Association offences (Receiving)

Question 1

Section 246 Crimes Act 1961 - What is the title?

Answer 1

Receiving

Question 2

What is the Section for Receiving ?

Answer 2

Section 246 Crimes Act 1961

Question 3

What is stated under Section 246(1) Crimes Act 1961?

Answer 3

Everyone is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, 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.

Question 4

What if the act of obtaining the property was committed outside nz?

Answer 4

Section 246(2) Crimes Act 1961
For the purposes of this section, property that was obtained by any act committed outside NZ that, if it had been committed in NZ, would have constituted an imprisonable offence is, subject to sub (5), to be regarded as having been obtained by an imprisonable offence.

Question 5

When is receiving complete?

Answer 5

Section 246(3) Crimes Act 1961
The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.

Question 6

When is knowingly receiving stolen property not an offence?

Answer 6

Section 246(4) Crimes Act 1961
If
(a) Any property stolen or obtained by any other imprisonable offence has been returned to the owner; or
(b) legal title to any such property has been acquired by any person
A subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any other imprisonable offence.

Question 7

What is to be presumed when a receiving offence is triggered by an act overseas?

Answer 7

Section 246(5) Crimes Act 1961
If a person is charged with an offence under this section and the property was obtained by an act committed outside NZ, it is to be presumed, unless the person charged puts the matter at issue, that the doing of the act by which the property was obtained was an offence under the law of the place where the fact was done.

Question 8

Section 247 Crimes Act 1961 - What is the title?

Answer 8

The punishment for receiving

Question 9

Act and Section for The punishment for receiving

Answer 9

Section 247 Crimes Act 1961

Question 10

What is stated under Section 247 Crimes Act 1961?

Answer 10

Every person who is guilty of receiving is liable as follows:
(a) If the value of the property received exceeds $1000, to imprisonment for a term not exceeding 7 years
(b) If the value of the property received exceeds $500 but does not exceed the sum of $1000, to imprisonment for a term not exceeding 1 year
(c) If the value of the property received does not exceed $500, to imprisonment for a term not exceeding 3 months.

Question 11

What are the elements of receiving?

Answer 11

• The 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 12

The act of receiving requires the satisfaction of three elements - what are these?

Answer 12

• 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 13

What do you not ned to prove for the act of receiving?

Answer 13

Usually there is no need to prove dishonesty and that the only mental element required is proof of knowledge or recklessness as to the property having previously been stolen. Though there may be exceptions to this.

Question 14

What was stated in the case of R v Ma in relation to receiving?

Answer 14

There is effectively an overarching additional mental element to the offence. It will be necessary for the crown to negative the accuseds explanation. It must satisfy the jury beyond reasonable doubt that the altruistic explanation is untrue.

Question 15

R v Cox - what does it state?

Answer 15

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 16

Cullen v R - what does it state?

Answer 16

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 17

What does Cullen v R provide?

Answer 17

A test in relation to possession for receivers of stolen property.

Question 18

How can the test in Cullen v R be utilised?

Answer 18

It can be utilised in relation to receivers of dishonestly obtained property where the focus would be on knowledge of the dishonest obtaining.

Question 19

What is the test in Cullen v R divided into?

Answer 19

Two general areas - guilty knowledge and control over the item.

Question 20

What occurs when all elements aren’t present in relation to Cullen v R and possession for receiving?

Answer 20

Where one or more of them is lacking, or incompletely present, it has to be decided whether the given approximation is such that possession may be held sufficiently established to satisfy the relevant rule of law.
Where a person is unaware of the existence of the property they cannot be said to be in possession of it.

Question 21

What is included in control over property?

Answer 21

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.

Question 22

When else can control over property be exercised?

Answer 22

It may still be exercised by a receiver when the property is in the possession of the receivers agent or servant.

Question 23

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

Answer 23

It must prove both actual assistance and guilty knowledge.

Question 24

What is an example of assisting in disposal or concealment of stolen property?

Answer 24

Assisting in the sale of stolen property although the person has not physically dealt with or possessed the property.

Question 25

What does the receiver need not to have done?

Answer 25

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 possession, or control over the property or that they aided in concealing or disposing of the property.

Question 26

What MUST the receiving be?

Answer 26

Legally possible.

Question 27

What if the stolen property is returned?

Answer 27

Similar to that in the attempts, if it has been restored directly to the owner or via police acting as the owners agent, there can be no conviction. This is because the property is no longer deemed stolen.

Question 28

What is held in R v Donnelly?

Answer 28

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, event hough the receiver may know that the property had previously been stolen or dishonestly obtained.

Question 29

Do you need to prove dishonesty in receiving?

