Receiving Flashcards
(37 cards)
What is the liability of receiving?
Sec 246(1), Receiving CA 1961
Everyone is guilty of receiving who
1. receives
2. any property stolen or obtained by any other imprisonable offence
3. knowing that property to have been stolen or so obtained;
or being reckless as to whether or not the property had been stolen or so obtained
what is the punishment for receiving?
Under sec247 the value of the property determines the appropriate penalty
exceeds $1,000 = 7 years
exceeds $500 but does not exceed $1,00 = 1 year
does not exceed $500 = 3 months
What elements are required to satisfy the act of receiving?
- There must be property which has been stolen or has been obtained by an imprisonable offence
- The defendant must have “received” the property from another (you cannot receive from yourself)
- The defendant must receive that property knowing it has been stolen, illegally obtained or being reckless as to that possibility.
When is the act of receiving complete?
If there is guilty knowledge (as described in s246) at the point that the act of receiving is complete, then the offence of receiving has been committed.
It is not necessary for the receiver to take personal physical custody of the property. It is sufficient if there is joint or sole possession or control over the property or when the person aids in the concealment or disposal of the same.
Act of receiving is complete once the defendant has:
• Either exclusively or jointly with the thief or any other person
• has possession or control of the property or
• Has assisted in the concealment or disposition of the property
• If there is guilty knowledge at that point, the offence is complete
What is the case law in relation to possession?
R v Cox
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.
Explain possession
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 had the potential for the thing in question in their control i.e storing at someone’s house.
The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item.
What is the case law relating to possession for receiving?
Cullen v R
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
Where a person is unaware of the existence of the property they cannot be said to be in possession of it.
Explain control over property
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 intentionally exercised control over it. Intent to posses 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 innocent agent or party). Again, exercise of such control must be intentional.
Explain assisting in disposal or concealment of stolen property
Prosecution must prove both actual assistance and guilty knowledge. The doctrine of recent possession has no application in such circumstances.
The receiver need not have physically dealt with or actually obtained possession of the property. Acting as an intermediary or assisting in the sale of property for a share of the proceeds is sufficient as long as it can be shown either the defendant acquired (joint or sole) possession, or control over the property or they aided in concealing or disposing of the property.
Explain how the offence must be legally possible
It must be legally possible to commit the offence of receiving. Where property has been restored, directly to the owner or via police acting as the owner’s agent, there can be no conviction. This is because the property is no longer deemed stolen.
What is the case law relating to how the offence must be legally possible?
R v Donnelly
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.
Does prosecution have to prove an element of dishonesty?
R v Crooks it was held there is an implied requirement that the accused act with a dishonest intention.
Define property
Sec 2, CA 1961
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest
Scope of the definition includes tangible and intangible property.
What is the case law relating to property?
R v Lucinsky
The property received must be the property stolen or illegally obtained (or part therof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
The statutory interpretation is extended to include property obtained by any act of dishonesty and is not restrictive to offences committed under the Crimes Act 1961. Money, being the proceeds of drug dealing, is property obtained by dishonest means.
Explain theft and stealing in relation to s219 and s240 CA 1961
Sec219(4) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved
Obtaining by deception is defined s240.
Anderson v Police found obtain has its ordinary meaning of acquired or got in the sense of achieving physical control over the goods in question
R v Nichols further found property has not been dishonestly obtained in situations where the property concerned is freely and voluntarily handed to an intermediary by the rightful owner, before then being dealt with in an illegal manner before then being acquired by another party. This is because the property is not said to have been obtained by a crime.
What is essential to prove in regards to the stolen property?
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.
Explain convictions and proof of guilt
The conviction of an individual is conclusive proof of that person’s guilt.
You are therefore able to rely on the conviction as proof of the offence relating to the property stolen or obtained. You must still prove any conduct or mental elements of receiving against the defendant.
Define title
A right or claim to the ownership of property. Title or ownership of a thing is the legal right to possession of that thing.
Explain the concept of title
Where property is obtained by deceptive means the offender gains both possession and (voidable) title. The type of title gained by the offender has limitations. However when property is stolen they gain possession only.
Explain voidable title
Title obtained by deception is referred to as ‘voidable title’. The issue is that although the title is voidable, it is still a title.
Until the title is avoided, the person committing the deception has title to the property concerned and is able to confer a good title on to anyone who subsequently acquires the property from him in good faith.
This means that where an innocent party buys property that has been obtained by deception and before the title has been avoided, the innocent purchaser is said to have acquired good title to the property. Where the title is avoided prior to the purchase by the innocent party, they do not acquire title to the goods.
Explain avoiding title
In order to avoid title one of the following must be completed:
• Communicating directly with the deceiver
• Taking all reasonable and possible steps to bring it to the deceiver’s notice, eg; letter or email
• Advising Police of the circumstances of the deception
Explain the effect of s246(4)
Property is no longer deemed stolen, and CANNOT be received once that property has been re-acquired by the legal owner or where legal title has been acquired by any person. This includes situations where the receiver is aware that the property was stolen or obtained by any other imprisonable offence
Where title has not been avoided, a person who would otherwise be a receiver, CANNOT be convicted of receiving from a person who has voidable title to property acquired by deception.
The reverse applies where the voidable title has already been avoided, the effect is that it leaves the deceiver with possession only. Thus the deceiver is unable to confer a good title and a subsequent receiving of the property constitutes an offence.
Note: At law, a person cannot transfer to another any better title to goods than they themselves have, therefore where property is stolen, title cannot be transferred as it was never gained by the thief in the first instance.
What is the case law relating to knowing property to have been stolen or so obtained?
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving
Explain “knowing property to have been stolen or so obtained”
A person who receives innocently does not commit an offence under this section if he retains the property dishonestly after acquiring such knowledge, although such retention may amount to theft by dishonestly dealing with the property.
Satisfaction of the offence does not require knowledge of the particular imprisonable offence from which the thing was obtained; therefore it does not matter in circumstances where a receiver thinks that property was stolen, when in fact it was obtained by deception.
