Receiving

Question 1

Receiving

Section 246, Crimes Act 1961

Answer 1

• 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 obtained

Question 2

What Must Be Proved

Answer 2

• Act of receiving
• Any property stolen, or
• Obtained by any other imprisonable offence knowing that at the time of the 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 3

The Act of Receiving

Answer 3

• 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 the possibility

Question 4

When the Act is Complete

Answer 4

As soon as the offender has either exclusively or jointly with the thief or any other person, gained possession of, or control over, the property or helps in concealing or disposing of the property.

Not necessary that the receiver take personal physical custody of the property in question.

Question 5

R v Cox - Possession

Answer 5

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 6

Cullen v R - Possession for Receiving

Answer 6

Four elements of possession for receiving:

(a) awareness that the items is where it is
(b) awareness that the item has been stolen
(c) actual or potential control of the item
(d) an intention to exercise that control over the item

Question 7

R v Donnelly - Legally Possible

Answer 7

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 8

Property

Answer 8

Real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt. Both tangible and intangible.

The offender must receive property which was stolen or obtained by an imprisonable offence.

No requirement that when received, the property be in the same condition or state as when first stolen, nor it is the whole of what was stolen.

Question 9

R v Lucinsky - Property

Answer 9

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 10

Stolen or Obtained by Any Imprisonable Offence

Answer 10

It is essential to a receiving charge that the prosecution prove the property in question was stolen or obtained by any other imprisonable offence, this proof may be direct or circumstantial

Question 11

Conviction of The Thief

Answer 11

You are able to rely on the conviction of the thief or obtainer as proof of the offence relating to the property stolen or obtained, Despite this you must still prove any conduct or mental elements of receiving against the defendant.

Question 12

Concept of Title

Answer 12

Title - A right or claim to ownership of property. When property is obtained by deception the offender gains both possession and title.

Voidable Title - Title obtained by deception. To void title the victim must bring about civil claim or advising police.

Question 13

R v Kennedy - Knowing

Answer 13

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

Question 14

Recklessness

Answer 14

Consciously and deliberately taking an unjustifiable risk. A deliberate decision to run the risk.

May also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 15

Cameron v R - Recklessness

Answer 15

Recklessness is established if:

(a) the defendant recognised that here 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

Question 16

Circumstantial Evidence of Guilty Knowledge

Answer 16

• Possession of recently stolen property
• Purchase at a gross undervalue
• Secrecy in receiving the property
• Absence of receipt
• Concealment of property to avoid discovery
• Steps taken to disguise property
• Lack of original packaging
• Nature of explanation given or false denial of knowledge

Question 17

Evidence of Guilty Knowledge

Answer 17

It is possible to call the original thief/obtainer to give evidence against the receiver. Only if the associated defendant is being tried separately from the defendant of the proceeding against the associated defendant has been determined/concluded.

Question 18

Doctrine of Recent Possession

Answer 18

Allows for proof of theft or receiving by way of circumstantial evidence. In circumstances where a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief.

Doctrine is important where no other material evidence is available. It applies only to cases where the defendant is found in possession of the property. Whether possession is recent is dependent on the nature of the property & surrounding circumstances.

Question 19

Party To Receiving

Answer 19

Where a thief delivers stolen property to a receiver who, to his knowledge, is aware that the property has been dishonestly obtained, the thief is liable as a party to that receiving that has been committed by the receiver.