Receiving

Question 1

In order to sustain a charge of S188 Receiving stolen property where stealing is a SIO or S189 Receiving stolen property where stealing is a MIO what knowledge is required?

Answer 1

1. Knowledge at time property is received OR

2. Knowledge at time property is disposed of

Question 2

Where is property defined?

Answer 2

S4 Crime Act 1900

Question 3

How is property defined in S4 Crimes Act 1900?

Answer 3

Property includes:

• every description real and personal property;
• money, valuable securities, debts, and legacies; AND
• all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; AND
• not only property originally in the possession or under the control of any person BUT
• also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.

Question 4

How does D’Andrea v Woods assist in an indictment for receiving where the original property has been converted?

Answer 4

Stamps were stolen, converted to cash. Notes were handed to the appellant, who knew they were proceeds/conversion of the stamps.

Result? Convicted of receiving. On appeal, money received =
property the property had been converted the conviction was right.

Almost identical to property definition in S4 Crimes Act.

D’andreas case could be used to support an indictment for receiving where the original property has been converted.

Question 5

How is stealing defined in S187 Crimes Act 1900?

Answer 5

Stealing includes the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question.

Question 6

What knowledge is required for either S188 Receiving where stealing is a serious indictable offence or S189 Receiving where stealing is a mirror indictable offence?

Answer 6

1. Knowledge at time property received OR

2. Knowledge at time of disposal.

Question 7

• What is S188 Crimes Act?

Answer 7

• 188 - Receiving stolen property where stealing a serious indictable offence.

Question 8

• What is S189 Crimes Act 1900?

Answer 8

Receiving etc where principal guilty of minor indictable offence
(an example would be stealing dog on second occasion).

Question 9

• What are the proofs of 188 Crimes Act 1900 Receiving stolen property where stealing a serious indictable offence?

Answer 9

1. The accused
   - Received; OR
   - Disposed of; OR
   - Attempted to dispose of property charged
2. The property was stolen;
3. At the time the accused
   A) Received property; OR
   B) Disposed of property; OR
   C) Attempted to dispose of property

He knew it to be stolen.

Question 10

• S7 “Possession” when criminal Crimes Act 1900

Possession property:

(a) knowingly property in his custody, or
(b) knowingly in custody of another, or
(c) knowingly has any such property in a house etc whether such property is there own use, or the use of another.

He Kaw Teh, ‘Accused aware of existence (physical presence), the likely nature of the goods and intent to possess them.

What does R v Wiley state in relation to this?

Answer 10

Negotiating a price so that Wiley could received stolen fowls. Police walked in an interrupted negotiations.

Receiving must mean a taking into possession whether actual or constructive.

The prisoner never accepted the goods in any sense of the word except on a contingency which did not arise.

Question 11

In relation to possession, what is required to satisfy elements:

1(a) accused received OR
(B) accused disposed of OR
(C) Accused attempted to dispose of the property charged

Of S188/S189 Receiving stolen property where stealing a serious/minor indictable offence?

HINT: It’s very PC.

Answer 11

Defendants needs to:

1. Be aware of the presence of the goods AND
2. Have intention to exert physical custody over them.

Question 12

How is possession defined in S7 Crimes Act 1900?

Answer 12

Every deemed to have property in his possession who:

(a) has any property in custody, OR
(b) knowingly has property in custody of another, OR
(c) knowingly has property in house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself, and whether such property is there had or placed for own use/another.

Question 13

Does intent coupled with knowledge that the property was stolen render the person liable to conviction for receiving, if the thief retains exclusive possession of the goods according to R v WILEY?

Answer 13

No!

Wiley convicted of receiving seven fowls from two men who were convicted of their theft.

When police found Wiley and the thieves they were negotiating a suitable price for the fowls with Wiley, who them to be stolen.

Wiley was convicted of receiving. Overturned on appeal on basis the possession of the thieves excludes possession by Wiley.

There must be a control over the goods by the receiver, which there was not in this case. (But Wiley may have been liable for an attempt).

