Yeah, this is going nowhere, but I gotta say; It's not just about the person believing they are entilted to the property, but believing they are entilted to commit the act of taking it.
Did she believe that she had a right to the shoes? Yes
Did she believe that she had a right to circumvent the refund process? No
The fact that she asked one staff member for a refund prior to taking the shoes, to me, says that she fully aware of the correct processes to take. She did not have an honest belief that she could take them and walk out.
If you go to http://www.courts.qld.gov.au/Benchbook/SD-73-ClaimOfRight.pdf
It gives a bit of a fuller explanation on the section for qld. "the defendant must have honestly believed himself to be entitled to do what he did".
... It's not just about the person believing they are entilted to the property, but believing they are entilted to commit the act of taking it.
Not quite. "... but believing they are [legally] entitled to commit the act of taking it."
If the defendant simply didn't like the exchange policy, the defence will not be available.
On the other hand, if the defendant believed that the store had an obligation under consumer laws to provide an exchange or refund but they refused, but she exchanged the shoes anyway, the defence will apply.
I agree she was "fully aware of the correct processes to take" with respect to store policy. So she decided to take matters into her own hands and assert a legal right she believed she had.
It really comes down to what was in the mind of the defendant at the time. Googler might be able to elaborate on his.
Yes I see what your saying. I must admit that after reading about a few cases where this defence was used, it has really oppened my eyes to how often this could apply. I that this has a reasonable chance of going either way.
Also, the original post didnt say anything about what she had said to the store detective or the police. If the prosecution are able to present evidence where she said 'yeah i know i had no right to take them, but i was just so upset' or so, then it's probably a lock.
If the prosecution are able to present evidence where she said 'yeah i know i had no right to take them, but i was just so upset' or so, then it's probably a lock.
You are absolutely right. That evidence will be critical in determining whether she had the requisite belief needed to raise the defence.
Aside from the defence, what if the store could get a refund from the manufacturer because the shoes were found to be faulty or that she did in fact have a right of exchange or refund but she didn't know it. The fact that she exchanged the shoes for a pair of a lower value, how has the store made a loss? In such a case could a charge of theft be sustained? Sorry I'm sounding a bid like a law lecturer here.
Thanks Notguilty and Shoeverine. Seems that I may have a good defence there.
To your question shoeverine, when I was questioned by the cops:
I mentioned that I did not believe the shoplift charge was fair and that all I wanted was a right to a fair exchange of goods that I purchased from the same store.
I said that I admit that I may not have gone about it the right way, my judgement was blurred as I was upset I was not allowed to a fair exchange. At at the time I exchanged the shoes believed that I was entitled to an exchange.
To that the cop asked me what should you then have done instead. I replied: I should have thrown the shoes in the bin, copped the loss of the purchase and bought a new pair of shoes that fit.
They kept insisting that I had shoplifted, and I kept insisting that, I admit I have not done the right thing, but I wanted a fair exchange to goods that were not usable.
Notguilty, I will be going for a second opinion to legal aid this monday and am looking for a good solicitor to represent me.
If I claim the 'claim of right' I must plead not guilty, correct?. In that case, will the case get differed to another date or will a decision be reached then and there?
I just want this to be over and done with plus will not be able to sustain legal fees if the legal action goes longer.
If I claim the 'claim of right' I must plead not guilty, correct?. In that case, will the case get differed to another date or will a decision be reached then and there?
I just want this to be over and done with plus will not be able to sustain legal fees if the legal action goes longer.
Yes, you plead not guilty and then your case will be set down for trial at a later date, often several months later. You have the option of a trial by Magistrate alone or a trial by jury. You can plead not guilty without a solicitor to save costs. It's during the plead of not guilty and trial that your lawyer can make representations to the DPP for a nolle prosequi, that is, a withdrawal of charges.
In order to have a chance of getting the result you want some expenditure will be required.
Don't overlook that fact that the store may not have made a loss, further evidence on this will be needed.
This is critical, Googler, for the claim of right defence to operate in your favour you must have believed that you had a LEGAL right of exchange not just a moral or fair right of exchange.
