Damaging or Destroying Property Offences

The law states that:

• A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
• A person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary:
  • to defend himself or herself or another person, or
  • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
  • to protect property from unlawful taking, destruction, damage or interference, or
  • to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
    
    

and the conduct is a reasonable response in the circumstances as he or she perceives them.

Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.

Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.

Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.

For necessity to be established, the following must exist at the time of the commission of the offence:

• You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect;
• You honestly and reasonably believed that you were in a situation of immediate peril; and
• Your actions were reasonable and proportionate to the situation.

As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.

Claim of right is a legal defence for offences involving the acquisition of property. In its broadest sense, it operates as a defence when someone appropriates property in a manner that would usually constitute an offense. However, it applies when, at that moment, the individual genuinely believed they had a legitimate proprietary or possessory (i.e. legal) right to the property, even if that belief turns out to be mistaken.

In the case of R v Fuge, the court clarified what a defendant must raise in order to be successful in their claim of right defence:

1. The claim of right must be one that involves a belief as to the right to the property or money in the hands of another.
2. The claim must be genuinely, that is, honestly held — whether it was well founded in fact or law or not.
3. While the belief does not have to be reasonable, a colourable pretence is insufficient (that is, you must actually believe you have a legal right to a property, not just a belief that you might have a right).
4. The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
5. The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms — the relevant issue being whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
6. The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.
7. The claim of right must extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.
8. In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled or procured those acts.
9. It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.