Receiving Flashcards
Define possession using case law.
R v Cox
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.
What are the four elements of possession for receiving? Use 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.
Define property.
Crimes Act 1961, Section 2
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.
The property received must be the property stolen. Complete this discussion using case law.
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.
Give a short definition of title.
Title or ownership of a thing is the legal right to possession of that thing.
Use case law to discuss guilty knowledge in regards to receiving.
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Define recklessness using case law.
R v Harney
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 the course of conduct regardless of risk.
Explain the doctrine of recent possession.
Allows for proof of theft or receiving by way of circumstantial evidence. Where a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that the person in possession either stole the property or received it. There has to be proof the property is stolen or obtained by another imprisonable offence. Accused must be found in possession.
Give an example in case law of legal impossibility regarding receiving.
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.
- Car bought with valueless cheque.
- Title voided.
- Given to knowing receiver.
Who gets car?
Is receiver liable?
Seller gets car.
Receiver is liable.
- Car bought with valueless cheque.
- Given to knowing receiver.
- Title voided.
Who gets car?
Is receiver liable?
Seller gets car.
Receiver not liable.
Define receiving.
s246(1), CA 1961
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.
What are the elements of receiving?
• 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.
When is the act of receiving complete?
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.
Give 10 examples of circumstances that could be relied on as evidence of guilty knowledge.
- 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
- mode of payment
- absence of receipt where receipt would usually be issued
- false statements as to the source of the goods
- false statements as to the date of acquisition
- nature of explanation given, eg false or inconsistent or no reasonable explanation
- false denial of knowledge, existence etc.
