Criminal Law-Penal Code, section 289-Unlawful use of vehicles, etc.-Construction of phrase "without colour of right".
Case summary
The accused, a police constable, was charged with the theft of a bicycle. The trial magistrate found that the evidence did not prove the offence charged, but did prove that the accused had taken the bicycle unlawfully and without colour of right. Accordingly, he convicted him of an offence against the Penal Code, section 289. He did not give himself a precise direction as to the meaning of “without colour of right”.
The accused appealed against conviction on the ground that the evidence disclosed no offence.
Held (20th September 1956):
“Colour of right” in section 289 does not have the same meaning as “claim of right” in section 263.
“Colour of right” means “an honest belief in a state of facts which, if it existed, would be a legal justification or excuse”.
There was evidence that the accused took the bicycle without colour of right.
Appeal against conviction dismissed.
Counsel:
Appellant absent, not represented.
Webber, Crown Counsel, for the Crown.
Case cited: R. v. Fetzer (1900) 19 N.Z.L.R. 438.
Reported by:
I. R. Thompson, Esq., Resident Magistrate.
