Receiving

Question 1

What are the must know cases for Receiving? (Liability)

Answer 1

• R v Cox
• Cullen v R
• R v Donnelly
• R v Lucinsky
• R v Kennedy
• Cameron v R

Question 2

What are the section and elements of receiving? (Liability)

Answer 2

s246(1) Crimes Act 1961

• Receives
• 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 3

Define receives (Liability)

Answer 3

Three elements:
- There must be property which has been stolen or obtained by an imprisonable offence.
- The defendant must have “received” that property, which requires that the receiving be from another person.
- The defendant must receive that property knowing that it has been stolen or illegally obtained or being reckless as to that possibility.

You must also prove possession.

Question 4

When is the offence of receiving complete? (Must know)

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

Question 5

What is R v Cox (Liability)

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

What is Cullen v R (Liability)

Answer 6

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 7

If stolen property is at an address, what must you establish to show the occupant has control of the stolen property?

Answer 7

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 8

For a receiving charge, if you allege the defendant assisted in the disposal or concealment of stolen or dishonestly obtained property, what must you prove?

Answer 8

• Actual assistance
• Guilty knowledge

Question 9

Does the doctrine of recent possession apply to a receiving charge if you allege the defendant assisted in the disposal or concealment of stolen or dishonestly obtained property?

Answer 9

No

Question 10

Discuss legal possibility as it relates to receiving and cite case law. (Liability)

Answer 10

It must be legally possible to commit ht offence of receiving.

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 11

Define property? (Liability)

Answer 11

Property includes real and personal property, and 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 12

What is R v Lucinsky? (Liability)

Answer 12

The property received must be stolen or illegally obtained, and not some other item for which the illegally obtained property had been exchanged for or which are the proceeds.

Question 13

Can drug money be received under section 246(1)?

Answer 13

Yes as it is obtained by any other imprisonable offence

Question 14

Define theft (Liability)

Answer 14

Defined under s219 as Dishonestly, without claim of right, takes, any property with intent to deprive the owner permanently of that property

Question 15

Define “takes” for theft (Liability)

Answer 15

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

Question 16

Define obtains by deception (Liability)

Answer 16

By any deception and without claim of right obtained possession or control of any property, either directly or indirectly

Question 17

Is property received under s246 if it is freely and voluntarily handed over to an intermediary by the owner before being dealt with in an illegal manner?

Answer 17

No

Question 18

Can a conviction be regarded as conclusive proof of guilt for theft or obtains by deception, and thus the element of receives? Discuss

Answer 18

Yes, you may rely on the conviction of the theft or obtainer as proof of the original offence relating to the property being stolen or obtained. A judge may allow it to be contested in proceedings.

Question 19

Define title (Must know)

Answer 19

A right or claim to the ownership of property

Question 20

Discuss the passing of property title for property obtained by deception? (Must know)

Answer 20

Where property is obtained by deception, the obtainer gets voidable title, which can be voided by the seller (complainant). Although voidable, the obtainer still has title and can, before it is voided, confer the title to anyone else who acquires the property in good faith.

If this happens the innocent agent obtains good title to the property.

Question 21

How does a complainant void title? (Must know)

Answer 21

Bring a civil claim seeking an order from the Disputes Tribunal or Small Claim tribunal

Question 22

Can property that was stolen or obtained by deception, but has since been returned to the owner or good title obtained by any person, be received? (Must know)

Answer 22

No, even if the receiver knows it was previously stolen or obtained.

Question 23

What is R v Kennedy (Liability)

Answer 23

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

Question 24

Does a receiver of property need to know the particular imprisonable offence from which the property was obtained?

Answer 24

No, they need only know it was obtained by an imprisonable offence.

E.g. They may think it was obtained by deception, but it was actually stolen.

Question 25

Discuss knowledge as required by the accused of a receiving charge

Answer 25

The defendant must receive that property knowing that it has been stolen or illegally obtained or being reckless as to that possibility. Knowledge may be inferred from wilful blindness and in that case use the recklessness test.

Question 26

Discuss R v Cameron (Liability)

Answer 26

Recklessness is established if:
- The defendant recognised that there was a real possibility that his or her actions would bring about the proscribed result, and or the proscribed circumstances existed, and having regard to that risk those actions were unreasonable

Question 27

List examples of circumstantial evidence of guilty knowledge for receiving (Must know)

Answer 27

• Possession of recently stolen property
• nature of the property
• purchase at a gross undervalue
• secrecy in receiving 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

Question 28

Can you call a thief or obtainer as a witness against their associated receiver?

Answer 28

It is possible to call the thief or obtainer, however they will only be compilable if they are being tried separately or the proceeding against them has been determined or concluded.

Question 29

What is a indirect evidence type you should consider for receiving?

Answer 29

Propensity evidence

Question 30

What is the doctrine of recent possession? (Must know)

Answer 30

A presumption that where the Defendant acquired possession willingly, proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief they are either the thief, receiver or have committed some other offence associated to the property.

Question 31

When is the doctrine of recent possession important?

Answer 31

When there is no other material evidence available

Question 32

What circumstance is required for the doctrine of recent possession to apply?

Answer 32

The defendant must be found in possession of the property recently stolen or obtained dishonestly

Question 33

What will determine if possession of property is “recent” under the related doctrine?

Answer 33

• The nature of the property
• the surrounding circumstances

Question 34

Discuss Police acting as an agent

Answer 34

Police have implied authority from an owner to recover and restore property when a complaint is lodged. This means police recovering property equates to restoration of that property to the rightful owner.

Question 35

If Police inspect and recover a stolen car, is it deemed to be restored to the owner?

Answer 35

Yes, it is no longer deemed stolen.

Question 36

If it possible to receive property recovered by Police?

Answer 36

No, it is legally impossible

Question 37

Does observation of a stolen vehicle by Police amount to restoration of it to the owner?

Answer 37

No

Question 38

Does rendering a stolen vehicle immobile equate to restoration of it to the owner?

Answer 38

it may

Question 39

Can a person be charged for receiving property from an unknown person?

Answer 39

Yes providing the elements can be proven.

Question 40

If property is stolen to order, does the offender get charged with receiving? Elaborate

Answer 40

No. They are a party to the principal offence of theft

Question 41

Is receiving property obtained by a offence committed overseas an offence in NZ?

Answer 41

Yes, so long as the receiving takes place in New Zealand.

The offence overseas must be an offence in New Zealand. It is presumed the act is an offence in the place where the act occurred unless the defendant puts the matter in issue.

Question 42

Is a thief/obtainer a party to receiving if they pass the property to the receiver?

Answer 42

Yes so long as to his knowledge the receiver was aware the property was dishonestly obtained

Question 43

What determines the punishment for receiving?

Answer 43

The value of the property involved

Question 44

When does potential possession arise? (Must know)

Answer 44

When a person has the potential to have the thing in question in their control

Question 45

For receives do you need to prove dishonesty?

Answer 45

Dishonesty need not be proven, just knowledge that the property was stolen or obtained by an imprisonable offence or recklessness to that end.

Question 46

Receiving is always “had… what?

Answer 46

Had been!