Receiving Flashcards
What is required to be proved for receiving
The elements of receiving are:
• 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 offnce, or
• being reckless as to whether or not the property had been stolen or so obtained.
Under s247, the value of the relevant property determines the appropriate penalty.
What is the “Act of Receiving”
The act of receiving requires the satisfaction of three elements:
• 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.
When is receiving complete?
If there is guilty knowledge (as described in s246) at the point that the act of receiving is complete, then the offence of receiving has been committed.
It is not necessary that the receiver take personal physical custody of the property in question. It is sufficient if there is joint or sole possession or control over the property or where the person aids in concealment or disposal of the same.
When does someone have control over property
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. As noted above, intent to possess the property must also be satisfied.
Control over property may still be exercised by a receiver when the property is in the possession of the receiver’s agent or servant (includes an innocent agent or party). Again, the exercise of such control must be intentional.
Property definition
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.
Stolen or obtained by any imprisonable offence
The word “stolen” was included to ensure that the offence of receiving encapsulated property stolen by conversion. The critical question will be whether the property was obtained by theft or by some other crime.
Theft or stealing is defined in s219 of the Crimes Act 1961. “Taking” is not specifically defined by statute but can be read, for the purposes of this section, in conjunction with the definition of theft as contained within s219 of the Crimes Act 1961.
Section 219(4), Crimes Act 1961: Interpretation For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
‘Obtaining by deception’ is defined in s240 of the Crimes Act 1961.
In Anderson v Police42 it was found that “obtain” has its ordinary meaning of “acquired” or “got” in the sense of achieving physical control over the goods in question. The word does not cover the possibility that the goods were lawfully acquired and then dishonestly converted to the thief’s own use, and the onus is on the prosecution to eliminate such an inference beyond reasonable doubt.
What is title?
Tile is defined by the Oxford Dictionary44 as meaning ‘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 title. However the type of title gained by the offender has limitations.
Title is passed to the offender in these circumstances, as the property is generally handed over to the offender by the owner, whereas with theft the property is taken without the consent of the owner and no transfer of title occurs.
What is voidable title?
Title obtained by deception is referred to as ‘voidable title’. This means that the title can be avoided by the seller (complainant). The issue is that although the title is voidable, it is still a title.
Until the title is avoided, the person committing the deception has title to the property concerned and is able to confer a good title on to anyone who subsequently acquires the property from him in good faith.
This means that where 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 the purchase by the innocent party, they do not acquire title to the goods.
How do you avoid title?
In order to avoid title one of the following must be completed:
• communicating directly with the deceiver
• taking all reasonable and possible steps to bring it to the deceiver’s notice, eg sending a letter or email
• advising police of the circumstances of the deception
Knowing that property to have been stolen or so obtained
Simester and Brookbanks45 suggest knowing means “knowing or correctly believing”. They further premise that “the defendant may believe something wrongly, but cannot “know” something that is false”.
What is being reckless?
Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
Circumstantial evidence of guilty knowledge
- possession of recently stolen property
- nature of the property, ie 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 good in an unusual way
- concealment of property to avoid discovery
- removal of identifying marks or features
- steps taken to disguise property, ie 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 statements as to the source of the goods
- false statements as to the date of acquisition
- nature of explanation given, eg false or inconsistent or no reasonable explanation
- false denial of knowledge, existence etc.
Doctrine of recent possession
The doctrine of recent possession applies to receiving as well as to theft.
It is the presumption that, where the defendant acquired 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, eg burglary or robbery.
The doctrine applies only to cases where a defendant is found in possession of property recently stolen or obtained dishonestly.
Police acting as agents of recovery
- 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 (give consideration to a charge of conspiracy to receive).
- Police surveillance or observations of stolen property, such as a vehicle in transit or within a thief’s 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 restoration, but rendering the vehicle immobile may.
