Receiving

Question 1

Receiving s246 C.A 61

Answer 1

1. Guilty who receives any property, stolen or obtained by imprisonable offence, knowing property stolen or obtained or being reckless to fact.
2. Property obtained by act outside NZ, that would be offence in NZ, is being regarded as being obtained by offence.
3. Act completed as soon as offender has possession or control over property or helps conceal or dispose of property.
4. If property returned to owner or legal title acquired, subsequent receiving is not an offence even if receiver knows previously stolen or obtained.
5. If person charged, and act of stealing/obtaining property happened outside NZ, presumed by act was an offence at place where act was done, unless defendant puts matter at issue.

Question 2

Punishment

Answer 2

s247 C.A 61
Everyone guilty is liable to:
a) if value over $1000, max imprisonment 7 years
b) if value $500-$1000, max imprisonment 1 year
c) if value under $500, max imprisonment 3 months.

Question 3

Elements - to be proved

Answer 3

Act of receiving
Any property
Stolen or obtained by imprisonable offence
Knowing at time was stolen/obtained, or
Being reckless to fact

Question 4

“Act of receiving”

Answer 4

1. Property must be stolen/obtained
2. Must have received from another.
3. Must have knowledge properly stolen/obtained

Question 5

When is act complete

Answer 5

s246(3) C.A 61
Complete as soon as offender has either exclusively or jointly possession or control of property, or helps in concealing or disposing of property.
NB: not necessary to have physical custody of property.

Question 6

Possession R v Cox

Answer 6

Possession involves 2 elements, the first being physical element, the actual or potential control or custody. Secondly the mental element, knowing that in physical custody or control and intent to exercise that possession.

Question 7

Possession for Receiving

Answer 7

Cullen v R
4 elements for receiving:
1. Awareness that item is where it is
2. Awareness item is stolen
3. Actual or potential control over item.
4. Intent to exercise control

Question 8

Control over property

Answer 8

Where property is located, prosecution must prove receiver arranged to be delivered there, alternatively, on discovering property intentionally exercised control over it. Intent to possess must still be satisfied.

Question 9

Assisting in concealing or disposing

Answer 9

Must provide actual assistance and guilty knowledge.
Need not have physically dealt with or actually obtained possession, acting as intermediary or assisting in sale for proceeds is sufficient if shown defendant acquired possession or control or aided in concealing or disposing.

Question 10

R v Donnelly

Answer 10

Offence must be legally possible.
Where stolen property returned to owner
Or legal title acquired, not an offence to subsequently receive it, even though receiver may know stolen/obtained

Question 11

Must prove dishonesty

Answer 11

Conflicting case law as to whether prosecution must prove element of dishonesty.
If received property with sole intent to return to owner or to police, then no offence committed.

Question 12

Property

Answer 12

s2 C.A 61
Any real or personal property or interest in any real or personal property, or money, electricity, debt. Includes tangible and intangible property.

Question 13

R v Lucinsky

Answer 13

Must be the same property stolen or obtained (or part thereof) and not some other item for which it was exchanged or which are the proceeds.

Question 14

Stolen or obtained

Answer 14

Stolen included to ensure offence encapsulated stolen by conversion.
Theft committed by taking when moves property or causes it to be moved.
Money obtained by sale of prohibited drugs will be obtained by imprisonable offence.
Prosecution must prove property in question was stolen or obtained

Question 15

Conviction is conclusive proof

Answer 15

s49 Evidence Act 2006
Conviction of individual is conclusive proof of persons guilt, therefore able to rely on conviction of their/obtained as evidence of property being stolen/obtained

Question 16

Concept of title

Answer 16

Oxford dictionary - right or claim to ownership of property. Title or ownership is legal right to possession of property.
Title obtained by deception is willingly provided.

Question 17

Voidable title

Answer 17

If obtained by deception is referred to as voidable. Until title is voided then deceiver has title to property and able to transfer title to anyone subsequently acquiring in good faith.

Question 18

“Knowing” property stolen/obtained

Answer 18

Simester and Brookbanks knowing or correctly believing. You may believe something wrongly but you cannot know something that is false.

Question 19

R v Kennedy

Answer 19

Guilty knowledge that thing stolen or obtained must exist at time of receiving, but doesn’t require knowledge of what offence from which the thing was obtained.

Question 20

Recklessness

Answer 20

Cameron v R
Reckless if recognised a real possibility that actions would bring about a proscribed result, and the proscribed circumstances exist And having regard to that risk the actions were unreasonable

Question 21

Circumstantial evidence of guilty knowledge

Answer 21

Possession of recently stolen property
Purchase at gross undervalue
Secrecy in receiving
Receipt at unusual place
Receipt at unusual time
Receipt in unusual way
Concealment to avoid discovery
Removal of ID features
Nature of explanation given
Mode of payment

Question 22

Direct evidence of guilty knowledge

Answer 22

Possible to call original thief/obtainer to give evidence, but only if being tried separately or proceedings already determined or concluded.

Question 23

Doctrine of recent possession

Answer 23

Presumption where acquired possession willingly, proof of possession of recently stolen or obtained property is evidence to justify belief that possessor is either thief or receiver
Inference may be drawn in circumstances where person found in possession recently soon after stolen or obtained.
Important where no other material evidence is available but presumption doesn’t arise until proof property stolen or obtained.
Only applied when defendant found in possession of property.
Recent depends on nature of property and surrounding circumstances.

Question 24

Police as agents

Answer 24

Deemed to have implied authority to recover/restore where complaint is lodged.

Question 25

Accessories after the fact and receivers.

Answer 25

s137 Criminal Proceedings Act 2011
Proceedings against :
1. Applies to everyone charged: party to, accessory, receiving
2. Everyone in ss1 may be proceeded against and convicted whether or not principal offender proceeded against/convicted
3. Everyone in ss1 may be proceeded against/convicted, alone or jointly with principal offence .
4. Any number of receivers of property or part thereof, may be charged and tried together

Question 26

Received from persons unknown

Answer 26

Charges may be formulated in respect of received from persons unknown if unable to determine who stole/obtained property

Question 27

Party to receiving

Answer 27

s66(1) C.A 61
Where thief delivers property to receiver, who knows stolen/obtained, thief is liable as party to