Receiving Flashcards
Elements of Receiving
- Receives
- Any property stolen or obtained by anyother 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 so obtained
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 the act of receiving complete
s246(3)
The act of receiving any property stolen or obtained by another imprisonable offence is complete 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
What must be proven in relation to control over property
| Receiving
Where property is located at a place, over which the receiver has control, then the prosectuion must prove the receiver arranged for the property to be delivered there, or alternatively, that upon discovering the property, he or she intentionally exercised control over it.
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 - control must be intentional.
Discuss how receiving “must be legally possible” and reference case law
Per 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.
Discuss the concept of title
Title is a right or claim to the ownership of property. Title or ownership of a thing is the legal right to possession of that thing.
When property is obtained by deceptive means, the offender gains both possession and title. However, the type of title obtained by the offender (voidable title) has limitations.
Title is passed to the offender as the property is generally handed to the offender by the owner. This is as opposed to theft, where property is taken without consent of the owner, and no transfer of title occurs.
Define voidable title
Title obtained by deception is voidable title.
This means title can be avoided by the seller (complainant). The issue is that although the title is voidable, it is still title.
Avoiding title
In order to avoid title, the following must be completed:
- Communicating directly with the deceiver
- Taking all reasonable and possible steps to bring it to the deceiver’s notice e.g. sending a letter or email
- Advising Police of the circumstances of the deception.
Outline what was held in R v Cox regarding possession
Possession requires two elements - a physical element, and a mental element.
The physical element relates to actual or potential physical custody or control.
The mental element relates to knowledge and intention. The subject must both be aware that he is in possession of the thing, and an intention to exercise that possession.
Cullen v R - Four elements of possesion for receiving
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.
What was held in R v Lucinsky regarding the nature of property
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.
E.g. steal $100 note then change for 5x $20 notes - receiving of the new notes does not consitute an offence.
What was held in R v Kennedy regarding guilty knowledge
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Cameron v R
Recklessness is established if:
(a) the defendant knew 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.
Provide examples of circumstantial evidence of guilty knowledge
Know at least 8
Examples of circumstantial evidence of guilty knowledge:
- Possession of recently stolen property
- Nature of the property i.e. 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 goods in an unusual way
- Concealment of property to avoid discovery
- Removal of identifying marks or features
- Steps taken to disguise property i.e. removal / altering 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
Discuss the doctrine of recent possession
The doctrine of recent possession is a presumptation 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 e.g. burglary or robbery
