Receiving Flashcards
What is the wording section 246 (1) CA61?
(Receiving)
Everyone is guilty who receives any stolen property or obtained by any other 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 obtained
What is section 246 (2) CA61?
(Received overseas)
If the property was obtained by an act outside of NZ that would be an imprisonable offence in NZ, the property is considered obtained by an imprisonable offence.
What is section 246 (4) CA61?
(Donelly)
Any property stolen has been returned to the owner
or legal title to any such property has been acquired by any person
Subsequent receiving of it is not an offence even if the receiver knew the property was stolen.
What are the elements of receiving?
Act of receiving
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 obtained.
Three elements required to satisfy act of receiving.
Property which has been stolen or obtained by an imprisonable offence
Defendant must received that property from another person
Defendant must received the property in the knowledge that it has been stolen or obtained or recklessly.
When is the act of receives complete?
As soon as the offender has possesion part or full or control over property or helps conceals, disposing of property.
Guilty knowledge at the point that the act of receiving is complete.
Does an offender need physical custody for offence to be completed?
Not necessary. It is sufficient if there is joint or sole possession or control over the property or where the person aids in concealment or disposal of the same
R V Cox Possesion
Possession has two elements
Physical - actual or potential physical custody or control
Mental - Knowledge and intent to exercise that control.
R V Cullen
Four elements of possession for receiving:
Awareness of where the item is
Awareness the item is stolen
Actual or potential control of item
Intention to exercise control over item
What must be proved for control over property in a place?
Must prove the receiver arranged for the property to be delivered there or
that on discovery of the property, intentionally exercised control over it.
What are the rules for the receivers agent having possession of the property?
Receiver may still exercise control over property even if property is with agent. Exercise of the control must be intentional.
R V Donnelly
(Title)
Any property stolen has been returned to the owner
or legal title to any such property has been acquired by any person
Subsequent receiving of it is not an offence even if the receiver knew the property was stolen.
What must be proved for assisting disposal concealment of property charge?
Must prove both actual assistance and guilty knowledge
Receiver doesn’t need to have physically dealt with property
Acting as intermediary in the sale of property is sufficient as long as it can be shown the defendant acquired the property
Define property?
Includes real and personal property
R V Lucinsky
Property received must be stolen or illegally obtained and had been exchanged or proceeds from the stolen property was made.
Define taking?
For tangible property, theft is committed by taking when the offender moves the property or causes it to move.
What situation is property obtained not considered dishonestly obtained?
When it is freely and voluntarily handed to an intermediary by the rightful owner before being dealt with illegally.
What situation does obtain not include?
Where goods have been lawfully acquired and then dishonestly converted to the thiefs own use
What are the rules in relation to conviction of the thief or obtainer as evidence?
You are able to rely on the conviction of the thief as proof of the offence relating to stolen property. Must prove conduct of mental elements against defendant.
How can title be voided?
Make a complaint to Police
Civil claim to seek a ruling form the circumstances provided
When is the property no longer considered stolen?
Once property has been re-acquired by legal owner
When legal title has been obtained by another person
R V Kennedy
(Stolen property)
Guilty knowledge of stolen property must exist at the time of receiving
Define knowing?
Knowing or correctly believing
What was held in Rex V Stone
Person who received property innocently but found out afterwards of stolen property is not liable for receives.
Is a person liable if they do not have knowledge of the offence from which the property was stolen?
Yes the receiver does not require knowledge of the offence.
Define recklessly?
Consciously and deliberately taking an unjustifiable risk
R V Cameron Reckless
The defendant recognized a real possibility that his or her actions would bring a prescribe result
the circumstances existed and
having regard that to that risk those actions were unreasonable
Examples of circumstantial evidence of guilty knowledge?
(Receiving charge)
Mode of payment
Purchased at gross undervalue
Lack of original packaging
Secrecy in receiving the property
What are the rules around the original thief giving evidence against the receiver?
It is possible however will only be compelled to give evidence against the receiver if its separate and the the original thief’s charge has concluded
What is the doctorine of recent possesion?
Allows for proof of threat or receives by circumstantial evidence.
Only applies if the thief is found in possession recently in stolen or obtained but not to concealing or disposing property.
What does ‘is the possession recent’ depend on?
Nature of the property
Surrounding circumstances
Rules regarding receives from an unknown person?
Charges may be laid if receiving from an unknown person in circumstances where it is not known who committed the offence.
What are the rules around Police acting as agents for stolen property?
Police are deemed to have implied authority from owner when a complaint is made. Police possession also equates to returning property to owner. Surveillance does not constitute possesion.
What are the rules regarding receiving property outside of NZ?
It is an offence in NZ if the receiving of the stolen property occurred in NZ
