Receiving

Question 1

What are the ingredients of receiving?

Answer 1

• Act of receiving
• Any property stolen, OR
• Obtained by an 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.

Question 2

Penalties for receiving?

Answer 2

If the value of the property received is:

• Over $1000 = 7 years imprisonment
• $500 - $1000 = 1 year imprisonment
• under $500 = 3 months imprisonment

Question 3

What are the three elements required in a case of receiving?

Answer 3

1. There must be property which has been stolen or has been obtained by an imprisonable offence.
2. The accused must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself)
3. The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility.

Question 4

when is the act of receiving complete?

Answer 4

s246(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.

Question 5

R v Cox (1990) - MUST KNOW

Answer 5

Possession involves two elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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.

Question 6

Cullen v R (2013) - MUST KNOW

Answer 6

There are four elements of possession for receiving:

1. awareness that the item is where it is.
2. Awareness that the item has been stolen.
3. Actual or potential control of the item; and
4. An intention to exercise that control over the item.

Question 7

Physical control of an item in receiving is actual or potential control, describe both of these.

Answer 7

Actual control: arises where the thing in question is in a person’s physical custody or control.

Potential control: arises when the person has the potential to have the thing in question in their control. ie storing the thing in question at an associate’s house or through an agent.

Question 8

Describe the mental element of possession in regards to receiving

Answer 8

The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item.

Question 9

Does assisting in disposal or concealment of stolen property count as receiving it? if so, why?

Answer 9

Yes. Because the person has

Question 10

Define: property

Answer 10

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.

Note: the scope of the definition covers both tangible and intangible property.

Question 11

R v Lucinsky (1935) - MUST KNOW

Answer 11

The property received must be the property stolen or illegally obtained (or part thereof), and not some other items for which the illegally obtained property had been exchanged or which are the proceeds.

ie the receiver must receive the property which was stolen, or a part of it. There is no requirement that it must be the all of the stolen property, or it be in the same condition as when it was stolen.

However if a thief steals $100 in $20 notes, then changes the notes at a bank for different denominations. Then exchanges the new funds with a ‘receiver’, this is NOT receiving as it was not the original stolen property.

Question 12

discuss property ‘stolen’ or ‘obtained by any imprisonable offence’ in regards to stolen property in receiving

Answer 12

‘Stolen’ means - a “taking” when the offender moves the property or causes it to be moved.

‘Obtained by any imprisonable offence’ means - Can apply in many different contexts. This can include money that was obtained by the dealing of drugs (obtained by an imprisonable offence).

The majority of cases with be property either stolen, or obtained by deception.

Question 13

Describe s49, Evidence Act 2006

Answer 13

s49, Evidence Act 2006 states that a conviction is proof of someone’s guilt. Therefore it can be relied on as proof of the offence relating to the property stolen or obtained.

Question 14

R v Kennedy (2001) - MUST KNOW

Answer 14

The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.

Question 15

Rex v Stone (1920)

Answer 15

It was concluded in this case that a person who innocently receives property DOES NOT commit an offence of receiving if they continue to hold onto the property after learning later on that it was in fact stolen.

Although may be liable for a theft charge…

Question 16

Define: Reckless - in regards to being reckless as to whether property was stolen

Answer 16

Recklessness is not defined by statute, however:
A person is reckless if:
(a) Knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, AND
(b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.

It must be proven that the defendant knew there was a risk, and proceeded anyway (subjective test), AND also that it was unreasonable for him to do so (objective test).

Question 17

R v Brigs (2009)

Answer 17

This case found that knowledge under s246(1) may also be inferred from a wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 18

R v Harney (1987)

Answer 18

Recklessness means the conscious and deliberate taking of an unjustified risk, in New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue to the course of conduct regardless of risk.

Question 19

List some circumstances commonly relied on by the prosecution to prove guilty knowledge in regards to whether or not property is stolen.

Answer 19

• Possession of recently stolen property
• Nature of the property, ie type, value, quantity
• Purchase at gross undervalue
• Secrecy in receiving the property
• Receipt of goods at an unusual place
• Receipt of goods at an unusual time
• receipt of goods in an unusual way
• concealment of property to avoid discovery
• removal of identifying marks or features
• steps taken to disguise property, ie removal of serial numbers
• lack of original packaging
• type of person goods received from
• mode of payment
• absence of receipt where receipt would usually be issued
• false statements as to the date of acquisition
• nature of explanation given, ie false, inconsistent or not reasonable
• false denial of knowledge, existence. ie stating nothing was there before discovery, then suddenly admitting to having what was discovered.

Question 20

Describe the ‘doctrine of recent possession’ and how it relates to receiving.

Answer 20

The doctrine of recent possession is the presumption that where the defendant 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 he possessor is either the thief or receiver.

The doctrine only relates to cases where the accused is FOUND IN POSSESSION of the stolen property. The prosecution must also prove the property is stolen, if there is no proof of theft, there is no onus on the accused to account for the possession.

Question 21

Describe how police acting as an agent (recovering property) affects receiving charges

Answer 21

Once police recover property and identify it as being stolen, they are said to have ‘recovered’ it. No one can be convicted of an offence of receiving when property has been recovered.

If police observe the stolen property covertly this is not classed as ‘recovering’ it.

Question 22

R v Donnelly (1970) - MUST KNOW

Answer 22

Where stolen property has been physically recovered by 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.