Receiving

Question 1

Receiving

Answer 1

Receiving
S246 (1) CA 61

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 2

The “act of receiving”

Answer 2

The act of receiving requires the satisfaction of 3 elements

1. There must be property which has been stolen or has been obtained by an imprisonable offence
2. The defendant must have “received” that property, which requires that the receiving must be from another (you can’t receive from yourself)
3. 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 3

R v Cox

Answer 3

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.

Question 4

Cullen v R

Answer 4

Cullen v R

There are four elements of possession for receiving:

1. Awareness that the item is where it is
2. Awareness that the item has been stolen
3. Actual or potential control of the item ; AND
4. An intention to exercise that control over the item.

Question 5

R v Donnelly

Answer 5

R v Donnelly

When 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

Question 6

R v Lucinsky

Answer 6

R v Lucinsky
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 7

Concept of title

Answer 7

Title is defined as a right or claim to the ownership of property. Title or ownership of a thing is the legal right to possession of that thing.

Where property is obtained by deceptive means the offender gains both possession and voidable title.
Title is passed to the offender as the property is generally handed over to the offender by the owner.

Whereas in theft the property is taken without the consent of the owner and no transfer of title occurs

Question 8

Voidable title

Answer 8

Title obtained by deception is reffered ta as “voidable title”
This means that the title can be voided by the seller. The issue is that although the title is voidable, it is still title.

Until the title is voided, the person committing the deception has title to the property concerned and is able to confer good title onto anyone who subsequently acquires the property from him in good faith.

This means if 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 purchase by the innocent party, they do not acquire title to the goods

Question 9

Avoiding title

In order to avoid title one of the following must be completed

Answer 9

1. Communicating directly with the deceiver
2. Taking all reasonable and possible steps to bring it to the deceivers notice, e. G emails, sending letter
3. Advising police of the circumstances of the deception

Question 10

The effect of s264(4)

Answer 10

The effect of s264 (4) is that 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

Question 11

R v Kennedy

Answer 11

R v Kennedy

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

Question 12

Cameron v R

Answer 12

The defendant will be reckless as to the offence if they recognised that there was a real possibility that their actions would bring about the proscribed result or that the proscribed circumstances exist and acted unreasonably in regard to the risk

Question 13

Doctrine of recent possession

Answer 13

The doctrine recent possession is the presumption that,

Where the defendant acquired position 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