6. Receiving - Elements

Question 1

What are the elements of receiving?

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Answer 1

The elements of receiving are:
* act of receiving
* any property stolen, or
* obtained by any other imprisonable offence
* knowing that at the time of receiving the property that it had been stolen or
obtained by any other imprisonable offence, or
* being reckless as to whether or not the property had been stolen or so obtained

Question 2

The act of receiving requires the satisfaction of three elements. What are they?

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Answer 2

• There must be property which has been stolen or has been obtained by an imprisonable offence.
• The defendant must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself).
• The defendant must receive that property in the knowledge that it has been stolen or illegally obtained or being reckless as to that possibility.

Question 3

What was held in R v Cox?

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Answer 3

Possession involves two elements. The first, the physical element, is
actual or potential physical custody or control. The second, the mental
element, is a combination of knowledge and intention: knowledge in the
sense of an awareness by the accused that the substance is in his
possession and an intention to exercise possession.

Question 4

What does the physical element of possession require?

Answer 4

The physical element requires the physical custody or control over
the item in question and can be either “actual” or “potential”.

Actual possession arises where the thing in question is in a person’s
physical custody or control.

Potential possession arises when the person has the potential to have
the thing in question in their control. For example, storing the thing
in question at an associate’s house or through an agent.

Question 5

What does the mental element of possession require?

Answer 5

The mental element is a combination of both knowledge that the
person possesses the item in question, and an intention to possess
the item.

Question 6

In relation elements of possession, what was held in Cullen v R?

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Answer 6

There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.

Question 7

In Cullen v R, what is the test divided into?

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Answer 7

The four elements outlined in provide a test in relation to
possession for receivers of stolen property.

The test is divided into two general areas, firstly guilty knowledge and
secondly, control of the item.

Question 8

What constitutes control over property?

Answer 8

Where property is located at a place, over which the receiver has control,
then the prosecution must prove the receiver arranged for the property to be delivered there, or alternatively, that on discovering the property, he or she intentionally exercised control over it. As noted above, intent to possess the property must also be satisfied.

Control over property may still be exercised by a receiver when the property is in the possession of the receiver’s agent or servant (includes an innocent agent or party). Again, the exercise of such control must be intentional.

Question 8

What must be proved where the prosecution alleges that the defendant assisted in the disposal or concealment of stolen or dishonestly obtained property?

Answer 8

In situations where the prosecution alleges that the defendant assisted in the disposal or concealment of stolen or dishonestly obtained property, it must prove both actual assistance and guilty knowledge.

Question 9

Provide an example of assisting in disposal or concealment of stolen property?

Answer 9

In situations where the prosecution alleges that the defendant assisted in the disposal or concealment of stolen or dishonestly obtained property, it must prove both actual assistance and guilty knowledge.

The receiver need not have physically dealt with or actually obtained
possession of said property. Acting as an intermediary or assisting in the sale of said property for a share of the proceeds is sufficient as long as it can be shown either that the defendant acquired (joint or sole) possession, or control over the property or that they aided in concealing or disposing of the property.

Question 10

What was held by R v Donnelly in regards to an offence being legally possible?

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Answer 10

Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

Question 11

When proving dishonesty, what is implied requirement that must be proved?

Answer 11

There is conflicting case law as to whether the prosecution must also prove an element of dishonesty. In R v Crooks, it was held that there is an
implied requirement that the accused act with a dishonest intention:

Question 12

Outline property section 2 CA61?

Answer 12

Property includes real and personal property, and any estate or interest in any real and npersonal property, money, electricity, and any debt, and anything in action, and any other right or interest.

Question 13

There is no requirement that, when received the property be in the same condition or state as when it was first stolen, nor is there a requirement that the whole of what wasa stolen be received. Receiving a part of what was stolen will suffice. What was held in R v Lucinsky?

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Answer 13

The property received must be the property stolen or illegally obtained (or part thereof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.

Question 14

Define taking in section 219(4) CA61?

Answer 14

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 15

Define obtain?

Answer 15

In Anderson v Police it was found that “obtain” has its ordinary meaning of “acquired” or “got” in the sense of achieving physical control over the goods in question. The word does not cover the possibility that the goods were lawfully acquired and then dishonestly converted to the thief’s own use, and the onus is on the prosecution to eliminate such an inference beyond reasonable doubt.

Question 16

What circumstances are essential for a receiving charge?