Question 14

How does R v FEIN inform the S188 Receiving stolen property in relation to possession?

HINT: THAT FIEND HAS CONTROL OF THE VEHICLE.

FACTS

• Vehicle stolen from street;
• Fien entered the car two hours previously and directed driver around Surry Hills for cigarettes and a drink;
• Two hours later vehicle stopped by police driven by POI 1 with FIEN and another passenger;
• All charged with stealing and/or receiving.

Answer 14

• Mere association with property (known to be stolen) is insufficient for possession BUT
• But having control over it and being able to direct its movements were sufficient.

The facts and circumstances of this particular case would now be covered by the provisions of section 154A (1) (b) of the Crimes Act 1900.

Question 15

What example of constructive possession does R v CAVENDISH provide?

Delivery driver, delivers oil barrels to Cavendish’s premises instead of their intended recipient. They were unloaded by one of Cavendish’s employees as Cavendish was away at the time.

Cavendish denied any knowledge.

Answer 15

The court found that:

If the jury were satisfied that the appellant had agreed to take the goods the jury were entitled to find that appellant had possession. That is constructive possession.

However, if he knew nothing about them he had not received them into his possession.

One can receive something into one’s possession constructively without actually physically taking it over.

Question 16

Is dispose defined in the Crimes Act or in case law?

Answer 16

No! So we look to the dictionary definition.

The action of disposing of:

• settling to definitely dealing with;
• the action of giving or making over, bestowal, assignment.

Question 17

What are the two requirements for an attempt?

Answer 17

1. Acts go beyond preparation stage and be sufficiently proximate to completion of offence;
2. Objective sought must constitute a crime.

Question 18

What does HAUGHTEN v SMITH state about element two property was stolen.

Answer 18

Police intercepted van carrying stolen goods. Police got in van and continued with the delivery. On arrival accused helped to dispose of the van and its load.

HELD: When police took custody of the goods were restored to lawful custody and were no longer stolen.

Mere preparation is not criminal. It is left to common sense to determination whether the accused has gone beyond preparation.

Question 19

Is mere preparation criminal?

Answer 19

No. Common sense determines if a person has gone beyond preparation.

Question 20

Can a person be convicted of attempted to receive as per R v MAI and TRANH 1991?

Answer 20

Yes.

Question 21

• What does R v Guidice state about admissions and their interpretation?

Answer 21

Any element of an offence may be proved by a voluntary and unequivocal admission.

While statements of accused were open to interpretation he himself had not suggested such an explanation and in any event there had been sufficient evidence in the statements to establish a Prima facie case to go to the jury.

Question 22

PROVING THEFT CIRCUMSTANTIALLY

Can you prove theft circumstantially according to R V SBARRA and R v YOUNG and SPIERS?

Answer 22

Yes!

The circumstances defendant receives goods may of themselves prove that the goods were stolen AND

may prove he knew it when he received them.

It is not a rule of law that there must be other evidence of theft”.

Question 23

PROVING THEFT CIRCUMSTANTIALLY

Does R v YOUNG and SPIERS support R v SBARRA?

Answer 23

Yes!

There was ample evidence from the circumstances in which the goods were found to justify the conviction.

A considerable quantity of new and recently milled metal was found in the possession of Spiers.

Question 24

2. Circumstantial proof

Can you identify property that has been stolen circumstantially according to R v SCHIFFMAN?

Answer 24

Yes.

R v SCHIFFMAN: The jury can determine on a circumstantial case that the items in possession of the defendant were the items stolen even if only on a circumstantial case.

Any explanation of the accused in relation to how he came by the goods which is false or absurd negatives the suggestion they are honestly obtained.

Question 25

Can you identify property that has been stolen circumstantially according to R v HAYES?

Answer 25

Yes. Jury were entitled, having regard to nature of lies, changing of the silver and coincidence of denominations of coins, to infer that the silver was stolen.

