S246 RECEIVING Flashcards
(23 cards)
Receiving
S246(1) Crimes Act 1961
Receives
Any property stolen or obtained by any other imprisonable offence
Knowing that at the time of receiving the property has been stolen or reckless as to whether or not the property has been stolen or so obtained
What three elements must be proved for the act of receiving
- there must be property which has been stolen or has been obtained by any imprisonable offence
- the defendant must have RECEIVED that property which requires that the receiving must be from another
- the defendant must receive the property in the knowledge that it has been stolen or illegally obtained OR being reckless as to that possibility
When is the act of receiving complete?
When the offender has exclusive, joint possession of or control over the property OR
The offender helps conceal or dispose of the property
If there is guilty knowledge at that point, the offence is complete.
R V Cox (possession)
Possession involves two elements
Physical - custody and control
Mental - knowledge and intent
R V Cullen
Four elements of possession for receiving;
AWARENESS that the item is where it is
AWARENESS that the item has been stolen
ACTUAL or POTENTIAL control of the item
An INTENTION to exercise that control over the item
R v Donnelly
Must be legally possible - if the accused receives legal title or property is returned to the owner and later sold they cannot be charged with receiving. Even if the receiver may know the property to be stolen or dishonestly obtained
Property
Any real or personal property, any estate or any interest in any real or personal property. Includes tangible or intangible property
R V Lucinsky
The property received must be the prior 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
Obtain
Acquired/got in the sense of achieving physical control
Simester and Brookbanks
Knowing means correctly believing. A person cannot know something that is false
Title
A right or claim to the ownership of the property
Voidable title
Title obtained by deception
The effect of 246(4)
By virtue of s246(4) property is no longer deemed stolen it cannot be received once that property has been reacquired by the legal owner or where legal title has been acquired by another person
R V Kennedy
Guilty knowledge that the thing has been stolen or dishonestly obtained must exist AT the time of receiving
R V Cameron (recklessness)
Recklessness is established if the defendant recognised
His/her actions would bring about proscribed result and/or
The proscribed circumstance existed
Having regard to the risk those actions were unreasonable
Circumstances commonly relied as guilty knowledge of a receiver
- nature of the property eg type, value and quantity
- purchase goods at gross undervalue
- getting goods at an unusual place, time or way
- removal of serial numbers
- type of person goods received from
- mode of payment
- lack of original packaging
- possession of recently stolen goods
When does the doctrine of recent possession apply
Only to cases where the defendant is found in possession of property recently stolen or dishonestly obtained
Doctrine of recent possession
A person found in possession of property recently stolen it obtained dishonestly, an inference maybe drawn that the person in possession either stolen the property or received it from the thief
Explain how possession can be established
In the immediate physical control or at the location over which the receiver has control
What are the two elements for assisting in disposal or concealment of stolen property?
Actual assistance
Guilty knowledge
Is it possible to call the original thief to give evidence against the receiver?
Yes as long as;
They are tried separately
The proceeding against the thief has been concluded
How can you determine when possession is recent?
Possession is dependant on the nature of the property and the surrounding circumstances
Reckless
Deliberately took an unjustified risk
