Receiving

Question 1

Receiving

S246(1) CA61

Answer 1

Every one is guilty of receiving 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.

Question 2

When is receiving complete

S246(3) CA61

Answer 2

The act of receiving any property stolen or obtained by any other imprisonable offence 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 or the property.

Question 3

Elements of receiving

Answer 3

Act of receiving
Any property stolen, or
Obtained by any other imprisonable offence
Knowing that at the time of receiving the property that it had 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 4

The ‘act of receiving’ requires 3 elements

Answer 4

1. There must be property that has been stolen or has been obtained by an imprisonable offence
2. The defendant must have ‘received’ that property, which requires that the receiving must be from another
3. The defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility

Question 5

(Both physical and mental element must be proved for possession) R v Cox

Answer 5

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

(Possession for receiving) Cullen v R

Answer 6

There are four elements of possession for receiving:

(a) awareness that the items 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

Question 7

(Offence must be legally possible) R v Donnelly

Answer 7

Where stolen property has been returned to the owner or legal title to any such property has been acquired by any such 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

Property defined

s2 CA61

Answer 8

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

(Property received) R v Lucinsky

Answer 9

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

Theft or stealing defined

S219(4) CA61

Answer 10

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

Question 11

Title defined

Answer 11

A right or claim to the ownership of property. Legal right to the possession.

Question 12

Voidable title

Answer 12

Title obtained by deception. Meaning title can be avoided by the complainant.

Where innocent party buys property obtained by deception and before title had been avoided, the innocent party acquires good title to the property. Where the title is avoided prior to purchase bu innocent party they do not acquire title.

Question 13

Avoiding title. One of 3 must occur

Answer 13

• Communicating directly with the deceiver
• taking all reasonable and possible steps to bring it to the deceiver’s notice, eg letter, email
• advising police of the circumstances of the deception

Question 14

The effect of s246(4) CA61

Answer 14

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.

Question 15

(Knowing that property have been stolen) R v Kennedy

Answer 15

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

Question 16

(Recklessness) R v Harney

Answer 16

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 risk

Question 17

Recklessness subjective/objective test

Answer 17

Sub - The defendant was aware of the risk and proceeded regardless

Obj - It was unreasonable for him to do so

Question 18

Circumstantial evidence of guilty knowledge (18 points)

Answer 18

• Possession of recently stolen property
• Nature of the property ie type, value, quantity
• Purchase at gross undervalue
• Secrecy in receiving property
• Receipt of goods at an unusual place
• Receipt of goods at an unusual time
• Receipt of goods in an unusual way
• Concealment of property to avoid discovery
• Removal of identifying marks or features
• Steps taken to disguise property, ie removal/altering serial number
• Lack of original packaging
• Type of person goods received from
• Mode of payment
• Absence of receipt where receipt would usually be issues
• False statements as to the source of goods
• False statements as to the date of acquisition
• Nature of explanation given
• false denial of knowledge, existence

Question 19

Compellability of defendants

S73 Evidence Act 2006

Answer 19

(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless
(a) the associated defendant is being tried separately from the defendant or
(b) the proceeding against the associated associated defendant has been determined

Question 20

Doctrine of recent possession

Answer 20

Only applies when defendant is found in possession of property recently stolen or obtained dishonestly.

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 eg burglary or robbery.

In circumstances where a person is found in possession of stolen property soon after theft, an inference may be drawn that the person in possession either stole it or received it from the thief.

Question 21

Proceedings against parties to offences, accessories, receivers
S137 CA61

Answer 21

Person charged as a party/AATF/receiver may be proceeded against and convicted :

• whether or not the principal offender or any other party to the offence or the person by whom property was obtained has been proceeded against or convicted.
• alone
• jointly with principal/other offender/person property stolen or obtained by