Question 26

* 3. KNEW IT WAS STOLEN When it comes to proving that a person knew something was stolen, is believed enough according to R v Julal RAAD?

Answer 26

Yes. If the jury found the appellant “believed the vehicle was stolen. In this case a car was stolen at Bondi in March. Accused said found it on Road in May and bought it from “Frank.”

Question 27

* 3 KNEW IT WAS STOLEN Is a person who receives stolen property for the purpose of handing it over to police guilty of receiving according to R v Matthews?

Answer 27

No, would also not have been guilty if the intention was to hand the property to its true owner.

Question 28

* 3 KNEW IT WAS STOLEN | Is receiving stolen property a subjective or objective test according to R v PARKER?

Answer 28

Subjective Guilty knowledge of accused constitutes offence of receiving. Accused is not to be convicted on the basis that the hypothetical reasonable man would have concluded the items were stolen.

Question 29

* KNEW IT WAS STOLEN What about wilful blindness in relation to Ross v Moss and R v SCHIPANSKI?

Answer 29

Evidence of Knowledge sufficient if turning a blind eye where tribunal of fact to concludes accused had subjective belief the property was stolen. BUT R v SCHIPANSKI...careful when using the term wilful blindness. R v Schipanski cautioned against the use of the term "wilful blindness" as this term may import an objective test in relation to what the accused believed i.e. "a reasonable man in the circumstances surrounding the accused would have believed…" This is not the test to be applied.

Question 30

* S189A Crimes Act Property stolen outside of NSW.

Answer 30

1. The accused 2. Without lawful excuse 3. Receives/disposes of/attempts to dispose of/has in possession; 4. Stolen outside NSW; 5. Knowing the same to have been stolen; 6. Whether or not he took part in stealing the property; IF * The stealing (SS2) was an offence in the country where the act was committed SS3

Question 31

What happens where you can’t tell where the property was received S189B Crimes Act 1900?

Answer 31

- On trial of a person under S188 or S189; - Proved property was stolen in course of transmission: * between NSW and other jurisdiction OR * Between other jurisdiction and NSW - Person liable to conviction without proof stealing took place in NSW - Deemed to have taken place in NSW to work out whether SIO or MIO. Basically if the property was loaded in New South Wales for a destination in some other State or Territory, and on arrival it is discovered that the property has been stolen, it will not be necessary to prove, at a subsequent trial in this State of a person for receiving the stolen property that it was stolen in this State. In a similar manner, if property is loaded at a place outside New South Wales for a destination in this State and it is found that this property has been stolen it will not be necessary for the prosecution to prove the locality of the theft, as it is now deemed to have been stolen in New South Wales

Question 32

* Under S121 Crimes Act 1900 if a jury finds a person charged with larceny or offence including larceny AND receiving either stole or received property but can say which what can they do?

Answer 32

The person is not entitled to acquittal BUT is liable to be sentenced for the offence which carries a lesser punishment.

Question 33

* What does R v CLARKE state in relation to S121 Alternative Verdicts?

Answer 33

If greater quantity of property alleged to have been stolen, and S121 only for one particular item, include that item in separate indictments.

Question 34

* What is the definition of the doctrine of recent possession?

Answer 34

- A person proven has, or has had; - Possession of property - Which can be shown by evidence to be stolen; AND - Possession recent to theft; AND - Defendant fails to offer credible explanation for possession of property; THEN - Jury entitled to draw conclusion from defendant’s unexplained possession of property that person either the thief or the guilty receiver.

Question 35

What does R V CROSS state about the necessity of the accused being found in possession of the goods in question.

Answer 35

It is not necessary that the accused should be found in possession. Sufficient if can show accused was in possession at the relevant time.

Question 36

What does R v MARCUS state about “recent” in relation to the doctrine of recent possession?

Answer 36

Recent in terms of the doctrine means recent in relation to the larceny.

Question 37

According to R v BELLAMY does the doctrine of recent possession contain a presumption?

