Im a bit confused about the initial post, did you return them because they were the wrong size or because they were ripping apart? if you selected the wrong size they dont legally have to exchange them once youve worn them and removed the tags. If they were ripping apart or damaged in any way then you would be entitled to a refund or exchange.
The post said they were ripping apart so I guess thats what they did.
If thats true then the store was incorret in not accepting them in an exchange.
The fact that he did attempt to return them in good faith but was refused and then exchanged them himself so to speak, is not condoned but it is a valid defence when it goes to the beak and will probably not get the person a record.
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.
I think they would still consider it to be deceptive, you didnt have permission to exchange the shoes and im sure you didnt do it when a staff member was next to you!
Did you keep the original shoes to prove the damage?
It does not matter whether in exchanging the shoes the defendant was deceptive or not, the defence still applies. The defendant believed she had a right of exchange. Even if a court made a finding that consumer laws didn't apply in her particular circumstances, the defence would still apply.
Yes, I have the original shoes and receipt. The cops have a photograph of it too.
And I 'exchanged' the shoes in clear view of a staff stocking shoes and a customer who I later got to know was the store detective.. funny and tragic.. but I don't think I was deceptive. Just angry and in urgent need of black shoes that fit.
You need to plead that the store had slack customer service and so you changed the shoes over for the right ones. If you have the receipt for the original shoes you may very well get off this one!
Anyway, you won't get a criminal record for this if you ask for section 10 to be applied at sentence.
BadCop Watch: Australia's most informative website on cops gone bad...
Its possible that a conviction wont be recorded. However, I cant see how honest claim of right will prevent a conviction.
This section is intended for people who accidently pick up another passengers suitcase at the airport, honestly believing it to be theirs. Its not intended for these situations. The applicaiton of this defence cannot go ahead if the defendants actions are found dishonest. If she had waited till no one was looking at that particular time and walked away right after picking them up, then that is the deception.
You cannot stretch the principal of honestly believing that you were entilted to do something, to apply in cases like this. If a person bought shoes that were the wrong size, then the store is not obligated to refund them. The fact that she believes that the store is required to refund them does not make a difference.
The original post claimed that the she wanted shoes that 'that actually fit me' indicting that she was willing to go ahead with the same brand and model of shoes, just in a different size. This casts doubt on any suggestion that the store would have been required to refund. She may have a differnt belief, but i dont see how that excuses the offence.
This section is intended for people who accidently pick up another passengers suitcase at the airport, honestly believing it to be theirs.
You would not need the claim of right defence here because you would lack the required intent.
Take the following hypothetical situation, if I steal a mobile phone and some money from someone believing they owe money say, to my boss, would the claim of right defence apply shoeverine?
As i said before, the way in which a defendant takes the property is irrelevant to a claim of right defence. If you want authority for this see R V Love (1989) 17 NSWLR 608 (Court of Appeal).
The original post claimed that the she wanted shoes that 'that actually fit me' indicting that she was willing to go ahead with the same brand and model of shoes, just in a different size. This casts doubt on any suggestion that the store would have been required to refund. She may have a differnt belief, but i dont see how that excuses the offence.
Well I see things differently. She purchased the shoes and within a short time she couldn't wear them. It's as simple as that. Remember, it's common that shoes can feel comfortable when trying them on in the store but after wearing them for some time they can become uncomfortable. The shoes must be fit for purpose otherwise she would be entitled to a refund or exchange.
Hi Not Guilty,
Your example, I think is different from mine. The item was purchased from the store by me, so if the item does not fulfill its purpose should the store not be liable for an exchange?
I may be wrong. Please comment.
Hi Not Guilty,
Your example, I think is different from mine. The item was purchased from the store by me, so if the item does not fulfill its purpose should the store not be liable for an exchange?
I may be wrong. Please comment.
The hypothetical example I used was only as an illustration of how a claim of right can be a defence to a more serious charge than yours.
As I mentioned previously, even if you weren't legally entitled to exchange the shoes, that fact that you believed you were is sufficient for the defence to operate. And it was certainly reasonable in the circumstances for you to have that belief.
