Receiving

Question 1

Caselaw - Receiving

Answer 1

R v Lucinsky, Cameron v R, R v Donnelly, R v Cox, Cullen v R

Question 2

Receiving - Legislation

Answer 2

Section 246 Crimes Act 1961
(1) Receives, any property, stolen 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 so obtained.
(2) Property that was obtained by any act committed outside of NZ that, if it had been committed in NZ would have constituted an imprisonable offence is, subject to ss(5) to be regarded as having been obtained by an imprisonable offence.
(3) The act of receiving any property stolen or obtained by any other imprisonable offence is complete 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.
(4) If, a) property has been returned to owner, or b) legal title to such property has been acquired by any person - A subsequent receiving of it is not an offence, even though the receiver knows that the property had previously been stolen or obtained by an imprisonable offence.
(5) If a person charged with this offence and the property was obtained by an act committed outside of NZ it is presumed, unless the person charged puts the matter at issue, that the doing of the act by which the property was obtained was an offence under the law of the place where the act was done.

Question 3

Punishment for receiving

Answer 3

Section 247 Crimes Act 1961
Everyone guilty of receiving is liable as follows:
(a) Value exceeds $1000, imprisonment not exceeding 7yrs,
b) Value exceeds $500 but not $1000, imprisonment 1 year,
c) Value doesn’t exceed $500, imprisonment not exceeding 3months.

Question 4

Act of receiving

Answer 4

Satisfaction of three elements:
- There must be property that has been stolen, or obtained by an imprisonable offence.
- The defendant must have ‘received’ that property from another person.
- Must have knowledge that the property was stolen or illegally obtained, or reckless as to that.

Question 5

The act of receiving is complete when?

Answer 5

246(3)
Complete as soon as the offender has either exclusively or jointly with the thief or any other person, gained possession of, or control over the property or helps in concealing or disposing of the property.

(If there is guilty knowledge at the point that the act of receiving is complete, then the offence of receiving has been committed)

Question 6

Possession - Caselaw

Answer 6

R v Cox
Possession involves two elements - Physical element (Actual or potential possession) and mental element (combination of knowledge and intention. Knowledge in the sence of awareness that the item was in his possession and intention to exercise possession)

Question 7

Possession for receiving - Caselaw

Answer 7

Cullen V R
There are four elements of possession for receiving:
- awareness the item is where it is,
- awareness the item has been stolen,
- actual or potential control of the item, and,
- an intention to excersise that control over the item.

Question 8

Control over property - Receiving

Answer 8

Prosecution must prove that receiver intentionally exercised control over the property and intent to possess it.
Control of property may still exist when property is in possession of the receiver agent or servant (includes an innocent agent/servant), and intent to control must be excesised.

Question 9

Assisting in disposing or concealing property- Receiving

Answer 9

Prosecution must prove both actual assistance and guilty knowledge.

Question 10

The offence must be legally possible - Caselaw - Receiving

Answer 10

R v Donnelly
Where stolen property has been returned or title had been acquired, no offence to then receive it.

Question 11

Define - Property

Answer 11

Real and personal property, belonging to…
Includes both tangible and intangible property.

Question 12

Receiving that actual property stolen - Caselaw

Answer 12

R v Lucinsky
The property received must be the property stolen or illegally obtained (or part of) and not some other item for which the illegally obtained property had been exchanged for or proceeds of.

Question 13

Concept of title - Define

Answer 13

Defined as meaning a right or claim to the ownership of property. Title or ownership of property is the legal right to possession of that property.

Question 14

Voidable title - Define

Answer 14

Title obtained by deception is referred to as voidable title. This means title can be voided by the seller (complainant).

Question 15

Knowing that property to have been stolen or so obtained - Caselaw

Answer 15

R v Kennedy
The guilty knowledge that the thing has been stolen or Dishonestly obtained must exist at the time of the receiving.

Question 16

Knowledge that property has been stolen or so obtained.

Answer 16

Knowing or correctly believing. The belief must he a correct one, where the belief is wrong a person can not know something.

Question 17

Reckless as to whether the property had been stolen or so obtained. Define reckless

Answer 17

A conscious and deliberate taking of an unjustified risk.
Aware of the risk and proceeded anyway, unreasonable to do so.

Question 18

Reckless - Caselaw

Answer 18

Cameron v R
Is established if, defendant recognized that there was a real possibility that, his/her actions would bring about the proscribed result, and/or, that the proscribed result existed, and, having regard to that risk, actions were unreasonable.

Question 19

Knowledge may also be inferred from…

Answer 19

Wilful blindness or a deliberate lack from making inquiries that would confirm the suspected truth.

Question 20

Circumstantial evidence of guilty knowledge. - Receiving

Answer 20

Circumstances commonly relied on as evidence of guilty knowledge include:
- possession of recent stolen property
- nature of the property, i.e., type value, quantity
- purchase at a gross under value
- secrecy in receiving the property
- receipt of goods at unusual time and place,
- concealment of property to avoid discovery
- removal of identifying marks or features
- steps taken to disguise property
- lack of original packaging
- mode of payment
- absence of receipt

Question 21

Can you charge for receiving when original offender is unknown? Eg. Thief is u/k

Answer 21

Yes, providing all elements of the offence can be proved.

Question 22

Property stolen to order, what are they liable for?

Answer 22

Parties to 66(1) rather than a receiver 246.

Question 23

Property obtained outside NZ. Is it an offence?

Answer 23

Receiving property that was obtained by any act outside NZ, is an offence in NZ if receiving takes place in NZ.
If the act that was committed, had been committed in NZ, it would be an imprisonable offence in NZ. 246(2)
246(5) - presumed that the act in which property was obtained, was an offence under that law of the place where committed.

Question 24

What section and subsection to use if property value is unknown for the property received?

Answer 24

Same section as if value is nominal.
247(c) If value does not exceed $500, imprisonment for a term not exceeding 3months.