Receiving 2 Flashcards
Title
Voidable Title
Innocent party buying property from thief?
“A right or claim to ownership of property.”
Title or ownership of property is the LEGAL RIGHT to POSSESSION of that property.
Where property is obtained by deception, the offender gains both possession and title.
Title gained by deception is PASSED WILLINGLY to the offender - the property is exchanged willingly by the owner. With theft, the property is taken without consent and no transfer of title occurs.
Title obtained by deception is VOIDABLE TITLE - the title can be voided by the seller/complainant. Although voidable, it is still a title.
Until it is voided, the offender has title to the property and can confer title to anyone who acquires that property is good faith (innocent party then has good title).
How to void title?
The complainant must bring a civil claim seeking an order of the Disputes Tribunal or Small Claim tribunal and seek a ruling from the circumstances provided.
“Knowing that property to have been stolen or so obtained” - how is this established by prosecution?
R v Kennedy
Does an innocent receiver commit an offence?
The prosecution will, in general terms, rely on INFERENCES from the CIRCUMSTANCES to establish that the accused knew the property was stolen or obtained by imprisonable offence or was reckless as to that possibility at the time of receiving.
“The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
It was concluded in Rex v Stone that a person who receives innocently does not commit an offence under this section if he or she retains the property.
Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i) his/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 (17)
-possession of recently stolen property
-nature of the property, i.e. type, value, quantity
-purchase at a gross undervalue
-secrecy in receiving the property
-receipt of goods at an unusual place or time
-receipt in an unusual way
-concealment of property to avoid discovery.
-removal of identifying marks or features
-disguising property, i.e. removing/altering serial numbers, painting
-lack of original packaging
-type of person goods received from
-mode of payment
-absence of receipt when receipt would usually be issued
-false statements as to nature of goods
-false statements as to date of acquisition
nature of explanation given - false, inconsistent, not reasonable
-false denial of knowledge, existence.
Calling the original thief/obtainer to give evidence?
Judicial warnings?
It is possible to call them to give evidence against the receiver.
However, the original offender will only be compellable to give evidence against the receiver if tried separately, or the proceeding against the original offender has concluded.
If the only evidence against the receiver comes from the original thief/obtainer, a judicial warning as to a motive to lie may be required.
Doctrine of recent possession
When does the presumption arise?
When does the doctrine apply?
The presumption that, where the defendant acquired possession willingly,
the proof of possession by the defendant of the property recently stolen is, in absence of a satisfactory explanation,
evidence to justify a belief and finding that the POSSESSOR is EITHER the THIEF or RECEIVER, or has committed some other offence associated with the theft of the property, e.g. burglary or robbery.
- Presumption does not arise unless there is proof the property was stolen/obtained via crime.
- Applies only to cases where a defendant is FOUND in POSSESSION of property RECENTLY STOLEN/obtained via crime.
S 137 Criminal Procedure Act 2011
(1) Applies to parties, accessories and receivers.
(2) May be proceeded against whether or not the principal or any other party has been proceeded against or convicted.
(3) May be proceeded against alone as for a substantive offence OR jointly with the principal or other offender(s)
(4) Any number of receivers at different times of that property may be charged with substantive offences and may be tried together.
Receiving from persons unknown?
Property stolen to order?
Property obtained outside NZ?
Can still charge provided all elements are met.
Receiver is liable as a party to principal offence rather than as a receiver.
Offence under NZ law only if the receiving takes place in NZ.
Party to Receiving?
Where a thief delivers stolen property to a receiver who, to his knowledge, is aware that the property has been dishonestly obtained…
the thief is liable as a party to that receiving committed by the receiver.
