Dorosh had purchased a van with a steam cleaning unit, and as part of the deal had given the seller a trailer. There had been evidence that the steam cleaning unit needed repairs and that Dorosh believed the van was subject to a lien, all contrary to the seller's representations. Dorosh had also testified that he unsuccessfully tried to contact the seller, and considered the deal to be dead. He had gone to the seller's home and picked up the trailer that he had originally given as part of the deal, and sold it about a month later. The trial judge did not accept that Dorosh had a legal foundation to his claim for the trailer, and thus found he had no colour of right, and convicted him of theft.
- Did the trial judge err in his interpretation of whether or not he had a colour of right in taking the property?
Appeal allowed, new trial ordered.
Bayda, writing for the court, held the trial judge had mistakenly considered that the claim of colour of right could have a basis only in a mistake of facts, not of law. The trial judge should have considered whether Dorosh had an honest belief that he had a right to the trailer, even if the claim was unfounded in law and fact.
A colour of right can exist both as a mistake of fact and a mistake of law.