinction that must be
kept in mind in
construing and applying section 22 of the code."
15. Mr Karczewski submits that similarly here the appropriation
of the Toyota
was not an act for which a claim of right could be made, but rather an act to
which S. 30(1) applies, being at most
an act based on ignorance of the law.
16. In my view, however, Olsen's case does not support this submission.
Indeed it goes some
way to supporting the opposite argument. Their Honours in
the passages I have quoted seem to me to be drawing a distinction between
acts
in breach of the law not based on any specific claim to any particular
property, but based on an erroneous view that there was a general right to
deal in certain property;
and acts based on positive and particular claims,
albeit erroneous, but personal to the actor and to specific property.
17. The
former are not acts "with respect to property" because they are based
on more generalised claims. The latter are truly "with respect
to property"
because the claim is narrowed down to the particular. Hence the comments of
Mansfield C.J. that the appellants did
not assert any right peculiar to
themselves, and the distinction emphasised by Hanger J. between general law
and private rights.
18. This distinction is again emphasised in Walden v Hensler (1986) 2 QR 490
where an Aboriginal was convicted of an offence against the Fauna Conversation
Act for shooting a protected bird without having any
licence or authority to
do so. His plea that it was his traditional right to do so was not regarded
as a claim of right within the
meaning of S. 22 of the Queensland Code. He
was making a generalised defence based on tradition, rather than a specific
claim to
that specific animal based on circumstances peculiar to the actor
himself. At page 496 Thomas J. says:
"It is immediately
obvious that this applicant did
not claim any particular property in the bird or that he had any
greater right to it than anybody
else. It was based upon a belief
that he, along with all Aboriginals, had the right to hunt it and
take it in the manner he
described. In short, there was no claim
to any individual personal right."
19. See also R v Walsh (1984) 2 QR 407 where the appellant, who was charged
with unlawfully killing three bullocks, raised what he maintained was an
honest claim of right
to protect his avocado trees which had been damaged by
straying cattle. In that case, Kneipp J. said:
"The argument for the
appellant, as I understand
it, was that the right which he was claiming was the right to
protect his property based on his
ownership of that property. In
my opinion that is not the sort of right to which the provision
refers. In my view, the provision
refers to a right relating to
the property to which the charge relates. A right, which if it
existed, would be - to adopt
language used by Mansfield C.J. in
Olsen's case - a right in or to that property which would be
peculiar to the person asserting
the right."
20. But the learned Crown Prosecutor relies on these cases in another way.
He submits that the analysis of Kneipp J.,
which is supported by and
adequately summarises the views of the judges in the cases previously cited,
is fatal to the accused's
defence under S. 30(2). For if the right claimed is
a right relating to the property to which the charge relates, or a right in
or
to that property which would be peculiar to the person asserting the right,
then the right which the accused here asserts is a
right to be paid in
relation to the chevrolet truck and not in relation to the Toyota, which is
here the property to which the charge
relates.
21. I do not accept so narrow a construction, nor do I consider that the
passages cited justify it. Although a claim of
right may arise with respect
to dealing with a particular chattel, (for example R v Wade (1869) 11 Cox CC
549) there is no reason why the claim cannot be honestly though mistakenly
made with respect to property, other than that which was first
the matter in
dispute. In this sense the only relevance of the dealings between the accused
and the company with respect to the
chevrolet truck is that in the mind of the
accused, if his version is to be accepted, that created a debt which he
believed he could
enforce by some form of seizure of another chattel as
security.
22. An act with respect to property in the exercise of an honest
claim of
right need not necessarily be an act in respect of the property concerning
which the alleged debt was incurred, any more
than a writ of execution need
relate only to the property, the purchase of which first created the debt. It
is the exercise of the
claim which occasions the act with respect to property;
and if specific property is then taken, the person taking it is claiming
a
right in respect of that property peculiar to him; but it is the claim which
is peculiar or special or particular to him, not necessarily
the property.
23. This can be illustrated by R v George (1890) NSWLR 373 where the accused
demanded from the prosecutor one pound which he had lent him the day before.
On the prosecutor saying that he had
not got the pound, the accused threatened
him and then seized his watch, saying that when he gave him the pound he would
give the
watch back. He was charged with robbery. It was held that the
proper question to leave to the jury was whether the accused took
the watch in
the honest belief that he was entitled to do so to secure repayment. Now, the
watch was obviously not property which
had any connection with the original
debt, but the taking became an act with respect to property and the right
claimed was a right
relating to the property to which the charge related. See
also R v Lopatta (1984) 35 SASR 101.
24. In R v Langham (1984) 36 SASR 48 at 51 King C.J., referring to the
defence of claim of right and commenting on R v Skivington (1967) 51 CAR 167
said, as to that case,
"I think that properly understood, it is authority
for the proposition that what is required is simply a genuine
belief
in the accused's legal entitlement to the property taken
and not necessarily to his right to take it, either in the
particular
way in which he has taken it or in any other way. I
think the older authorities referred to in Skivington confirm that
view."
25. It is, of course, well settled and the Crown concedes, that a claim of
right need only be honest and need not be reasonable.
See R v Nundah [1916] NSWStRp 77; (1916) 16
SR (NSW) 482; Clarkson v Aspinall (1950) QSR 79 at 89.
26. I am satisfied, therefore, that the accused here may adduce evidence
tending to establish a claim of right based on the
circumstances set out in
his Record of Interview.