Receiving Flashcards
Receiving
What is the act and section (cite)
- *Section 246, Crimes Act 1961**
(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.
Receiving
What are the ingredients?
- 1 Receives
- 2 Any property
- 3 Stolen OR Obtained by any other imprisonable offence
- 4 Knowing that property to have been stolen or so obtained
OR being reckless as to whether or not the property has been stolen or so obtained
Receiving
Give act and section for punishment for receiving, and paraphrase the thresholds
Section 247, Crimes Act 1961
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.
Receiving
What is required to be proved?
The ingredients of receiving are:
- The act of receiving
- Any property stolen, or Obtained by any other imprisonable offence
- Knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence, or
- Being reckless as to whether or not the property had been stolen or so obtained.
The “Act of Receiving”
In just the ingredient of recieves what three elements must be proven?
- There must be property which has been stolen or has been obtained by an imprisonable offence.
- The accused must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself).
- The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility.(ie not find out later)
**Receiving **
When is the act of receiving is complete?
Cite the Section of CA61 that defines it
S246(3) Crimes Act 1961
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.
Possession
Define Actual and constuctive
Actual possession arises where the thing in question is in a person’s physical custody; it is on or about their person, or immediately at hand.
Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it.
Possession
Define ‘Ideal Possession’ using case law
Warner v Metropolitan Police Commissioner
Ideally, a possessor of a thing has complete physical control over it;
he has knowledge of its existence,
its situation and its qualities; he has received it from a person who intends to confer possession of it, and
he has himself the intention to possess it exclusively of others.
Possession
What is the case law that states :
“The prosecution must prove an intent on the part of the receiver to possess the property”
R v Kennedy
The prosecution must prove an intent on the part of the receiver to possess the property.
Assisting in disposal or concealment of stolen property
Assisting in disposal or concealment of stolen property. What must the crown prove?
1) That actual assistance was provided
2) That the defendant obtained full or partial possession of the item at the time
3) Guilty knowledge in thier actions
**Receiving **
Give case law for legal possibility re: receiving
R v Donnelly
Property
Define property as per Sec.2 CA61
Section 2, Crimes Act 1961
Interpretation
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
If the property is stolen or obtianed by an imprisonable offence is it a requirement the the received property must be in the same condition?
There is no requirement that, when received, the property be in the same condition or state as when first stolen, nor is there a requirement that the whole of what was stolen be received. Receiving a part of what was stolen will suffice.
Property
What is the case law relating to receiving items that were obtained in exchange for the original stolen / obtained items (eg money)
_R v 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.
Concept of title
Define ‘Title’
Define ‘voidable title’
Title means ‘a right or claim to the ownership of property …’:
Title obtained by deception is referred to as ‘voidable title’. This means that the title can be voided by the seller (complainant). The issue is that although the title is voidable, it is still a title.
Voidable title
Can someone be liable for recieving from a person who has voidable title, even if they know its fraudlanty obtained property?
No.
The offence of OBD of the car is not complete until the owner voides the title. The act of buying the car is not an offence until AFTER title is voided ie its legally impossible to recieve a car that the possessor has title to, however it is obtained
Knowing that property to have been stolen or so obtained
What is the case law for ‘guilty knowledge’ regarding recieving?
_R v Kennedy _
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Recklessly
Give the case law the defines recklessness
R v Harney
“[Recklessness involves] foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”
Recklessness
What are some common examples circumstantial evidence used to infer uilty knowledge when considering recieving
The circumstances commonly relied on as evidence of guilty knowledge on the part of a receiver can often be demonstrated circumstantially, for example, by:
- possession of recently stolen property
- nature of the property, ie type, value, quantity
- purchase at a gross undervalue
- secrecy in receiving the property
- receipt of goods at an unusual place
- receipt of goods at an unusual time
- receipt of good in an unusual way
- concealment of property to avoid discovery
- removal of identifying marks or features
- steps taken to disguise property, ie removal / altering of serial numbers, painting
- lack of original packaging
- type of person goods received from
Receiving - propensity
What are the rules around propensity evidence when prosecuting receiving?
Propensity evidence holds relevance to a receiving charge, and may, where permitted, be introduced as evidence in proceedings in relation to a receiving charge.
Receiving
What is the doctorine of recent possession?
When does it apply with receiving cases?
It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the 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, eg burglary or robbery.
The doctrine applies only to cases where an accused is found in possession of property recently stolen or obtained dishonestly
Police as agents
Recovered proeprty cannot be subsequently received by a reciever (although each case must be decided on its merits whether property identified as stolen has crossed the threshold into recovered eg spotting a car vs disabling it)
Give the case law regarding police as agents
R v Donnelly
Where stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained.
Receiving
Can you recieve from ‘persons unknown’?
Is the receiver of proerty stolen to order a reciever under Sec. 246 CA 61
or party to the theft under Sec. 66(1) CA61?
Yes
Party to theft under Sec. 66(1) CA61
**Party to receiving **
If a thief gives some property to a knowing reciever is the theif liable as party to the receieving?
**Party to receiving **
By virtue of s66(1) of the Crimes Act 1961, 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 that has been committed by the receiver.
