Receiving

Question 1

What is the liability of receiving?

Answer 1

Sec 246(1), Receiving CA 1961
Everyone is guilty of receiving who
1. receives
2. any property stolen or obtained by any other imprisonable offence
3. knowing that property to have been stolen or so obtained;
or being reckless as to whether or not the property had been stolen or so obtained

Question 2

what is the punishment for receiving?

Answer 2

Under sec247 the value of the property determines the appropriate penalty
exceeds $1,000 = 7 years
exceeds $500 but does not exceed $1,00 = 1 year
does not exceed $500 = 3 months

Question 3

What elements are required to satisfy the act of receiving?

Answer 3

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

Question 4

When is the act of receiving complete?

Answer 4

If there is guilty knowledge (as described in s246) at the point that the act of receiving is complete, then the offence of receiving has been committed.

It is not necessary for the receiver to take personal physical custody of the property. It is sufficient if there is joint or sole possession or control over the property or when the person aids in the concealment or disposal of the same.

Act of receiving is complete once the defendant has:
• Either exclusively or jointly with the thief or any other person
• has possession or control of the property or
• Has assisted in the concealment or disposition of the property
• If there is guilty knowledge at that point, the offence is complete

Question 5

What is the case law in relation to possession?

Answer 5

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 6

Explain possession

Answer 6

The physical element requires the physical custody or control over the item in question and can be either actual or potential.
Actual possession arises where the thing in question is in a person’s physical custody or control.
Potential possession arises when the person had the potential for the thing in question in their control i.e storing at someone’s house.
The mental element is a combination of both knowledge that the person possesses the item in question, and an intention to possess the item.

Question 7

What is the case law relating to possession for receiving?

Answer 7

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

Where a person is unaware of the existence of the property they cannot be said to be in possession of it.

Question 8

Explain control over property

Answer 8

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 intentionally exercised control over it. Intent to posses 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 innocent agent or party). Again, exercise of such control must be intentional.

Question 9

Explain assisting in disposal or concealment of stolen property

Answer 9

Prosecution must prove both actual assistance and guilty knowledge. The doctrine of recent possession has no application in such circumstances.

The receiver need not have physically dealt with or actually obtained possession of the property. Acting as an intermediary or assisting in the sale of property for a share of the proceeds is sufficient as long as it can be shown either the defendant acquired (joint or sole) possession, or control over the property or they aided in concealing or disposing of the property.

Question 10

Explain how the offence must be legally possible

Answer 10

It must be legally possible to commit the offence of receiving. Where property has been restored, directly to the owner or via police acting as the owner’s agent, there can be no conviction. This is because the property is no longer deemed stolen.

Question 11

What is the case law relating to how the offence must be legally possible?

Answer 11

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 12

Does prosecution have to prove an element of dishonesty?

Answer 12

R v Crooks it was held there is an implied requirement that the accused act with a dishonest intention.

Question 13

Define property

Answer 13

Sec 2, CA 1961
Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest

Scope of the definition includes tangible and intangible property.

Question 14

What is the case law relating to property?

Answer 14

R v Lucinsky
The property received must be the property stolen or illegally obtained (or part therof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.

The statutory interpretation is extended to include property obtained by any act of dishonesty and is not restrictive to offences committed under the Crimes Act 1961. Money, being the proceeds of drug dealing, is property obtained by dishonest means.

Question 15

Explain theft and stealing in relation to s219 and s240 CA 1961

Answer 15

Sec219(4) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved

Obtaining by deception is defined s240.
Anderson v Police found obtain has its ordinary meaning of acquired or got in the sense of achieving physical control over the goods in question

R v Nichols further found property has not been dishonestly obtained in situations where the property concerned is freely and voluntarily handed to an intermediary by the rightful owner, before then being dealt with in an illegal manner before then being acquired by another party. This is because the property is not said to have been obtained by a crime.

Question 16

What is essential to prove in regards to the stolen property?

Answer 16

It is essential to a receiving charge that the prosecution prove the property in question was stolen or obtained by any other imprisonable offence. This proof may be direct or circumstantial.

Question 17

Explain convictions and proof of guilt

Answer 17

The conviction of an individual is conclusive proof of that person’s guilt.

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

Question 18

Define title

Answer 18

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 19

Explain the concept of title

Answer 19

Where property is obtained by deceptive means the offender gains both possession and (voidable) title. The type of title gained by the offender has limitations. However when property is stolen they gain possession only.

Question 20

Explain voidable title

Answer 20

Title obtained by deception is referred to as ‘voidable title’. 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.

This means that where an innocent party buys property that has been obtained by deception and before the title has been avoided, the innocent purchaser is said to have acquired good title to the property. Where the title is avoided prior to the purchase by the innocent party, they do not acquire title to the goods.

