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“Dishonestly and without claim of right” – Part 2

08/06/2011

In the first part of this commentary, we looked at one part of the mental element in the crime of theft in New Zealand:  the requirement that the accused person acted “dishonestly” in taking the thing.  This imposes on the prosecution the obligation to prove the absence of a particular belief in the accused’s mind – a belief that the owner had consented to the taking – at the time of the taking.

The second limb of this requisite mental state is the expression “claim of right”.  It used to be called “colour of right” but that’s not important right now.  More important is, what does it mean?  It means this –

claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

Theft is the taking of someone else’s property dishonestly and without a claim of right.  So again, the onus is on the prosecution to prove the absence of a belief.  In this case, a belief that the taking of the thing was lawful.  What does “lawful” mean?  Well, at this point the definitions dry up but we can take it that it means not “unlawful”, not “illegal”, not “contrary to law”, or suchlike.  I put it this way because a basic tenet of our law – as derived from the common law – is that every act is lawful which is not made unlawful by some Act of our Parliament.

Although I say that the onus falls on the prosecution to prove the absence of such a belief – that the taking was lawful – in the vast majority of run-of-the-mill theft cases, the proven facts will compel such a finding unless the accused puts up some defence that the belief was in fact held.  In this way, the onus effectively passes from the prosecution to the accused.

Take our shoplifting example from part 1.  You walk into a shop, grab some item, secrete it about your person and walk out without paying.  The court is going to find that you acted “without claim of right” without a shadow of a doubt.  No judge, or jury directed by a judge, will dwell more than momentarily on this ingredient unless you give them some reason to suppose that you did have a claim of right.  That is, that you believed that it was lawful – not unlawful – for you to take the item without paying.  You don’t have to prove that belief beyond a reasonable doubt – that standard is only for the prosecution.  You just have to raise such a “reasonable” doubt in the mind of the judge or jury.

But the average shoplifter is going to have a hard time doing that and, mostly, shoplifters won’t even bother.  They back themselves on not getting caught in the first place.

But what about the case of the found fiver in part 1?  Let’s imagine you were observed by some “honest bystander” to pick up the $5 note you spotted on the street, then to go into the nearest pub and plunk it down on the bar in exchange for a beer.  The witness calls the Police.  By which means you find yourself in court charged with theft of the note.  Could you plausibly assert that you had a “claim of right”?  That is, a belief that your actions in taking the note from the footpath and spending it on a beer were lawful?

The definition of “claim of right” gives you some leeway here.  You can be heard to assert such a belief even though it was based on a mistake of fact.  So, you could assert that when you spotted the $5 note on the footpath you immediately formed the belief that it was “lawful” for you to pick it up and use it as your own.  The fact that you were mistaken in that belief doesn’t matter.  What does matter is whether you held it (or, more precisely, whether the prosecution can prove you didn’t).

But we’ve already established in part 1 that you didn’t believe the owner of the note had consented to you treating the note as your own property.  That’s what made you act “dishonestly”.  So, in what other way could you have formed the belief that your action was lawful?

Perhaps, I hear you respond, you could have formed the belief – maybe already held the belief generally – that “finders keepers, losers weepers” is not just an old saying but actually reflects the law of New Zealand.  It doesn’t of course, but scroll back up for a moment and you’ll see that the definition of “claim of right” also allows for a belief to be based on a mistake of law.

So is this what gets you off the hook?  You believed that, if you found someone else’s $5 note on the street, the law says that you could treat it as your $5 note.  That is, your belief was based on a mistake of law but it was a belief nonetheless.  And as the Supreme Court put it so insightfully in Hayes v The Queen in 2008, “a belief is a belief”.

Alas, you’re not out of the woods (the metaphors are running wild at the minute).  The definition of “claim of right” only permits as exculpatory (blame-removing) a belief based on a mistake of law other than the enactment against which the offence is alleged to have been committed.  Well, in our scenario the alleged offence is theft.  The enactment creating the crime of theft is the Crimes Act 1961 – section 219 to be precise.  Take my word for it, the Crimes Act does not anywhere enshrine a principle of “finders keepers, losers weepers”.  Ergo, you can’t set up as a “claim of right” your mistaken belief that, as a matter of law, the finder of lost property is entitled to ownership of it.

Sadly, you’ve run up against another old saying – “ignorance of the law is no excuse”.  And this one is in the law – it’s in section 25 of the Crimes Act, in as many words.

So what’s left?  Nothing, really.  You can’t plausibly claim to have believed that the owner of the $5 – the person who lost it – consented to you having it.  So you acted “dishonestly” in picking up the note and keeping it as your own.  And your mistaken belief – that the law gave you the ownership when you found it – did not give you a “claim of right”.  That, in a nutshell, is that.

Is it really possible that the finder of a $5 note on the street, who picks it up and spends it, has committed theft?  Is that really the law of New Zealand?  The definitions of “dishonestly” and “claim of right” compel an affirmative answer.  Yes Virginia,  it is theft because there is nothing in the definitions of “dishonestly” and “claim of right” to say it isn’t.

Let me stress again a point made in part 1 of this commentary:  there is no room in these definitions for the operation of some “objective” standard – what “ordinary people” might think.  The law regarding the crime of theft can in this regard be said to be black and white.  We are told in concrete terms what are the relevant – the only relevant – beliefs if criminal liability for taking someone else’s property is to be avoided.  There is no moral judgment called or provided for.  There is no defence that our conduct may not have breached some “collective morality”.  The only way that consideration might operate would be in the decision – of the Police or other enforcement agency – whether or not to prosecute.  But such discretion is not a satisfactory proxy for the law itself.

In this, the law of theft can be praised – it is certain.  We all know where we stand.  But do we?  I used the “found fiver” scenario because it’s a common enough occurrence and because – I suggest – a great many of us would keep it as our own.  The prospect that we are thieves in so doing would be appalling to us.  And if that’s the case, what of a law that says we are?  Does it – the law – have a claim of right to do so?

It’s early days yet for these definitions of “dishonestly” and “claim of right”.  They’ve only been in the Crimes Act since 2003.  But one can’t help feeling uneasy …

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