Answer 16

It is essential to a receiving charge that the prosecution prove the property in question was stolen or obtained by any other imprisonable offence, this proof may be direct or circumstantial.

Question 17

What does section 49 of the EA 06 provide?

Answer 17

Section 49 of the Evidence Act 2006 provides that the conviction of an
individual is conclusive proof of that person’s guilt, unless allowed to be
contested by the judge in later proceedings.

Question 18

What is title defined as?

Answer 18

Title is defined by the Oxford Dictionary as meaning ‘a right or claim to
the ownership of property’. Title or ownership of property is the legal right
to possession of that property.

Question 19

What is voidable title, and what are the implications.

Answer 19

Title obtained by deception is referred to as ‘voidable title’.

Until the title is voided, the person committing the deception has title to the property concerned and is able to confer this title on to anyone who
subsequently acquires the property from him/her in good faith.

Question 20

How can title be voided?

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Answer 20

• bring a civil claim seeking an order of the Disputes Tribunal or Small
  Claim tribual and seek a ruling from the circumstances provided.

Question 21

What is the effect of section 246(4)?

Answer 21

By virtue of s246(4), property is no longer deemed stolen, it cannot be
‘received’ once that property has been re-acquired by the legal owner or
where legal title has been acquired by another person. This includes
situations where the receiver is aware that the property was stolen or
obtained by any other imprisonable offence.

On the contrary, where the title has already been voided prior to being
transferred to a third party, it leaves the deceiver with possession only. Thus, the deceiver is unable to confer title to another. In this situation the
subsequent receiving of that property is an offence.

Question 22

How doesk Simester and Brookbanks define knowing?

Answer 22

Simester and Brookbanks45 suggest knowing means “knowing or correctly
believing”. They further premise that “the defendant may believe something wrongly but cannot “know” something that is false”.

Question 23

In regards to guilty knowledge what was held by R v Kennedy?

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Answer 23

The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.

Question 24

What is recklessness?

Answer 24

Acting “recklessly” involves consciously and deliberately taking an
unjustifiable risk.

Question 25

What must be proved for recklessness?

Answer 25

It must be proved not only that the defendant was aware of the risk and
proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).

Question 26

In relation to recklessness, what was held by Cameron v R?

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Answer 26

Recklessness is established if:
(a) the defendant recognised that there was a real possibility
that:
(i) his or her actions would bring about the proscribed
result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.

Question 27

What are the circumstances commonly relied on as evidence of guilty knowledge on the part of the receiver?

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Answer 27

• possession of recently stolen property
• nature of the property, ie type, value, quantity
• purchase at a gross undervalue
• secrecy in receiving the property
• receipt of goods at an unusual place
• receipt of goods at an unusual time
• receipt of good in an unusual way
• concealment of property to avoid discovery
• removal of identifying marks or features
• steps taken to disguise property, ie removal / altering of serial numbers,
  painting
• lack of original packaging
• type of person goods received from
• mode of payment
• absence of receipt where receipt would usually be issued
• false statements as to the source of the goods
• false statements as to the date of acquisition
• nature of explanation given, eg false or inconsistent or no reasonable
  explanation
• false denial of knowledge, existence etc.

Question 28

What is the doctrine of recent possession?

Answer 28

The doctrine of recent possession rule allows for proof of theft or receiving
by way of circumstantial evidence. In circumstances where a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief.

Question 29

When does the doctrine of recent possession apply?

Answer 29

The doctrine applies only to cases where a defendant is found in possession of property recently stolen or obtained dishonestly.

Question 30

What determines whether possession is recent?

Answer 30

Whether possession is ‘recent’ is dependant on:
* the nature of the property, and
* the surrounding circumstances.

Question 31

Provide examples of when property might be considered restored?

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Answer 31

• Inspection and recovery of a stolen car by police is deemed to constitute a restoration of that car to the owner (meaning it is no longer stolen).
• Once stolen property has been identified (recovered) by police, it is then
  legally impossible to commit the offence of receiving or attempting to
  receive (give consideration to a charge of conspiracy to receive).
• Police surveillance or observations of stolen property, such as a vehicle in
  transit or within a thief’s possession, without police assuming either
  possession or control, in order to apprehend a receiver, might not constitute a restoration of property. Such mere observations might not equate to restoration, but rendering the vehicle immobile may.