Question 21

Explain avoiding title

Answer 21

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; letter or email
• Advising Police of the circumstances of the deception

Question 22

Explain the effect of s246(4)

Answer 22

Property is no longer deemed stolen, and CANNOT be received once that property has been re-acquired by the legal owner or where legal title has been acquired by any person. This includes situations where the receiver is aware that the property was stolen or obtained by any other imprisonable offence

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.

The reverse applies where the voidable title has already been avoided, the effect is that it leaves the deceiver with possession only. Thus the deceiver is unable to confer a good title and a subsequent receiving of the property constitutes an offence.

Note: At law, a person cannot transfer to another any better title to goods than they themselves have, therefore where property is stolen, title cannot be transferred as it was never gained by the thief in the first instance.

Question 23

What is the case law relating to knowing property to have been stolen or so obtained?

Answer 23

R v Kennedy

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

Question 24

Explain “knowing property to have been stolen or so obtained”

Answer 24

A person who receives innocently does not commit an offence under this section if he retains the property dishonestly after acquiring such knowledge, although such retention may amount to theft by dishonestly dealing with the property.

Satisfaction of the offence does not require knowledge of the particular imprisonable offence from which the thing was obtained; therefore it does not matter in circumstances where a receiver thinks that property was stolen, when in fact it was obtained by deception.

Question 25

Explain being reckless as to whether or not the property had been stolen or so obtained

Answer 25

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

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

Question 26

What is the case law relating to recklessness?

Answer 26

R v Harney
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 27

Explain evidence of guilty knowledge

Answer 27

Circumstances in which property was received may alone be sufficient to justify a finding that the property was stolen, and an inference of guilty knowledge.

Under 246(1) knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 28

What are some examples of circumstantial evidence of guilty knowledge

Answer 28

Examples:

• possession of recently stolen property,
• nature of the property type (type, value, quantity),
• purchase at a gross undervalue,
• secrecy in receiving the property,
• receipt of goods at an unusual place/time/way,
• concealment of property to avoid discovery,
• removal of identifying marks or features,
• steps taken to disguise property,
• lack of original packaging,
• type of person goods received from,
• mode of payment,
• absence of receipt where receipt would usually be issued,
• false statements as to the source of the goods,
• false statements as to the date of acquisition,
• nature of explanation given,
• false denial of knowledge.

Question 29

Explain direct evidence of guilty knowledge

Answer 29

It is possible to call the original thief to give evidence against the receiver.
However the associated defendant will only be compellable to give evidence against the defendant if the associated defendant is being tried separately from the defendant or the proceeding against the associated defendant has been determined/concluded

Question 30

Does propensity evidence hold relevance in a receiving charge?

Answer 30

Propensity evidence holds relevance to a receiving charge, and may, where permitted, be introduced as evidence in proceedings in relation to a receiving charge.

Question 31

What is presumed with the Doctrine of recent possession?

Answer 31

Applies to receiving as well as theft.
The presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver, or has committed some other offence associated with the theft of the property, e.g burglary or robbery.

Question 32

Explain the Doctrine of recent possession

Answer 32

Rule allows for proof of theft or receiving by way of circumstantial evidence. In circumstances 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.

The doctrine:
• Is important where no other material evidence is available. But this presumption does not arise unless there is proof that the property has in fact been stolen or obtained by another crime.
• Applies only to cases where a defendant is found in possession of property recently stolen or obtained dishonestly.
• Has no application to the concealing or disposition of property.
Where there is no proof of any theft, a person in possession of property is not bound to account for their possession of it. The onus to do so lies with the prosecution.

Whether possession is recent is dependent on; the nature of the property and the surrounding circumstances.

Question 33

Explain Police acting as agents in receiving matters

Answer 33

Police are deemed to have an implied authority from the owner to recover and restore property where a complaint is lodged. This means that police possession of recovered property also equates to restoration of that property to the rightful owner.

Question 34

Can a person be charged with receiving from an unknown person?

Answer 34

Charges may be formulated in respect of receiving ‘from person unknown’ in circumstances where it is not know who committed the offence by which the property was obtained, providing all elements of the offence can be proved.

Question 35

How are charges formulated with property which is stolen to order?

Answer 35

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

Question 36

What happens in cases where property is obtained outside of New Zealand?

Answer 36

Receiving property that was obtained by any act committed overseas is an offence under NZ law only if the receiving takes place in NZ.

Property obtained by any act committed outside NZ that, if it had been committed in NZ, would have constituted an imprisonable offence is, subject to subs(5), to be regarded as having been obtained by an imprisonable offence s246(2).

If a person is charged with an offence under this section and the property was obtained by an act committed outside NZ, it is to be presumed, unless the person charged puts the matter at issue, that the doing of the act by which the property was obtained was an offence under the law of the place where the act was done s246(5).

Question 37

Can a person be charged with being a party to receiving?

Answer 37

Where a thief delivers stolen property to a receiver who, to his knowledge, is aware that the property have been dishonestly obtained, the thief is liable as a party to that receiving that has been committed by the receiver.