As the offence I have been charged with is a statutory offence because it is created by the Qld Criminal Code, is there a chance if I plead guilty that I will get a criminal conviction?
This is a $43.95 item. Isnt this going a little beyond the pale.
Shouldnt this person simply explain his actions to the mag and simply put his line of defence to the magistrate and have the matter dealt with.
This matter will cost this person several thousand $ to be represented for what is essentially a totally minor offence.
Even if he pleaded 100% guilty and didnt use the right of offset defence which I agree with not guilty he should, he wouldnt he get more than a fine and probably no criminal conviction anyway, fist offence?
Certainly its a risk Id be prepared to take for the cost.
CRIMINAL LAW IS NOT MY AREA.
Edited by rambler1 - 09/November/2009 at 14:35
Luke 11 46: Woe unto you also, ye lawyers! For you load men with burdens that are difficult to carry, and you yourselves won't even lift one finger to help carry those burdens.
Btw, I went to Leagal Aid today and was told that I will have to wait for nearly 3 hours. I left as I had to return to work.
I have a telephone appointment with them tomorrow and will update as soon as I speak with someone.
I agree that most of this talk regarding claim of right and lawyers etc, is theoretical. We still have no idea of the evidence and perhpas this girl would be better off pleading guilty and leaving it at that. But it's fun to consider the possibilites...
On a related note, Googler; you were charged with stealing or with unauthorised dealing shop goods? Because you mentioned criminal code but you also mentioned a shoplift charge...
The exact charge shoeverine is 'shop steal'. But you're right, I'm better off pleading guilty and mention that I will loose my job and be unemployed if a criminal conviction gets recorded.
And then - hope for the best.
A lively discussion indeed. I am left wondering who did the stealing here though, because over the last ten years, I have had to return so much inferior rubbish it is just not funny. Shoes that crack and shrink should be instantly refundable, and sent back at the sellers expense, to the country of manufacture, to be used for landfill. Just recently, I purchased a device for my computer, and paid good money for it. It did not work, and so I Googled for a forum on the item. It did not get even one slightly good word. I took that back the next morning, and there were no questions asked. Keep your receipts folks. My wife takes note of prices in supermarkets, and scores quite well on the point of law. Overcharged items are instantly taken back inside of the shop for discussion, and the item is then given to her for free. Those that never check, are clearly being robbed by these stores.
Dont plead guilty unless you can get to explain the circumstances of the theft and the defence your using.Use the duty lawyer at the court and get advice before you attend the hearing.
Luke 11 46: Woe unto you also, ye lawyers! For you load men with burdens that are difficult to carry, and you yourselves won't even lift one finger to help carry those burdens.
Hi,
I was researching my case and found on the legal aid website:
"Remember, if the court convicts you, this is still a conviction by a court for doing something dishonest, and this might stop you from getting some jobs. "
Link is:
http://www.legalaid.qld.gov.au/Legal+Information/The+justice+system/Offences/Shoplifting+not+paying+and+property+damage.htm
Does that mean that if convicted and my employer does a check on me, they will find that I have been convicted and loose my job?
My employer will be doing another check on the entire department, me included by the end of next week. My case has not been heard yet, is it possible for my hearing to show?
Yes, Shoeverine. I contacted Legal Aid who said that the best would be to plead guilty.
In the meantime I have also sent a letter of apology to the store manager, have written to the Target head office requesting a refund and have sent a letter to withdraw charges addressed to the police office who charged me, with an explanation of events leading to my situation and explaining that I completely regret my actions and plead to withdraw charges (I have attached letters addressed to the store manager and the head office to support my request.)
So far nothing and my hearing is the week after next. :-(
You will not believe this, but I called Target Head office about the letter I sent and they said that I was entitled to a refund or an exchange if I had the receipt. So, off I went to the Target store to ask for a refund and I GOT IT!!!! So, now I have a copy of the return receipt. I am not sure if it will make a difference, but I will surely include that in my case too.
Also, to my previous question, is there another conviction in QLD apart from the criminal conviction (shudder!!!) that may have me loose my job?
The legal aid website link that I posted earlier seems to mention it. Can anyone shed some light on this please?
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