Receiving

Question 1

Section and Penalty

Answer 1

S246(1) CA61

7 Years Imp (Exceeds $1000)
1 Year Imp ($500 - $1000)
3 Months Imp (Under $500)

Question 2

Elements

Answer 2

• Receives
• Any property stolen OR obtained by any other imprisonable offence
• Knowing the property to be stolen or so obtained
  OR
• Being reckless whether or not the property had been stolen or so obtained

Question 3

The Act of Receiving

Must satisfy three elements - what you must prove

Answer 3

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

Question 4

Legislation
S246(3) CA61

When is receiving complete

Answer 4

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

Possession

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

Possession for receiving, four elements

Answer 6

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.

Question 7

Control over Property

Where property is located at a place, over which the receiver has control, then the prosecution must prove:

Answer 7

The receiver arranged for the property to be delivered there, or alternatively, that on discovering the property, he or she intentionally exercised control over it.

**intent to possess the property must also be satisfied.

**Also includes innocent agent possessing property.

Question 8

Assisting in Disposal or Concealment of Stolen Property

Must prove:

Example

Answer 8

Both actual assistance and guilty knowledge.

(The doctrine of recent possession, discussed later in this chapter, has no application in such circumstances).

Example:
Assisting in the sale of stolen property although the person has not physically dealt with or possessed the property.

Question 9

R v Donnelly

Not an offence to receive

Answer 9

Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person,

it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

Question 10

Property

S2 CA61

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.

Question 11

R v Lucinsky

The Property received must be…

Answer 11

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 12

Taking

S219(4) CA61

Answer 12

For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 13

Title and Voidable Title

And how to void title

Answer 13

A legal right to property.

If title is obtained by deception it is voidable title.

• 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

Question 14

R v Kennedy

Guilty Knowledge

Answer 14

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

Question 15

R v Harney

Recklessness

Answer 15

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

Question 16

Circumstantial Evidence of Guilty Knowledge

Answer 16

• 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.

Question 17

Doctrine of Recent Possession

Answer 17

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 from the thief.

Question 18

Property stolen to order

Answer 18

In situations where property is stolen to order the receiver of such stolen property is liable as a party to the principal offence, pursuant to s66(1) rather than as a receiver under s246.