Receiving Flashcards
Receiving - Act/ section/ Elements (1)
CA 196, S246(1)
- Everyone who
- Receives
- Any property stolen or obtained by any other imprisonable offence
- 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
When is receiving complete?
Act/Section/Elements
CA 1961, S246(3)
Receiving is complete 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 it.
The act of receiving requires the satisfaction of three elements:
What are the three elements?
- Is property stolen or obtained by an imprisonable offence
- Defendant actually received the property from another
- Defendant has knowledge it has been stolen, or being reckless to that possibility
R v Cox
R v Cox
Possession involves two elements, physical and mental. The physical element is actual or potential custody or control. The mental element is a combination of knowledge and intention. Knowledge that the thing is in his possession and an intention to exercise control over it.
Cullen v R
What must be proved by prosecution in relation to control over property at a place?
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;
(d) An intention to exercise that control over the item
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 through the receiver may know that he property had previously been stolen or dishonestly obtained.
R v Donnelly
Property - Act/Section/Text
Crimes Act 1961 Section 2
Property includes any real or personal property, or any estate or interest in any real or personal property, money, electricity and any debt, and anything in action, and any other right or interest
R v Lucinsky
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.
Taking - Act/Section
Crimes Act 1961 Section 219(4)
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
What is title?
A right or claim to the ownership of property - A legal right to property.
When is title voidable?
If title is obtained by deception it is voidable title.
Three ways title can be avoided?
- Communicating directly with the deceiver
- Taking all reasonable and possible steps to bring it to the deceivers notice (e.g: sending an email or letter)
- Reporting the deception to police
Knowing definition
Simester and Brookbanks
‘Knowing’ means knowing or correctly believing. The defendant may believe something wrongly but cannot know something that is false.
R v Kennedy
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Cameron v R
Recklessness - Also Subjective/objective test
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
Subjective: The defendant consciously and deliberately ran a risk
Objective: The risk was one that the unreasonable to take in the circumstances as they were known to the defendant.
