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ASSOCIATION 89 > RECEIVING > Flashcards

RECEIVING Flashcards

1
Q

What is the section and penalty for Receiving? (2 different sections)?

A

Receiving CA61 s246

Punishment for receiving CA61 s247
(1) 3 months up to $500
(2) 1 year for over $500 and up to $1000
(3) 7 years for over $1000

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2
Q

Receiving (liability):

A

Receiving CA61 s246
(Insert correct penalty)

Act of Receiving
Any property stolen, or
Obtained by any other impressionable offence
Knowing at the time the property had been stolen or obtained by another imprisonable offence, or
Being reckless as to whether or not the property had been stolen or so obtained.

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3
Q

The act of RECEIVING require what THREE element:

A

(1) PROPERTY stolen or obtained
(2) Defendant must have received from ANOTHER PERSON
(3) KNOWLEDGE / RECKLESSNESS about how it was obtained

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4
Q

Does the Crown need to negative the accused Receiver’s explanation as untrue?

A

Yes. The Crown will need to show that the explanation given in defence is untrue.

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5
Q

When is the ‘act of receiving’ complete?

A

When the accused has:
(1) exclusive or joint POSSESSION or CONTROL
(2) Helps CONCEAL or DISPOSE the property.

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6
Q

When is guilty knowledge required for RECEIVING to be committed?

A

As along as there was knowledge at the point the receiving was complete.

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7
Q

Is it necessary that the RECEIVER take personal PHYSICAL custody of the property for the offence to be complete?

A

No. So long as there was exclusive or joint control.

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8
Q

What does COX say about POSSESSION?

A

Two elements:
(1) PHYSICAL, ACTUAL or POTENTIAL possession or control
(2) MENTAL, KNOWLEDGE it is in their possession and INTENTION to exercise that possession

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9
Q

Besides COX, what other case law lays out the elements for possession and what are they:

A

Cullen

(a) AWARENESS that the item is WHERE it is.
(b) AWARENESS item STOLEN
(c) CONTROL (actual / potential)
(d) INTENTION to exercise control.

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10
Q

Which case law is sometimes used as a TEAT for receiving?

A

Cullen

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11
Q

Can a receiver be considered to have control over the property if it is in possession of someone who is their agent or servant (even an unwitting one)?

A

Yes.

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12
Q

What 2 elements are required to prove for ‘Assisting in disposal or concealment of stolen property’?

A

(1) ACTUAL assistance
(2) Guilty KNOWLEDGE

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13
Q

Can an INTERMEDIARY be convicted of RECEIVING if they haven’t had PHYSICAL possession of the property? Why?

A

Yes. Because the minimum requirement is that:
(1) they had at least JOINT CONTROL, or
(2) They AIDED in concealing or disposing of the property.

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14
Q

What case law deals with RETURNED property or acquired LEGAL TITLE?

A

DONNELLY

Where stolen property has been returned to the owner
Or legal title 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.

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15
Q

If a person receives stolen property with the intention to return it, are they liable to RECEIVING?

What if they place conditions on its return?

A

No, not liable.
Yes, liable when conditions are applied.

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16
Q

What is the definition of PROPERTY?

A

Any real or personal property
Any estate or interest in
Any real and personal property,
Money, electricity, and
Any debt and
Anything in action, or
Any other right or interest.

17
Q

Is receiving complete if the property received is not COMPLETE or in its ORIGINAL state?

A

Yes.

18
Q

Is receiving complete if the property received is not the original item stolen?
What case law deals with this?

A

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.

19
Q

For RECEIVING to be complete, is it sufficient that the property was obtained LAWFULLY, but then dishonestly converted to the theifs own use?

A

No. The property must be obtained UNLAWFULLY (by any imprisonable offence).

The onus is on the prosecution to eliminate this defense beyond reasonable doubt.

20
Q

Can a CONVICTION be counted as proof of the offence.
What act and section refers to this?

A

Yes. Evidence Act 2006 s49

21
Q

What case law deals with a RECEIVER having GUILTY KNOWLEDGE at the time of receiving? And what does it say?

A

Kennedy

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

22
Q

If a person receives property innocently but AFTER acquiring such KNOWLEDGE retains it, are they guilty of receiving it?

A

No. Because they did not have the guilty knowledge at the time of receiving the property. However, they may be guilty of theft by dishonestly dealing with the property.

23
Q

What is the case law for RECKLESSNESS?

A

Cameron

Recklessness is established if:
The defendant RECOGNISED that there was a real possibility that:
His actions would bring about the proscribed result; and/or
That the proscribed circumstances existed; and
Having regard to that risk those actions were unreasonable.

24
Q

For the offence of Receiving, what are 5 examples of guilty knowledge demonstrated by CIRCUMSTANCES:

A

(1) Possession of RECENTLY stolen property
(2) NATURE of the property (type, value, quantity)
(3) purchase was of GROSS UNDERVALUE
(4) SECRECY in receiving the property
(5) Receipt of property at an UNUSUAL PLACE
(6) Receipt of property at an UNUSUAL TIME
(7) Receipt in UNUSUAL WAY
(8) CONCEALING the property
(9) Removal of IDENTIFYING Mark’s or features
(10) DISGUISE - painting

25
Q

What DIRECT evidence can be brought when prosecuting RECEIVING?

A

Calling the ORIGINAL thief to give evidence.

This can only happen if the thief is tried separately or their matter has already concluded.

26
Q

Can PROPENSITY evidence be brought against a receiver?

A

Yes.

27
Q

What is the DOCTRINE OF RECENT POSSESSION?

A

Circumstantial evidence of recent possession used to infer the person either stole or received the property.

28
Q

What is required before using the Doctrine of Recent Possession?

A

Proof that the property was STOLEN, or obtained by another crime.

29
Q

Can the Doctrine of Recent Possession be applied to CONCEALING or DISPOSING of property?

A

No.

30
Q

What 2 elements are relevant when deciding whether possession was RECENT, in circumstances where the Doctrine of Recet Possession is contemplated:

A

(1) the NATURE of the property, and
(2) the SURROUNDING CIRCUMSTANCES.

31
Q

If police seize property before the receiver is found to be in possession or control of it, can the receiver still be charged with receiving?

A

No. Most likely not, because if there is no proof prior to police seizing the property, then proof of receiving can’t be established after the property is returned. Police possession is regarded as returned property.

32
Q

What is required before the accused can be prosecuted for receiving from PERSONS UNKNOWN?

A

All elements of the ‘obtaining’ offence can be proved.

33
Q

Is a person who is found in possession of property ‘stolen to order’, liable to be charged with RECEIVING?

A

No. Not if they have been the one ordering the theft. Instead, they should be charged as a PARTY to the principal offence.

34
Q

Is it possible to be charged with receiving if the property was obtained outside New Zealand?

A

Yes, but the receiving must take place in NZ. Also, the property must have been obtained by NZ definition for theft or obtained by an act the would be imprisonable if done in NZ.

35
Q

What elements must be in place for a thief to be a PARTY to RECEIVING when he delivers the stolen property to a RECEIVER?

A

The thief must KNOW that the other person is a RECEIVER. Therefore, he KNOWS:

The other person is AWARE that the property is stolen.

36
Q

Is it necessary to include the value of received property in the charge wording? Why?

A

Yes. Because the value will determine the penalty.

If the value is unknown or nominal then make reference to s247(c), 3 months for property $500 or less.

ASSOCIATION 89 (12 decks)

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