Receiving

Question 1

Receiving Liability

Answer 1

Section 246(1)

• Receives
• Any property stolen OR any property obtained by any other imprisonable offence
• Knowing that property to have 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

The act of receiving requires the satisfaction of what 3 elements

Answer 2

• property which has been stolen or obtained by an imprisonable offence
• defendant must have received that property, the receiving must be from another
• defendant must receive that property in the knowledge that it has been stolen or illegally obtained or being reckless as to that possibility

Question 3

When is the act of receiving complete

Answer 3

• 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
AND
• If there is guilty knowledge at the time of receiving

Question 4

R v Cox

Answer 4

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 5

Cullen v R

Answer 5

There are four elements of possession for receiving:

(a) awareness that the item is where it is
(b) awareness that the time has been stolen
(c) actual or potential control of the item and
(d) an intention to exercise that control over the item

Question 6

Were property is located at a place over which the receiver has control what must the prosecution prove

Answer 6

• the receiver arranged for the property to be delivered there OR
• on discovering the property they intentionally exercised control over it
• intent to possess

Question 7

When is receiving not an offence

Answer 7

Where property has been restored directly to the owner or via police acting as the owners agent

Question 8

R v Donnelly

Answer 8

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 receive may know that the property had previously been stolen or dishonestly obtained

Question 9

Definition of property

Answer 9

Includes any 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 10

R v Lucinsky

Answer 10

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 11

Definition of stolen

Answer 11

Theft

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

Question 12

Can you rely on the conviction of the thief obtained as proof of the offence relating to the property stolen or obtained

Answer 12

Yes

Question 13

What is title

Answer 13

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 14

What is the difference between obtains by deception and theft in respect of title

Answer 14

OBTAINS BY DECEPTION -property handed over by the owner, gains both title (voidable) and possession

THEFT - taken without the consent of the owner. Possession only no title

Question 15

What is voidable title

Answer 15

Title that is obtained by deception. May be avoided

Question 16

How can title be avoided

Answer 16

• communication directly with the deceiver
• taking all reasonable and possible steps to bring it to the deceivers notice eg. sending email or letter
• advising police of the circumstances of the deception

Question 17

Section 246(4)

Answer 17

Where title has not been avoided a person who would otherwise be a receiver CANNOT be convicted of receiving from a person who has voidable title to property acquired by deception.

Likewise for property that has been re-acquired by the legal owner.

Question 18

Concept of title

Answer 18

Car purchased valueless cheque……..on-sold to genuine buyer……title voided by complaint = buyer keeps car not liable as receiver

Car purchased valueless cheque…..title voided……on-sold to genuine buyer = car returned buyer not liable

Car purchased valueless cheque…..title voided…..on-sold to knowing receiver…….car returned, receiver liable

Car purchased valueless cheque……on-sold to knowing receiver……title voided……car returned, receiver NOT liable

Question 19

R v Kennedy

Answer 19

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

Question 20

R v Harney

Answer 20

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

Question 21

Name 18 examples of circumstantial evidence that would suggest guilty knowledge that property was stolen

Answer 21

• possession of recently stolen property
• nature of the property (type, value, quantity)
• purchase at gross undervalue
• secrecy in receiving the property
• receipt of goods at an unusual place
• receipt of goods in an unusual way
• concealment of property to avoid discovery
• removal of identifying marks or features
• steps taken to disguise property (removal of serial numbers)
• lack of original packaging
• type of person goods received from
• payment method
• absence of receipt where receipt would usually be issued
• false statement as to the source of the goods
• false statements as to the date of acquisition
• nature of explanation given (false or inconsistent or no reasonable explanation)
• false denial of knowledge, existence

Question 22

When can the thief be called to give evidence against the receiver

Answer 22

• associated defendant is being tried separately from the defendant
• proceedings against the associated defendant have been determined/concluded

Question 23

What is the doctrine of recent possession

Answer 23

The presumption that where a person is found in possession of stolen property without reasonable explanation, 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 24

What two things determine “recent possession”

Answer 24

• the nature of the property AND

* the surrounding circumstances

Question 25

Accessories after the fact and receivers

Section 137, Crimes Act 1961

Answer 25

137

(1) This section applies to every person charged
(a) as a party to an offence
(b) with being an accessory after the fact or any offence
(c) with receiving property knowing it to have been stolen or dishonestly obtained

(2) every person who subsection 1 applies may be proceeded against and convicted for the offence whether or not the principle offender or any other party to the offence or the person by whom the proerpty was obtained has been proceed against or convicted

(3) every person to whom subsection 1 applies may be proceeded against and convicted
(a) alone as for a substantive offence
(b) jointly with the principal or other offender or person bye whom the property was stolen or dishonestly obtained

(4) if any property has been stolen or dishonesty obtained any number of receivers at different times of that property or of any part or parts of it may be charged with substantive offence and may be tired together

Question 26

What should someone be charged with if they are the receiver of property stolen to order

Answer 26

Parties 66(1) to the theft rather than a receiver

Question 27

Can a thief be charged with party S66(1) to receiving

Answer 27

Yes, if they know that the receiver is aware that the property has been dishonestly obtained