Receiving

Question 1

What are the ingredients for Section 246 -‘Receiving’?

What is the penalty as under Section 247?

Answer 1

Receiving 
Section 247
Property > $1000 = 7yrs
Property $500-$1000 = 1yr
Property <$500 = 3 mths

1. Receives
2. Any property stolen OR obtained by any offence
3. Knowing the property to have been stolen or so obtained by any offence OR being RECKLESS as to whether or not the property had been stolen or so obtained.

Question 2

Case Law

R v Kennedy
R v Lucinsky

Answer 2

R v KENNEDY
The prosecution must prove an intent on the part of the receiver to possess the property.
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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.

Question 3

Case Law

R v Harney
R v Donnelly

Answer 3

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.”
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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.

Where property has been restored, directly to the owner or via police acting as the owner’s agent, there can be no subsequent receiving, this because the property is deemed no longer stolen.

Question 4

When is the act of Receiving complete?

Answer 4

THE ACT OF RECEIVING IS COMPLETE ONCE THE ACCUSED HAS:

− either exclusively or jointly with the thief or any other person possession or control, or
− has assisted in the concealment or disposition of the property
− If there is guilty knowledge at that point, the offence is complete.

Question 5

What is Constructive Possession?

Answer 5

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.

− Actual physical possession by the receiver is not required.

Question 6

Receives Section 246(3)

Answer 6

RECEIVES
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.

Question 7

Definition:

1. Possession AND Case Law - R v Kennedy
2. Recklessly

Answer 7

POSSESSION
Possession can be established by showing that the property is:
• in the immediate physical custody of the receiver, or
• at a location, over which the receiver has control (such as their place of business or private residence).
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R v KENNEDY
The prosecution must prove an intent on the part of the receiver to possess the property.
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RECKLESSLY
The conscious and deliberate taking of an unjustifiable risk. Being aware of the possible consequences and acting anyway. A knowledge of the risk and yet recklessly acting irrespective of that knowledge.

Question 8

What is Ideal Possession?

Warner v Metropolitan Police Commissioner

Answer 8

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.

Question 9

Definition - Property

Answer 9

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.

Question 10

Definition - Stolen

Answer 10

The word “stolen” was included to ensure that the offence of receiving encapsulated property stolen by conversion. The critical question will be whether the property was obtained by theft or by some other imprisonable offence.

Question 11

Definition:

1. Obtains
2. Guilty Knowledge

Answer 11

OBTAINS

GUILTY KNOWLEDGE
At the time of the assistance being given, an accessory must possess the knowledge that:
• an offence has been committed,
• the person they are assisting was a party (principal or secondary) to that offence.
and
Where this knowledge comes about following the rendering of the assistance they are not liable as an accessory.

Question 12

Definition

1. Value
2. Concept of Title

Answer 12

VALUE

The value of the property received determines the penalty that may be imposed.

Question 13

CONCEPT OF TITLE

Definition of Title

Answer 13

CONCEPT OF TITLE

TITLE
Title means ‘a right or claim to the ownership of property …’: Title or ownership of a thing is the legal right to possession of that thing.

Where property is obtained by DECEPTIVE means the offender gains both possession and title. However the type of title gained by the offender has limitations.
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TITLE IS PASSED TO THE OFFENDER in these circumstances, as the property is generally handed over to the offender by the owner, whereas with THEFT the property is taken without the consent of the owner and NO TRANSFER OF TITLE occurs.

Question 14

Explain ‘Voidable Title’

Answer 14

VOIDABLE TITLE
Title obtained by deception is referred to as ‘voidable title’.

This means that the title can be avoided by the seller (complainant). The issue is that although the title is voidable, it is still a title.
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UNTIL THE TITLE IS AVOIDED, the person committing the deception HAS TITLE to the property concerned and is ABLE TO CONFER A GOOD TITLE on to anyone who subsequently acquires the property from him in good faith
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This means that where an innocent party buys property that has been obtained by deception and before the title has been avoided, the innocent purchaser is said to have acquired good title to the property. Where the title is avoided prior to the purchase by the innocent party, they do not acquire title to the goods.

Question 15

Explain ‘Avoiding Title’

Answer 15

In order to avoid title one of the following must be completed:
• COMMUNICATING directly with the deceiver
• taking all reasonable and possible steps to bring it to the deceiver’s notice, eg sending a LETTER or EMAIL
• advising POLICE of the circumstances of the deception.
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The effect of s246(4) is that where title has not been avoided, a person who would otherwise be a receiver, cannot be convicted of receiving from a person who has voidable title to property acquired by deception.