Answer 37

No. The wiser course is to avoid the use of the word presumption altogether in this connection.

Question 38

What is recent relative to?

Answer 38

1. Nature of the goods; AND | 2. Circumstances of the case.

Question 39

Is the opportunity for sale or re-sale important in relation to recent?

Answer 39

Yes as well as the location of the goods.

Question 39

Is recency determined by the nature of the goods according to R v MEDCALF?

Answer 39

Yes.

Question 40

If the defendant gives an alternative version in relation to the property can the magistrate find them guilty as per the decision of R v ZREIKA?

Answer 40

If only evidence for prosecution is recent possession, magistrate must be satisfied BRD defendant’s version is false before convicting.

Question 41

Is the defendant’s failure to give a credible explanation evidence of guilt as per BRUCE v R?

Answer 41

It may be.

Question 42

IN R v Smale - A motor vehicle discovered in Smale's possession 5 months after theft. - Smale admitted had come into possession of the vehicle at a 3 months after theft. - Charged with and convicted of the larceny; - On appeal claimed not guilty because time lapse too long to invoke the doctrine of recent possession. What did LEE rule?

Answer 42

Recency has no absolute connotation so far as time relationship is concerned. The law permits the inference to be drawn when the accused is in possession of property which has recently been stolen and not accounted for, but recognises that the very nature of the goods can relate to the reasonableness of requiring that the accused be able to account for this possession. So the element of recency may have a different time significance in different cases. Say a $2 been stolen, its possession by the accused, even shortly after the theft may, in the circumstances, not be sufficiently close to the theft to require that the accused should be able to account for his possession. In other cases property is of a kind that it would be expected that the accused would be able to account for his possession, the degree of recency need not be nearly so close to the theft as in the case that I first mentioned. In The King V McCaffery (1911) That term, however, is a relative term. There is no fixed period of time which in all cases will constitute recent possession. The period is relative to the subject matter which is found in the prisoner's possession. The length of the period is subject to other considerations also. In the case of money It would be going too far to say that in such a case a person found in possession of the particular thing should be called upon to account for his possession except within a very brief period after it was lost. If on the other hand, the thing found is a thing not found commonly passing from hand to hand - a thing which would challenge inquiry and fix the dates in the memory of a man into whose possession it came - in that case the period of time which would be'recent possession' would be a much longer period.

Question 44

What are some good examples of recency?

Answer 44

- R v SINANOVIC: opal ring worth $10,000. Accused said paid $1500 and pawned for $300. Even if value is $1500, seven months was recent. - R v MAHONEY: Rebirthing motor vehicles - elastic concept depending on nature of property.

Question 45

Does the doctrine of recent possession applies to all charges which involve a larceny according to R v LOUGHLIN?

Answer 45

Yes. In the case were someone is guilty of stealing or a similar offence, it is inconsistent to find him/her guilty of receiving because a person cannot receive from his/her self.

Question 46

* When would goods in custody be preferred?

Answer 46

Offender receives the property innocently, learns of its theft, and then retains it for his own use. In such a case all that he could be prosecuted for would be the offence of "Goods in Custody" under sections 527C of the Crimes Act.

Question 47

* Admission by receiver as per R V Guidice.

Answer 47

Any element of an offence may be proved by a voluntary and unequivocal admission by the accused.

Question 48

What is the limitation of the function of S121 Crimes Act 1900 according to R v CLARKE?

Answer 48

Only applies where it is the same property alleged to have been either stolen or received. If Crown wishes to rely S121 in relation to that one particular item, it should have charged the accused with having stolen it in a separate count, and with the receiving charge relating to the same property in the alternative. Fairness requires that the Crown indicate to the accused that it will be relying upon Section 121 as soon as it decides to do so.

Question 49

Can admissions assist in recency according to Ghys v CRAFTER state? For example, stating you have had a typewriter for 10 years when it was only produced two years ago.

Answer 49

Defendant’s admission he had possessed the article since before it was stolen could be sufficient evidence about recent possession.