Answer 29

There is conflicting case law as to whether the prosecution must prove dishonesty.
R v Crooks held that there is an implied requirement that the accused act with dishonest intention where R v Marshall held that there is an implied requirement that the accused act with a dishonest purpose - if they receive with the intention of returning it to the rightful owner then there is no offence but if conditions are imposed by this person, the alternative applies.

Question 30

What is the definition of ‘property’?

Answer 30

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

Question 31

R v Lucinsky - what does it state?

Answer 31

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 32

What state does the property have to be in for receiving to apply?

Answer 32

There is no requirement that, when received, the property be in the same condition or state as when first stolen, nor is there a requirement that the whole of what was stolen be received. Receiving a part of what was stolen will suffice.

Question 33

What is an example of someone guilty of receiving?

Answer 33

Where a thief steals $100 in $20 notes and provides one of these notes to a receiver - the offence of receiving is committed.

Question 34

What is an example of negating the offence of receiving?

Answer 34

Where a thief steals $100 in $20 notes and visits a bank, exchanging it for smaller or larger denominations and then provides the money (or a portion of) to a receiver - that person is not guilty of receiving as the notes exchanged are not the property originally stolen or part thereof.

Question 35

What is a conclusive proof of guilt?

Answer 35

A conviction of an individual is a conclusive proof of guilt - therefore you can rely on the conviction of the thief or obtainer as proof of the offence relating to the property stolen or obtained.

Question 36

What is the definition of “title”?

Answer 36

A right or claim to the ownership of property. It is the legal right to possession of that property.

Question 37

What does the offender gain when property is obtained by deceptive means?

Answer 37

The offender gains both possession and title.

Question 38

What is the difference between a theft and deception when title is concerned?

Answer 38

Title gained by deception is passed on to the offender, as the property is exchanged willingly by the owner, whereas with theft the property is taken without consent of the owner and no transfer of title occurs.

Question 39

What is considered voidable title?

Answer 39

Title obtained by deception is referred to as “voidable title”. Although the title is voidable, it is still title.

Question 40

What is the definition of ‘voidable title’?

Answer 40

This means that the title can be voidable by the seller (complainant).

Question 41

What can a person with ‘voidable title’ do?

Answer 41

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 42

What does it mean if the property with ‘voidable title’ is transferred to another person in good faith?

Answer 42

This means that where an innocent party buys property that has been obtained by deception and before the title has been voided, the innocent purchaser has acquired good title to the property.

Question 43

How to void title?

Answer 43

I order to void title, the complainant must:
- Bring a civil claim seeking an order of the Disputes Tribunal or Small Claim Tribunal and seek a ruling from the circumstances provided.

Question 44

If property is no longer deemed stolen (via title or RTO) What is the effect on voidable title?

Answer 44

If 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 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.

Question 45

What rule is contrary to Section 246(4) in relation to voidable title ?

Answer 45

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 46

What does knowing mean?

Answer 46

Simester and Brookbanks suggests that knowing means “knowing or correctly believing”. They further that by saying “the defendant may believe something wrongly but cannot “know something that is false.

It also means knowing or believing a set of circumstances so as to be free from doubt.

Question 47

What will the prosecution rely on in terms of “knowing” ?

Answer 47

It will rely on inferences from the circumstances to establish that the accused knew the property was stolen or obtained by an imprisonable offence, or was reckless as to that possibility at the time of receiving.

Question 48

R v Kennedy - What does it state?

Answer 48

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

Question 49

What was concluded in Rex v Stone?

Answer 49

That a person who receives innocently does not commit an offence under this section if he or she retains the property dishonestly after acquiring such knowledge - although such retention may amount to theft by dishonestly dealing with the property.

Question 50

What does satisfaction of the offence of receiving not require?

Answer 50

It 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.

Question 51

What does “Acting recklessly” involve?

Answer 51

Consciously and deliberately taking an unjustifiable risk.

Question 52

What must you prove for “acting recklessly”?

Answer 52

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

Question 53

Cameron v R - what did it state?

Answer 53

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
- (ii) the proscribed circumstances existed; and
(b) having regard to that risk, those actions were unreasonable.

Question 54

An example of high social utility?

Answer 54

A surgeon undertaking a risky but potentially life saving surgery

Question 55

An example of low social utility?

Answer 55

A game of Russian roulette or personal violence with a risk of serious injury or death

Question 56

What was suggested as a general rule in R v Tipple in relation to recklessness?

Answer 56

That recklessness is to be given the subjective meaning. The concept is subjective in that it requires that the offender know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires “a deliberate decision to run the risk”.

Question 57

What was found in R v Briggs in relation to recklessness?

Answer 57

It was found that knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 58

What may be sufficient to prove guilty knowledge?

