Property Offences

Question 1

What section of Crimes act deals with receiving/disposing charge?

Answer 1

Section 188 Crimes Act

Question 2

What are the elements of s188 of the crimes act?

Answer 2

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

Question 3

What are the elements of s189?

Answer 3

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.

Question 4

How do you prove received?

Answer 4

Accused must have taken possession - whether actual or constructive. Consideration should be given to s7 of the Crimes Act.

Question 5

What is covered by s7 of the crimes Act?

Answer 5

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.

Question 6

Define possession particularly as it relates to receiving offences using case law:

Answer 6

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.

Question 7

What is the definition of disposed of / attempted to dispose of

Answer 7

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.

Question 8

Does the offence of receiving use the common law definition of receiving?

Answer 8

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.

Question 9

Can you be charged with money that has been converted from the sale of stolen property?

Answer 9

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.

Question 10

What is the easiest way to establish that property was stolen for the purpose of a charge of receiving?

Answer 10

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.

Question 11

Define s187 of the Crimes Act

Answer 11

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.

Question 12

How do you prove the accused knew property stolen at time of receiving/disposing?

Answer 12

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.

Question 13

What was introduced into statute to ensure that if property was stolen outside NSW it wouldn’t result in a failed prosecution?

Answer 13

s189A of the crimes act - 189A Receiving etc goods stolen out of New South Wales

Question 14

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?

Answer 14

189B of the Crimes Act - Prosecution under section 188 or 189 where property stolen in course of transmission

Question 15

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?

Answer 15

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.

Question 16

What is the doctrine of recent possession?

Answer 16

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.

Question 17

What are the proofs for Fraud and what section does it fall under?

Answer 17

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

Question 18

What is the definition of Deception and where is it found?

Answer 18

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

Question 19

What is reckless deception and how is it defined?

Answer 19

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

Question 20

What is the definition of dishonest?

Answer 20

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.

Question 21

Where is property defined for fraud offences?

Answer 21

Section 4 of the Crimes Act

Question 22

When is property obtained for the purpose of belonging to another?

Answer 22

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).

Question 23

When is property obtained for the purpose of financial advantage or causing financial disadvantage?

Answer 23

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

Question 24

How do you prove financial disadvantage?

Answer 24

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.

Question 25

What statute covers “deal with” when considering money laundering offences?

Answer 25

Section 193A of the Crimes Act provides definitions that are utilised in the money laundering offences.
193A Definitions
In this Part—
deal with includes—
(a) receive, possess, conceal or dispose of, or
(b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or
(c) engage directly or indirectly in a transaction, including receiving or making a gift.

Instrument of crime means property that is used in the commission of, or to facilitate the commission of, a serious offence.

Proceeds of crime means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.

Serious offence means—
(a) an offence (including a common law offence) against the laws of New South Wales, being an
offence that may be prosecuted on indictment, or
(a1) an offence against a law of the Commonwealth that may be prosecuted on indictment, or
(b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of
the Poisons and Therapeutic Goods Act 1966 that arises under section 18A (1) of that Act, or
(c) an offence committed outside New South Wales (including outside Australia) that would be an
offence referred to in paragraph (a) or (b) if it had been committed in New South Wales.

Question 26

What statute covers money laundering offences?

Answer 26

193B Money laundering
(1) A person who deals with proceeds of crime—
(a) knowing that it is proceeds of crime, and
(b) intending to conceal that it is proceeds of crime,
is guilty of an offence.
Maximum penalty—imprisonment for 20 years.
(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an
offence.
Maximum penalty—imprisonment for 15 years.
(3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is
guilty of an offence.
Maximum penalty—imprisonment for 10 years.
(4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the
court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the
Commonwealth, a State or a Territory.
The elements of an offence under s193B(3) are:
 The Accused;
 Deals with;
 Proceeds of Crime;
 Being reckless as to whether it is proceeds of crime.

Question 27

What is often an alternative to goods in custody charge and what are the proofs?

Answer 27

Section 193C is sometimes seen as an alternative to a charge of goods in custody under s527C of the Crimes Act. In most circumstances both charges will be available and potentially appropriate. There is a slight difference in the objects to which the sections apply, s 193C refers to ‘property’, while s 527C refers to ‘thing’..

193C Dealing with property suspected of being proceeds of crime
(1) A person is guilty of an offence if—
(a) the person deals with property, and
(b) there are reasonable grounds to suspect that the property is proceeds of crime, and
(c) at the time of the dealing, the value of the property is $100,000 or more.
Maximum penalty—Imprisonment for 5 years.
(2) A person is guilty of an offence if—
(a) the person deals with property, and
(b) there are reasonable grounds to suspect that the property is proceeds of crime, and
(c) at the time of the dealing, the value of the property is less than $100,000.
Maximum penalty—Imprisonment for 3 years.
(3) not reproduced
(4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country.

Section 4 is defence that the defence will need to establish on balance of probabilities.

Question 28

Offences under s193C involve proceeds of crime with a value less than how much if table 2 offences?

Answer 28

less than $100k are table 2 offences. More than $100k are table 1 offences.

Question 29

What are the proofs for a charge of Goods in Custody?

Answer 29

Elements of 527C:
 The Accused;
 Has any thing;
 In his/her (personal) custody; in the custody of another person; or in or on premises;
 Which thing may reasonably be suspected of being stolen or unlawfully obtained.

TEmporary custody:
This subsection involves the accused maintaining a claim on the property, even though at that point in
time it is physically in the possession of another person. Inherent in this subsection is the accused
person has an intention to re-claim the property.

Question 30

How is a thing defined in GIC charge?

Answer 30

No defeinition. A ‘thing’, in this context is any tangible physical article of property.

It has been held that a ‘thing’ can include unused railway tickets, betting tickets, ferns and banknotes (Moore v Allchurch)

Question 31

For goods in custody charge what does premises include?

Answer 31

‘premises’ thus: “includes any structure, building, vehicle,

vessel or place, whether built on or not, any part of any such structure, building, vehicle, vessel or place

Question 32

GOODS IN CUSTODY – PROOFS – WHICH MAY REASONABLY BE
SUSPECTED OF BEING STOLEN OR OTHERWISE UNLAWFULLY
OBTAINED.

Answer 32

This element requires evidence of a reasonable suspicion that the ‘thing’ was stolen or otherwise
unlawfully obtained.

Question 33

Statutory defence?

Answer 33

S527C(2) THE STATUTORY DEFENCE:
527C(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant
satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred
to in the charge was stolen or otherwise unlawfully obtained.

Question 34

Statue of limitations for goods in custody?

Answer 34

For almost all offences against section 527C the statute of limitations will be 6 months. This is governed
by section 179 of the Criminal Procedure Act