So in my opinion, assuming the facts are as you stated them, you have a valid defence.
The ACCC say:
You do not have a right to seek a refund if you:
• simply change your mind
• buy the wrong item
• find the goods cheaper at another store
• use the goods in a way that they were not made for
• caused the goods to become damaged.
From what I can tell she bought the wrong item (wrong size) and damaged the goods (wore them and removed the tags) so I dont think she had a legal right to demand exchange?
I wore the shoes on the 27/10/09 morning and realised that they were uncomfortable, gave me a lot of shoe bites and was ripping apart.
I think she had a case, the goods were unsuitable for the purpose for which they were purchased and they were defective.
However making the exchange herself is where I believe she has problem. 'Not Guilty' presents a case, which on the surface seem good, however I have no knowledge or experience in this so I cannot say. However in my mind there certainly was a case under the ACCC legislation.
Will be very interested to see how this turns out.
I am NOT a lawyer. Anything said is NOT legal advice.
Hi,
Just had a chat with my solicitor who said that the claim of right defence would not stand in my case.
According to the solicitor:
If I was not happy with their exchange policy, I could have lodged a case asserting the 'claim of right' by which the store would be obligated to exchange the item.
As I took the matter into my own hands, I have committed a statutory offence and not a criminal one.
Yet, they have slapped me with a criminal charge which I cannot understand why.
The solicitor is charging me $1750 for the entire process, which I find absurd as the pair of shoes were only $43.95. I am a salaried employee and cannot afford the solicitor fees (its more than half my monthly wage). What sort of other options do I have?
Thats right it is not a " criminal" offence so it cant get you a criminal record. So the argument can be used as a defence against a criminal charge. You may get a small fine for the offence, with no criminal charge recorded and thats what you want.
Given the costs.
Your better off defending yourself, fronting the beak with some legal knowledge and getting the duty solicitor to help you to put the case forward and explaining the situation to the magistrate
If youve never been to court before take a Monday off and visit your local court house and see what takes place.
That will give you a feel for procedure and you can then decide what to to tell the magistrate.
Itll save you $2K.
Edited by rambler1 - 06/November/2009 at 15:50
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.
My hearing in Nov is pretty early in the day. Any idea what time the court at Roma Street opens?
I have a feeling I will be the first one which I don't want.
I also have an appointment with a legal advisor/solicitor at Legal aid early next week and so will keep everyone posted as I go.
Again, thanks for all the support and the advice!
Great work MartinO for keeping the forum going.
The magistrates court usually starts at 9:30am but just because you are called for that time does not necessarily mean the case will be heard first, there may be 20 or 30 cases listed for that time and the court will work through them in turn. If you are representing yourself you will be moved down the list so the cases with legal representation can be heard first.
According to the solicitor:
If I was not happy with their exchange policy, I could have lodged a case asserting the 'claim of right' by which the store would be obligated to exchange the item.
As I took the matter into my own hands, I have committed a statutory offence and not a criminal one.
Yet, they have slapped me with a criminal charge which I cannot understand why.
Either the solicitor has got it wrong or you have misinterpreted the solicitor.
The "claim of right" is not asserted against the store, it is a criminal defence that has the effect of negating intent. The offence you have been charged with is a statutory offence because it is created by the Qld Criminal Code but it is still a criminal offence. Criminal offences can have their basis in statute or the common law.
Yes, you took matters into your own hands but despite that I believe you have a defence.
With respect the solicitor's advice you've been given Googler, in my opinion it's wrong. I stand by every post in this thread. Do me a favour and please get a second opinion. Not many lawyers are very familiar with intricacies of the claim of right defence as it is rarely used. I do not wish to see Googler get a conviction that is not supported in law.
I'm happy for this to be my last post on the matter as I can do no more.
BTW the hypothetical example used in a post above is actually from a real case, and yes, the Court of Criminal Appeal stated the claim of right defence was available in those circumstances see R v Sabbah [2004] NSWCCA 28 particularly [101] with [102] explaining the elements of the defence.
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