Receiving

Question 1

Section and Penalty

Answer 1

CA61; S246(1)

7 Years Imp (Exceeds $1000)
1 Year Imp ($500 - $1000)
3 Months Imp (Under $500)

Question 2

Elements

Answer 2

1. Receives
2. Any property stolen OR obtained by any other imprisonable offence
3. Knowing the property to be stolen or so obtained OR being reckless whether or not the property had been stolen or so obtained.

Question 3

Receiving elements - what is required to be proved?

Answer 3

• 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 4

Explain what three elements need to be satisfied regarding the “Act of Receiving”?

(SRK)

Answer 4

• 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 to that possibility.

Question 5

R v Ma - necessity to negative the accused’s explanation

(Mah God man! What a bullshit excuse)

Answer 5

“There is effectively an overarching additional mental element to the offence. It will be necessary for the Crown to negative the accused’s explanation. It must satisfy the jury beyond reasonable doubt that the altruistic explanation (whatever it may be) is untrue.”

Question 6

Legislation

When is receiving complete

Answer 6

CA61; S246(3)

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 7

R v Cox

Possession

Answer 7

R v Cox

“Possession involves two … elements. The first, often called the physical element, is actual or potential physical custody or control. The second element, often referred to as 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 8

Cullen v R

(Christian Cullen, the receiver, in possession of a stolen rugby ball - knowing where it is; aware it has been stolen; actual or potential possession over it; intends to exercise control over the rugby ball)

Answer 8

Cullen v R

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 9

What are the two areas that the Cullen test are divided into?

Answer 9

1. Guilty knowledge
2. Control of the item

Question 10

Person is unaware of the existence of property.

Answer 10

If a person is unaware of the existence of the property, they cannot be said to be in possession of it.

Question 11

Control over property

Answer 11

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 12

R v Donnelly

Not an offence to receive

Answer 12

R v Donnelly

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, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

Question 13

Proving dishonesty - Crooks and Marshall

Answer 13

R v Crooks - there is an implied requirement that the accused act with a dishonest intention.

R v Marshall - People knowingly receiving stolen property with the sole unconditional intention of returning it to the lawful owner or to Police commit no offence.

Question 14

Property

Answer 14

CA61; S2

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

Includes both tangible and intangible property.

Question 15

R v Lucinsky

Answer 15

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 16

Taking

Answer 16

When the offender moves the property or causes it to be moved.

Question 17

Theft elements

Answer 17

1. Dishonestly - Acting without a belief that there was express or implied consent from a person entitled to give such consent or authority
2. Without claim of right - a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
3. Takes - When the offender moves the property or causes it to be moved.
4. Property - CA61; S2: includes real and personal property, and any estate or interest in any real or personal property, (electricity, money, debt), and any thing in action, and any other right or interest
5. With intent to deprive any owner permanently of that property or of any interest in that property - includes an intent to deal with property in such a manner that— (a) the property cannot be returned to any owner in the same condition; or (b) any owner is likely to be permanently deprived of the property or of any interest in the property.

Question 18

Obtain

Answer 18

To obtain or retain for himself or herself or for any other person.

Question 19

Concept of title

Answer 19

Title:
A right or claim to the ownership of property.

Question 20

The difference between deception and theft re: title.

Answer 20

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

Question 21

Voidable title

Answer 21

A title obtained by deception, fraud, duress or misrepresentation is called a ‘voidable title’.

This means that the title can be voided by the seller.

Until the title is voided, the defrauder has voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.

Question 22

How to void title (according to the deception module)

Answer 22

• Communicate with the offender
• Take all other possible steps to bring it to offender’s notice, eg by writing a letter
• Advise the police that the item was obtained by deception

Question 23

S246(4) - effect

Answer 23

When 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 another person.

Question 24

‘Knowing’ that property to have been stolen or so obtained

S&B + Kennedy

(Glad I’m not a Kennedy - he has the necessary guilty knowledge)

Answer 24

Simester and Brookbanks:
‘Knowing’ means knowing or correctly believing. A defendant may believe something wrongly but cannot ‘know’ something that is false.

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

Question 25

Imprisonable offence

Answer 25

Any act or omission punishable on conviction under any enactment

Question 26

Rex v Stone

Answer 26

A person who receives innocently does not commit a receiving offence if they retain the property dishonestly after acquiring such knowledge, although such retention may amount to theft by dishonestly dealing with the property.

Question 27

Reckless as to whether or not the property had been stolen or so obtained

Recklessness - Cameron/Tipple/Briggs

Answer 27

Cameron v R:

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; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable

**

R v Tipple:

Recklessness requires that the defendant 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.

**

R v Briggs:

As with a receiving charge under s246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 28

Circumstantial Evidence of Guilty Knowledge

(PNGs … greatest ever Rugby League Player - Adrian Lam)

Answer 28

• Possession of recently stolen property
• Nature of the property
• Purchase at a Gross undervalue
• Secrecy in receiving the property

Question 29

Direct evidence of guilty knowledge

Answer 29

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

However they are only compellable if they are being tried separately or their proceedings have been determined.

Question 30

Whether possession is ‘recent’ is dependant on …

Answer 30

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

Question 31

List some instances of when Police acting as agent would have restored property to the rightful owner

Answer 31

• Rendering a stolen vehicle immobile
• Inspection and recovery of a stolen car
• Stolen property that has been identified (recovered) by Police.

Question 32

Receiving from persons unknown

Answer 32

Charges may be formulated in respect of receiving from ‘persons unknown’ in circumstances where it is not known who committed the offence.

Question 33

Property stolen to order

Answer 33

In this situation the receiver is liable as a party to the principal offence, pursuant to 66(1) rather than as a receiver under S246.

Question 34

Party to receiving

Answer 34

A thief who delivers stolen property to a receiver is liable as a party to that receiving.

Question 35

Explain how possession of property can be established in a charge of receiving.

Answer 35

Possession can be established by showing that the property is:

• In the immediate physical custody of the receiver; or
• At a location, over which the receiver has control (such as their place of business or private residence).

Question 36

What is the doctrine of recent possession?

Answer 36

It is the presumption that the possession of recently stolen property is, in the absence of a satisfactory explanation, evidence to justify a belief and find that the possessor is either the thief or receiver, or has committed some other offence associated with the theft of the property.

Question 37

What was held in the case of R v Lucinsky as it relates to receiving?

Answer 37

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 38

When is the act of receiving complete?

Answer 38

The act of receiving is complete once the defendant has:

• either exclusively or jointly with the thief or any other person -
• possession or control of the property; or
• has assisted in concealing or disposing of the property.

If there is guilty knowledge at that point - the offence is complete.

Question 39

What definitions and/or case laws should be included in your discussion of the liability of:

Receiving

Answer 39

Definition of intent: 2 specific types of intent; R v Collister;

Definition of receives: R v Ma; How the property was ‘received’. The act of receiving requires the satisfaction of three elements (SRK); When receiving is complete (S246(3);

Definition of possession: R v Cox; Cullen v R;

Offence must be legally possible: R v Donnelly;

Definition of property: CA61, S2; R v Lucinsky;

Definition of theft or stealing: CA61; S219(1-4)

Definition of obtain: To obtain or retain for himself or herself or any other person;

Definition of imprisonable offence: Any act or omission punishable on conviction under any enactment.

Definition of knowing: S&B; R v Kennedy;

Definition of recklessness: R v Briggs; Cameron v R; R v Tipple;