RECEIVING Flashcards
Criminal liability
Receiving
Section 246 (1), crimes act 1961
7years/1 year/3 months
1.receives
2.any property
3.stolen or
Obtained by any other imprisonable offence
4.knowing that the property to have been stolen or obtained by any imprisonable offence or being reckless as to whether that property had been stolen or so obtained.
Value (Will determine the appropriate penalty)
To satisfy the act of receiving what three elements must exist?
- 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.
When the act is complete Section 246 (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 inconcealing or disposing of the property.
Possession maybe actual or constructive.
Explain the difference
Actual possession arises when the thing in question is in a persons physical custody; it is on or about the person, or immediately at hand.
Constructive possession arises when something is not in a persons physical custody, but they have ready access to it or can exercise control over it.
Case law
Ideal possession
Warner v Metropolitan police commissioner
Ideally, a possessor of a thing has complete physical control over it; he has knowledge of its existence, it’s situation and its qualities; he has received it from the person who intends to confer possession of it, and he has himself the intention to possess it exclusively of others.
Caselaw
R v Kennedy
A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Define property
Section 2 crimes act 1961
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.
Case law
Property
R v Lucinsky
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.
(Think about the thief that steals the hundred dollars and then splits it up)
Define stolen Section 219 (1), crimes act 1961
Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.
Define obtains
Section 217, crimes act 1961
Means obtains or retains for himself or herself or for any other person.
Define reckless
Acting recklessly involves consciously and deliberately taking an unjustifiable risk.
Case law
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.
Caselaw
A guilty knowledge
R v Kennedy
A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Caselaw
Where stolen property has been recovered by police
R v Donnelly
Where stolen property has been physically recovered by the police, it is legally impossible to commit the crime of receiving or attempted. It must be legally possible to receive the property.
What is title?
Title means a right or claim to the ownership of property
