Receiving Flashcards
Receiving - Act / Section
Crimes Act 1961 S246
Receiving
(1)
Every one is guilty of receiving who 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)
For the purposes of this section, property that was obtained by any act committed outside New Zealand that, if it had been committed in New Zealand, would have constituted an imprisonable offence is, subject to subsection (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)
any property stolen or obtained by any other imprisonable offence has been returned to the owner; or
(b)
legal title to any such property has been acquired by any person,—
a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen or obtained by any other imprisonable offence.
(5)
If a person is charged with an offence under this section and the property was obtained by an act committed outside New Zealand, it is to be 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.
Punishment
Crimes Act 1961
247 Punishment of receiving
Every person who is guilty of receiving is liable as follows:
(a)
if the value of the property received exceeds $1,000, to imprisonment for a term not exceeding 7 years:
(b)
if the value of the property received exceeds $500 but does not exceed the sum of $1,000, to imprisonment for a term not exceeding 1 year:
(c)
if the value of the property received does not exceed $500, to imprisonment for a term not exceeding 3 months.
Elements
-receives
- any property stolen or obtained by any other imprisonable offence
-knowing that at the time of receiving the property that 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.
Act of receiving - 3 elements
1) there must be properly which has been stolen or has been obtained by an imprisonable offence
2) the defendant must have received that property, which requires that the receiving must be from another (can’t be from yourself)
3) the defendant must receive that property in the knowledge that it has been stolen or illegally obtained or being reckless as to the possibility
When is the act of receiving complete?
246(3)
The act of receiving any properly stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusive or jointly with a thief or any other person, possession of, or control over, the property, or helps concealing or disposing of the property
Possession - case law
R V COX
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention-knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
Possession for receiving- case law
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
The offence must be legally possible- case law
R V Donnelly
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 dishonest obtained .
Property - definition
Section 2, crimes act 1961
Property includes real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt, and anything in action, and any other right or interest .
Property - case law:
R v Lucinsky
The property received must be the property stolen or illegally obtained (or part there of) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
Conviction- conclusive proof of guilt
Section 49 of the evidence act 2006 provides that the conviction of an individual is conclusive proof of that person’s guilt. You are therefore able to rely on the conviction of the thief or obtainer as proof of their offence relating to the property stolen.
Conviction - proof of guilt
Section 49 of the evidence act 2006 provides that the conviction of an individual is conclusive proof of that person’s guilt. You are therefore able to rely on the conviction of the thief or obtained as proof of their offence relating to the property stolen.
Title defined
Title is defined by the Oxford dictionary as meaning of right or claim to the ownership of property. Title or ownership of property is the legal right to position of that property.
Voidable title
Title obtained by deception is referred to as voidable title.
To void the title, the complainant must bring a civil claim seeking in order of the dispute tribunal or small claim tribunal.
Crimes Act 246(4)
If property is no longer deemed stolen - it can’t be received.
If—
(a)
any property stolen or obtained by any other imprisonable offence has been returned to the owner; or
(b)
legal title to any such property has been acquired by any person,—
Knowing that property -stolen or obtained - Case law
R v Kennedy:
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving .
Recklessness - Case Law
Cameron v R
Recklessness is established if :
A) the defendant recognised that there was a real possibility that:
I) his or her actions would bring about the proscribed result and / or
ii) that the proscribed circumstances existed, and
B) having regard to that risk those actions were unreasonable
Circumstantial evidence of guilty knowledge examples:
-possession of recently stolen property
-nature of the property, type, value, quantity
-Purchase at a gross under value
-Secrecy and receiving the property
-Receipt of goods at unusual place
-Receipt of goods at unusual time
-Concealment of property to avoid discovery
-Removal of identifying marks or features
-False statements as to the source of the goods or as to the date of acquisition
Doctrine of recent possession;
This applies to receiving as it does to theft.
It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor as either the thief or receiver.
FOUND IN POSSESSION
recent = based on nature of the property and the circumstances
To avoid title - deceived person must:
-communicate directly with the deceiver or
-take all reasonable steps possible to bring notice of the deceiver
-advise police of the circumstances of deception
-received
- any property stolen or obtained by any other imprisonable offence
-knowing that at the time of receiving the property that 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.
