Receiving

Question 1

Section 246(1), Crimes Act 1961

Answer 1

(1) Receives
(2) Any property stolen OR obtained by any other imprisonable offence
(3) Knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property has been stolen or so obtained

Question 2

Elements of receiving

Answer 2

(1) There must be property which has been stolen or obtained by an imprisonable offence
(2) Defendant must have “received” that property
(3) Defendant must receive that property in the knowledge that is has been stolen or illegally obtained or being reckless as to that possibility

Question 3

Proof of dishonesty

Answer 3

Usually no need to prove dishonesty, except if it is necessary to negative the accused’s explanation

Question 4

When is receiving complete?

Answer 4

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

If there is guilty knowledge at the point that the act of receiving is complete, then the offence of receiving has been committed

Question 5

R v Cox (Possession)

Answer 5

Possession involves two elements - physical and mental. The physical element involves actual or potential custody or control, and the mental element involves a combination of knowledge and intention. Knowledge in the sense of awareness of the substance in their possession, and an intention to exercise possession

Question 6

Cullen v R (Elements of possession for receiving)

Answer 6

The four elements of possession for receiving are:
(1) Awareness that item is where it is
(2) Awareness that the item has been stolen
(3) Actual or potential control of item, and
(4) Intention to exercise that control over the item

Question 7

Assisting in disposal or concealment of stolen property

Answer 7

Must prove guilty knowledge and actual assistance of the stolen property

e.g. person who assists with the sale of stolen property, without physically dealing with it, is still a receiver

Question 8

R v Donnelly (receiving - legally possible)

Answer 8

Where stolen property has been returned to the owner or legal title has been acquired, it is not an offence to subsequently receive it, even if the receiver knows that the property was stolen or dishonestly obtained

Question 9

Property

Answer 9

Any real and personal property, 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

Question 10

R v Lucinsky (property received - property stolen)

Answer 10

The property received must be the property stolen or illegally obtained

(example of stealing $100 note and changing into five $20 notes)

Question 11

“Stolen”

Answer 11

Meaning theft or stealing.

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved

Question 12

Section 49, Evidence Act 2006

Answer 12

The conviction of an individual is conclusive proof of one’s guilt - propensity evidence should be relied upon as proof of the offence

Question 13

Title

Answer 13

Legal right to the possession of that property

Made up of possession and title

Consent = title
No consent = no title

Question 14

Voidable title

Answer 14

Title that can be voided by the seller. Until title has been voided, the receiver still has title and can confer good title on to anyone who acquires it in good faith

Question 15

Proving knowledge

Answer 15

Inferences from the circumstances (includes circumstantial evidence)

Question 16

R v Kennedy (guilty knowledge at time of receiving)

Answer 16

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

Question 17

Recklessness

Answer 17

Consciously and deliberately taking an unjustifiable risk

Question 18

Cameron v R (recklessness)

Answer 18

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 exist, and

(b) having regard to that risk, those actions were unreasonable

Question 19

Doctrine of recent possession

Answer 19

It is the presumption that where the defendant acquired possession willingly of property recently stolen (in the absence of satisfactory explanation), this is evidence to justify a belief and finding that the possessor is either the thief or receiver

The doctrine allows for proof of theft or receiving by way of circumstantial evidence

Only applies where a defendant is found in possession of property recently stolen or obtained by deception

Question 20

Section 137(4), Criminal Procedure Act 2011

Answer 20

(4) If any property has been stolen or dishonestly obtained, any number of receivers at different times of that property (or any part/parts of it) may be charged with substantive offences, and may be tried together

Question 21

Property stolen to order

Answer 21

The receiver is liable as a party to the principal offence (i.e. burglary)

Question 22

Property obtained outside of NZ

Answer 22

Receiving property that was obtained by an act committed overseas is an offence in NZ only if the receiving takes place in NZ

Property obtained by any act committed outside of NZ that would constitute an imprisonable offence if carried out in NZ, is to be regarded as having been obained by an imprisonable offence

Question 23

Parties to receiving

Answer 23

Where a thief delivers stolen property to a person who is aware that the property has been dishonestly obtained, the thief is liable as a party to that receiving

Question 24

What are the penalties to receiving?

Answer 24

Under $500 - three months imprisonment
$500-$1000 - one year imprisonment
Over $1000 - 7 years imprisonment