Answer 58

The circumstances in which the property was received may alone be sufficient to justify a finding that the property was stolen, and an inference of guilty knowledge.

Question 59

The circumstances commonly relied on as evidence of guilty knowledge on the part of a receiver can often be demonstrated circumstantially, for example, by:

Answer 59

• Possession of recently stolen property
• Nature of the property (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 goods in an unusual way
• Concealment of property to avoid discovery
• Removal of identifying marks or features
• Steps taken to disguise property (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 statement as to the source of the goods
• False statement as to the date of acquisition
• Nature of explanation given (false or inconsistent or no reasonable explanation)
• False denial of knowledge, existence etc.

Question 60

What direct evidence can you bring to prove guilty knowledge?

Answer 60

It is possible to call the original thief/obtainer to give evidence against the receiver.

Question 61

When can you call the original thief / obtainer to give evidence against the receiver?

Answer 61

The associated defendant will only be compellable to give evidence against the defendant if the associated defendant is being tried separately from the defendant or the proceeding against the associated defendant has been determined/concluded. Where these requirements are not met, the obtainer is not compellable as a witness.

Question 62

What must the judge do if the only evidence implicating the receiver is that of the thief or obtainer?

Answer 62

A judicial warning must be given as to a motive to lie.

Question 63

Can propensity evidence be used for receiving?

Answer 63

Propensity evidence holds relevance to a receiving charge, and may, where permitted, be introduced as evidence in proceedings in relation to a receiving charge.

Question 64

What is the doctrine of recent possession?

Answer 64

It is the presumption that, where the defendant required possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver, or has committed some other offence associated with the theft of the property

Question 65

What does the doctrine of recent possession allow?

Answer 65

It 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 theft.

Question 66

When is the doctrine of recent possession important?

Answer 66

Where no other material evidence is available. But this presumption does not arise unless there is proof that the property has in fact been stolen or obtained by another crime.

Question 67

When does the doctrine of recent possession apply?

Answer 67

Only in cases where a defendant is FOUND IN POSSESSION of property recently stolen or obtained dishonestly.

Question 68

When does the doctrine of recent possession NOT apply?

Answer 68

It has no application to the concealing or disposition of property

Question 69

The doctrine of recent possession - who is the onus on for proof?

Answer 69

Where there is no proof of any theft, a person in possession of property is not bound to account for their possession of it. The onus to do so lies with the prosecution.

Question 70

Whether possession is recent is dependant on:

Answer 70

• The nature of the property, and
• The surrounding circumstances.

Question 71

When are police acting as an “agent” ?

Answer 71

Police are deemed to have an implied authority from the owner to recover and restore property where a complaint is lodged. This means that police possession of recovered property also equates to restoration of that property to the rightful owner.

Question 72

It is the subject of debate as to when there has been a restoration of that property for the owner, for example:

Answer 72

• 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.
• Police surveillance or observations of stolen property, such as a vehicle in transit or within a thiefs 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 a restoration but rendering the vehicle immobile may.

Question 73

How to avoid a determination of restoration?

Answer 73

Adopt the procedure of merely watching the stolen property without intervention. Delay seizure until the suspect uplifts the property concerned.

Question 74

Can you be charged for receiving from an unknown person?

Answer 74

Charges may be formulated in respect of receiving ‘from persons unknown’ in circumstances where it is not known who committed the offence by which the property was obtained, providing all elements of the offence can be proved.

Question 75

What is the charge if property is “stolen to order”?

Answer 75

In situations where property is stolen to order, the receiver of such stolen property is liable as a party to the principal offence, rather than as a receiver under s246.

Question 76

When is receiving stolen property from overseas an offence?

Answer 76

Receiving property that was obtained by any act committed overseas is an offence under NZ law only if the receiving takes place in NZ.

Question 77

When is obtaining property outside NZ an offence?

Answer 77

Property obtained by any act committed outside NZ that, if it had been committed in NZ, would have constituted an imprisonable offence is, subject to sub(5), to be regarded as having been obtained by an imprisonable offence (246(2)

Question 78

What is the presumption around obtaining property outside of NZ if a person is charged?

Answer 78

If a person is charged with an offence under this section and the property was obtained by an act committed outside NZ, it is to be presumed, unless the person charged puts the matter at issue, that the doing of the act by which the property was obtained was an offence under the law of the place where the act was done.

Question 79

Can you be a party to receiving?

Answer 79

Where a thief delivers stolen property to a receiver who, to his knowledge, is aware that the property has been dishonestly obtained, the thief is liable as a party to that receiving that has been committed by the receiver.

Question 80

What is the penalty for receiving?

Answer 80

The value of the property received determines the penalty that may be imposed. It is therefore important that the value of the property concerned is include in the charging document.