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

Receiving

Answer 3

The act of receiving requires the satisfaction of three elements:

1. There must be property which has been stolen or has been obtained by an imprisonable offence.
2. The defendant must have received that property which requires that the receiving must be from another
3. 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 When is receiving complete

Answer 4

S246(3) CA61 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

Answer 5

R v Cox [1990] 2 NZLR 275

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

Possession for receiving - test for possession

Answer 6

Cullen v R [2013] NZCA 413

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

Answer 7

Where property is located at a place, over which the receiver has control, then the prosecution must prove 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. As noted above, intent to possess the property must also be satisfied.

Control over property may still be exercised by a receiver when the property is in the possession of the receiver’s agent or servant (includes an innocent agent or party). Again, the exercise of such control must be intentional.

Question 8

Assisting in Disposal or Concealment of Stolen Property Must prove: Example Of note only

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

Knowing that property to have been stolen/so obtained

Answer 9

knowing means “knowing or correctly believing”. The defendant may believe something wrongly, but cannot “know” something that is false”.

R v Kennedy [2001] 1 NZLR 314; (2000) 18 CRNZ 501 (CA).

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

Question 10

Reckless as to whether or not the property had been stolen or so obtained

Answer 10

Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk

It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).

R v Harney [1987] 2 NZLR 576 (CA)

“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 11

R v Donnelly

Answer 11

R v Donnelly [1970] NZLR 980

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 12

Property

Answer 12

S2 CA61 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.

R v Lucinsky [1935] NZLR 575 (CA).

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 13

Taking Legislation

Answer 13

S219(4) CA61

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

Question 14

Title

Answer 14

Tile is defined by the Oxford Dictionary as meaning ‘a right or claim to the ownership of property’. Title or ownership of a thing is the legal right to possession of that thing.

Question 15

Voidable Title

Answer 15

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.

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.

Question 16

How to avoid title

Answer 16

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

Question 17

Circumstantial Evidence of Guilty Knowledge

Answer 17

Receipt

• receipt of goods at an unusual place
• receipt of goods at an unusual time
• receipt of good in an unusual way
• secrecy in receiving the property
• type of person goods received from

Value

• mode of payment
• purchase at a gross undervalue
• absence of receipt where receipt would usually be issued

Property

• nature of the property, ie type, value, quantity
• lack of original packaging
• removal of identifying marks or features
• steps taken to disguise property, ie removal / altering of serial numbers, painting

Defendant

• nature of explanation given, eg false or inconsistent or no reasonable explanation
• false statements as to the source of the goods
• false statements as to the date of acquisition
• false denial of knowledge, existence etc
• possession of recently stolen property
• concealment of property to avoid discovery

Question 18

Doctrine of Recent Possession

Answer 18

Where a person is found in possession of stolen property reasonably soon after the theft, without ansatisfactory explanation, an inference may be drawn that the person in possession either stole the property or received it from the thief.

Whether possession is ‘recent’ is dependant on:

• the nature of the property, and
• the surrounding circumstances.

Question 19

Theft Legislation

Answer 19

S219(1) CA61 Dishonestly and without claim of right, takes any property with intent to deprive any owner permanently of that property or of any interest in that property

Question 20

Obtain Legislation

Answer 20

S217 CA61 To obtain or retain for himself or herself or for any other person.

Question 21

Conviction to be regarded as conclusive proof of guilt

Answer 21

Section 49 of the Evidence Act 2006 provides that the conviction of an individual is conclusive proof of that person’s guilt, unless allowed to be contested by the judge in later proceedings.

You are therefore able to rely on the conviction of the thief or obtainer as proof of the offence relating to the property stolen or obtained. Despite this you must still prove any conduct or mental elements of receiving against the defendant