Receiving Flashcards
Receiving
Section and Penalty
S246(1) CA61
7 Years Imp (Exceeds $1000)
1 Year Imp ($500 - $1000)
3 Months Imp (Under $500)
Receiving
Elements
- Receives
- Any property stolen OR obtained by any other imprisonable offence
- Knowing the property to be stolen or so obtained OR Being reckless whether or not the property had been stolen or so obtained
Legislation: When is receiving complete
S246(3) CA61
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
Possession
R v Cox
R v Cox - Possession involves two elements, Physical and Mental. Physical custody and control. Mental, knowledge and intent.
Cullen v R
Possession for receiving, four elements
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.
Cullen v R
What are the two areas that the Cullen test are divided into?
- Guilty knowledge
- Control of the item
R v Donnelly
Not an offence to receive
R v Donnelly
- stolen property returned to owner
- no offence to subsequently receive it
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.
Definition: Property
Define: Property
Sec 2 Crimes Act 1961
Property includes any real and personal property and any estate or interest in any real or personal property, money, electricity and any debt and any thing in action and any other right or interest.
R v Lucinsky
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.
Definition: Title
Title:
A right or claim to the ownership of property.
Definition: Voidable Title
A title obtained by deception, fraud, duress or misrepresentation is called a ‘voidable title’.
This means that the title can be voided by the seller.
Until the title is voided, the defrauder has voidable title, and can confer good title on anyone who acquires the goods from him or her in good faith and for value.
How to void title
- Communicate with the offender
- Take all other possible steps to bring it to offender’s notice, eg by writing a letter
- Advise the police that the item was obtained by deception
Taking
Legislation/meaning
S219(4) CA61
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
R v Kennedy
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Cameron v R
Cameron v R:
Offender knew actions would bring result and circumstances existed.
Note: Recklessly
Doctrine of Recent Possession
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.
Theft
Legislation
S219(1) CA61
- Dishonestly
- and without claim of right,
- takes
- any property
- with intent to deprive any owner permanently of that property or of any interest in that property
Circumstantial Evidence of Guilty Knowledge
- Possession of recently stolen property
- Nature of the property
- Purchase at a Gross undervalue
- Secrecy in receiving the property
Property stolen to order
In this situation the receiver is liable as a party to the principal offence, pursuant to 66(1) rather than as a receiver under S246.
What three elements need to be satisfied regarding the “Act of Receiving”?
- 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 to that possibility.
STOLEN, RECEIVED, KNOWLEDGE
Receiving S246(1)
What case laws and definitions for this liability?
1) Receives
Define: Intent: Deliberate act to get a specific result When receiving is complete S246(3) Possession: R v Cox; Cullen v R.
2) Any property stolen OR obtained by any other imprisonable offence
Offence legally possible: R v Donnelly Definition of property CA61 S2. R v Lucinsky Define theft S219(1)
3) Knowing the property to be stolen or so obtained OR being reckless whether or not the property had been stolen or so obtained.
Knowing Caselaw: R v Kennedy Define: Recklessly: Consciously and deliberately ran a risk Caselaw: Cameron V R: Offender knew actions would bring result and circumstances existed.
