Receiving Flashcards
Receiving
RECEIVES
Property stolen/ obtained by imprisonable offence.
Defendant has “received” the property which requires that the receiving must be from another.
Received with knowledge that it has been stolen or illegally obtained or reckless to that possibility.
Act is complete as soon as the offender has either obtained possession or control over or helps in its concealing or disposing of the property.
R v Cox
Possession - Physical - Actual or potential custody or control. Mental element - knowledge and intention - knowledge is the sense of awareness by the accused that the substance is in his possession and an intention to exercise possession.
R v Cullen - 4 elements of possession for receiving
- Awareness that the item is where it is
- Awareness that the item has been stolen
- Actual or potential control of the item and
- An intention to exercise that control over the time
R v Donnelly
Must be legally possible - if that accused receives legal title or property is returned to owner and later sold they cannot be charged with receiving. Even if the receiver may know that the property had previously been stolen or dishonestly obtained.
ANY STOLEN PROPERTY OR OBTAINED BY ANY OTHER IMPRISONABLE OFFENCE
Property - S2 ca1961 - any real or personal property and any estate or any interest in any real or personal property.
Theft stealing - S2 219 ca1961 - theft is committed by a taking when the offender moves the property or causes it to be moved.
Obtained by any other imprisonable offence:
S240 obtained by deception, money obtained from the safe of drugs (obtained by another imprisonable offence).
R v Lucinsky
The property received must be stolen or illegally obtained and not some other item for which the illegally obtained had been exchanged for or which are the proceeds.
KNOWING THAT AT THE TIME OF RECEIVING THE PROPERTY THAT IT HAD BEEN STOLEN OR BEING RECKLESS AS TO WHETHER OR NOT THE PROPERTY HAD BEEN STOLEN OR SO OBTAINED.
Knowing - Simester and brookbanks - knowing or correctly, believing - the defendant may believe something wrongly but cannot know something that is false.
R v Kennedy - Guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Reckless as to whether …
Deliberately took an unjustified risk
R v Cameron - recklessness is established if - the defendant recognized that there was a real possibility that:
a) His or her actions would bring the proscribed result and or,
b) proscribed circumstances existed and having regard to that risk those actions were unreasonable.
Receiving Case Law
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.
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.
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.
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.
Cameron v R
Recklessness is established if:
a) the defendant recognised that there was a real possibility that:
1) his/her actions would bring about the
proscribed result; and or
2) that the proscribed circumstances existed;
and
b) having regard to that risk those actions were unreasonable.
Receiving Summary
The act of receiving is complete once the defendant has:
- either exclusively or jointly with the thief or any other person possession or control, or
- has assisted in the concealment or disposition of the property.
- If there is guilty knowledge at that point, the offence is complete.
Possession can be described as an:
- awareness that the item is where it is;
- awareness that the item has been stolen;
- actual or potential control of the item; and
- an intention to exercise that control over the item.
Where property has been restored, directly to the owner or via police acting as the owner’s agent, there can be no subsequent receiving , this is because the property is deemed no longer stolen.
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 proceeds.
Where property is obtained by deception the deceiver usually gains both possession and (voidable) title to the property concerned, however where property is stolen they gain possession only.
To avoid title the person deceived must:
- communicate directly with the deceiver, or
- take all reasonable steps possible to bring it to the notice of the deceiver, or
- advise police of the circumstances of the deception.
Recklessness can be described as the defendant being aware of a risk that the goods were stolen ot obtained by an offence, where the risk is an unreasonable one to disregard.
