Property Offences Flashcards
What section of Crimes act deals with receiving/disposing charge?
Section 188 Crimes Act
What are the elements of s188 of the crimes act?
Elements of s 188
- The Accused;
- Received/Disposed of/attempted to dispose of;
- Property that was stolen (where the stealing of the property amounts to a serious indictable offence);
- At the time of the receiving/disposing of/attempting to dispose of, the accused knew that the property was stolen.
Essentially table 1 matters where amount exceeds $5000
What are the elements of s189?
Elements of s 189
- The Accused;
- Received/Disposed of/attempted to dispose of;
- Property that was stolen (where the stealing of the property amounts to a minor indictable offence);
- At the time of the receiving/disposing of/attempting to dispose of, the accused knew that the property was stolen.
How do you prove received?
Accused must have taken possession - whether actual or constructive. Consideration should be given to s7 of the Crimes Act.
What is covered by s7 of the crimes Act?
Defines possession when the matter is criminal in nature. Basically person is said to be in possession within the meaning of the act who:
(a) has any such property in his or her custody, or
(b) knowingly has any such property in the custody of another person, or
(c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there
had or placed for his or her own use, or the use of another.
inherent in s7 is knowledge of the accused.
Define possession particularly as it relates to receiving offences using case law:
He Kaw Teh v The Queen (1985) - “possession connotes knowledge in the existence of the thing possessed. In charges involving ‘possession’ of drugs, the prosecution bears the onus of proving that the accused knew of the existence of the goods which were in a suitcase or other container over which he had exclusive physical control.
Case of R v Wiley tested this where a known receiver went to purchase stolen birds from two other thieves. They all got charged but Wiley succesfully argued he never had possession as the thieves hadn’t relinquished possession of the birds.
What is the definition of disposed of / attempted to dispose of
There is no definition of disposes of or attempt to dispose of in the Crimes Act. Ordinary meaning of words is used as per dictionary.
Does the offence of receiving use the common law definition of receiving?
No the definition of property used in receiving is the s4 Crimes Act definition.
Property includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the
possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether
immediately or otherwise.
Can you be charged with money that has been converted from the sale of stolen property?
Yes.. section 4 of the crimes act says that property includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether
immediately or otherwise.
What is the easiest way to establish that property was stolen for the purpose of a charge of receiving?
Adduce it from the owner. Stealing is also defined in s187 of the Crimes Act which is used in s188 and s189 receiving/disposing offences.
Define s187 of the Crimes Act
187 Term “stealing” in sections 188 and 189
For the purposes of sections 188 and 189—
Stealing includes the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question.
How do you prove the accused knew property stolen at time of receiving/disposing?
The Court must be satisfied of the accused’s subjective knowledge of the status of the property at the
time they received or disposed of it. This is not an objective test and the Court will not have regard to whether a hypothetical ‘reasonable person’ would have had the requisite knowledge.
R v Julal Raad [1983] - prosecution at least needs to establish the accused had a belief that the property was stolen.
What was introduced into statute to ensure that if property was stolen outside NSW it wouldn’t result in a failed prosecution?
s189A of the crimes act - 189A Receiving etc goods stolen out of New South Wales
How do you prove matters of receiving or disposing where it can’t be proven beyond a reasonable doubt that it was stolen from NSW or another state?
189B of the Crimes Act - Prosecution under section 188 or 189 where property stolen in course of transmission
What happens if you can’t prove beyond a reasonable doubt if the accused was either the thief or the receiver but can definitely prove beyond a reasonable doubt that he was one or the other?
s121 Crimes Act - alternative verdict - Verdict of “larceny or receiving”.
section 121 requires at least 2 charges before the Court, one of larceny (or an offence which includes larceny such as break, enter and commit larceny and robbery) and the jury unable to decide beyond a reasonable doubt between the two.
If convicted on s121 the accused will be sentenced on whichever charge has the lesser sentence.
What is the doctrine of recent possession?
When a person is proven to have, or have
had, possession of property which can be shown by evidence to have been stolen, and that possession is recent to the time of the theft, and the person fails to offer a credible explanation for their possession
of the property, then a jury is entitled to draw a conclusion from the person’s unexplained possession of the property that the person is either the thief or guilty receiver.
What are the proofs for Fraud and what section does it fall under?
Crimes Act 1900 No 4
192E Fraud
(1) A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.
Maximum penalty: Imprisonment for 10 years.
Therefore, the elements of a Section 192E Fraud are as follows:
The Defendant
By deception
Dishonestly
Obtained property or obtained financial advantage or caused financial disadvantage
What is the definition of Deception and where is it found?
Crimes Act 1900 No 4
192B Deception
(1) In this Part,
“deception” means any deception, by words or other conduct, as to fact or as to law, including:
(a) a deception as to the intentions of the person using the deception or any other person, or
(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that
the person is not authorised to cause it to make.
(2) A person does not commit an offence under this Part by a deception unless the deception was intentional or
reckless
What is reckless deception and how is it defined?
A reckless deception will occur where the accused does not know a representation is untrue, but knows there was a
substantial risk it was untrue but proceeded to convey it with indifference as to its truth or falsehood: Moore v R [2016]
NSWCCA 260 at 52
What is the definition of dishonest?
Crimes Act 1900 No 4
4B Dishonesty
(1) In this Act:
“dishonest” means dishonest according to the standards of ordinary people and known by the defendant to be
dishonest according to the standards of ordinary people.
(2) In a prosecution for an offence, dishonesty is a matter for the trier of fact.
Keep in mind the following:
Crimes Act 1900 No 40
Section 192E - Fraud
(2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for
the property.
(3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or
other property even though the deficiency is made up of any number of particular sums of money or items of other
property that were obtained over a period of time.
Where is property defined for fraud offences?
Section 4 of the Crimes Act
When is property obtained for the purpose of belonging to another?
Crimes Act 1900 No 4
192C Obtaining property belonging to another
(1) For the purposes of this Part, a person “obtains property” if–
(a) the person obtains ownership, possession or control of the property for himself or herself or for another
person, or
(b) the person enables ownership, possession or control of the property to be retained by himself or herself or
by another person, or
(c) the person induces a third person to do something that results in the person or another person obtaining or
retaining ownership, possession or control of the property.
(2) A person does not commit an offence under this Part by obtaining or intending to obtain property belonging to
another unless the person intends to permanently deprive the other of the property.
(3) For the purposes of this Part, “property belongs” to a person if–
(a) the person has possession or control of the property, or
(b) the person has a proprietary right or interest in the property (not being an equitable interest arising only
from an agreement to transfer or grant an interest or from a constructive trust).
When is property obtained for the purpose of financial advantage or causing financial disadvantage?
Crimes Act 1900 No 40
Section 192D - Obtaining financial advantage or causing financial disadvantage
(1) In this Part, obtain a financial advantage includes:
(a) obtain a financial advantage for oneself or for another person, and
(b) induce a third person to do something that results in oneself or another person obtaining a financial
advantage, and
(c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary
How do you prove financial disadvantage?
Crimes Act 1900 No 40
Section 192D - Obtaining financial advantage or causing financial disadvantage
(2) In this Part, cause a financial disadvantage means:
(a) cause a financial disadvantage to another person, or
(b) induce a third person to do something that results in another person suffering a financial disadvantage,
whether the financial disadvantage is permanent or temporary.
