Receiving

Question 1

Receiving.

Section and Penalty.

Answer 1

Sec 246(1) CA 61 - Receiving.

Sec 247 - Penalty.

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

Question 2

Receiving.

Ingredients.

Answer 2

Sec 246(1) CA 61.

• 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.
Legislation.
When is receiving complete.

Answer 3

Sec 246(3) CA 61.

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 4

Receiving.
Case Law.
R v Cox.

Answer 4

R v Cox.

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

Receiving.
Case Law.
Cullen v R.

Answer 5

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.

Question 6

Assisting in Disposal or Concealment of Stolen Property.

To be proven with example.

Answer 6

Both actual assistance and guilty knowledge.

The doctrine of recent possession does not apply in such circumstances.

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

Question 7

Receiving.
Case Law.
R v Donnelly.

Answer 7

R v Donnelly.

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 8

Receiving.
Property.
Definition.

Answer 8

Sec 2 CA 61.

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 9

Receiving.
Case Law.
R v Lucinsky.

Answer 9

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.

Question 10

Receiving.
Taking.
Definition.

Answer 10

Sec 219(4) CA 61

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

Question 11

Title.

Definition.

Answer 11

A legal right to property.

Question 12

Receiving.
Case Law.
R v Kennedy.

Answer 12

R v Kennedy.

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

Question 13

Circumstantial Evidence of Guilty Knowledge

Answer 13

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 14

Doctrine of Recent Possession.

Answer 14

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 15

Theft.

Definition.

Answer 15

Sec 219(1) CA 61

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 16

Obtain.

Definition.

Answer 16

Sec 217 CA 61

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

Question 17

Voidable title.

How to avoid.

Answer 17

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 18

Receiving.
Case Law.
Cameron v R.

Answer 18

Cameron v R.

Recklessness is established if:

(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and

(b) having regard to that risk those actions were unreasonable.