Receiving and Recent Possession

Question 1

Where are the offences for “Receiving” found?

Answer 1

Sections 188 and 189 of the Crimes Act.
Section 188 is Receiving stolen property where stealing a serious indictable offence and Section 189 is Receiving where stealing is a minor indictable offence.

Section 189 is hardly used. Mostly Section 188 is the appropriate offence.

Question 2

What is found at Section 189 of the Crimes Act?

Answer 2

189 Receiving etc where principal guilty of minor indictable offence

Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof is a minor indictable offence, knowing the same to have been stolen, shall be guilty of a minor indictable offence, and whether the person guilty of the principal offence has been previously tried or not, or is amenable to justice or not, shall be liable to imprisonment for three years.

Question 3

What are the differences between Section 188 and Section 189?

Answer 3

Section 188 is Receiving stolen property where stealing a serious indictable offence and Section 189 is Receiving where stealing is a minor indictable offence.

Section 189 is hardly used. Mostly Section 188 is the appropriate offence.

Question 4

What are the proofs of receiving?

Answer 4

1.

(a) The Accused received, or
(b) The Accused disposed of, or
(c) The Accused attempted to dispose of property charged

2. The property was stolen

3.

Question 5

Where is the definition of “Possession” found?

Answer 5

The definition of Possession is found at Section 7 of the Crimes Act

Question 6

What is the meaning of “Possession”?

Answer 6

7 “Possession” when criminal
Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who—
(a) has any such property in his or her custody, or
(b) knowingly has any such property in the custody of another person, or
(c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another.

The Defendant needs to be aware of the presence of the goods AND have intention to exert physical custody over them

He Kaw Teh will always come into play regarding knowledge and possession.

Question 7

What are the principles of the case of He Kaw Teh regarding knowledge/possession?

Answer 7

• He Kaw Teh v The Queen – Held that possession connotes knowledge in the existence of the thing possessed. Prosecution must prove that the accused knew of the existence of the goods kept in a container over which he had exclusive physical control. Also, wilful blindness may be treated as equivalent to knowledge.

Question 8

R v Wiley

Answer 8

R v Wiley – Receiving must mean a taking into possession, actual or constructive

(This case was about Wiley negotiating a price so that Wiley could receive some fowls - Police walked in and interrupted negotiations).

“Receiving must mean taking into possession, actual or constructive”. The prisoner ‘never accepted’ the goods in any sense of word except n a contingency, which, as it happens, did not arise”..

NOT taken into possession therefore not receiving - may be an attempt.

Question 9

When would the charge of Goods in Custody be preferred?

Answer 9

In the past, if, subsequent to receiving property, a person became aware that such was stolen, they couldn’t be prosecuted for receiving. If they attempt to dispose of it after, they can be charged with attempting to dispose. However, if they receive the property innocently, learn of its theft and still retain it for their own use, they can be prosecuted for Goods in Custody.

Question 10

Where is the definition of “Property” found?

Answer 10

Section 4 of the Crimes Act.

Property includes: every description of 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 includes not only property originally in the possession or under the control of any person but also any property into which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediate or otherwise.

Question 11

The case of D’Andrea v Woods 117 JPR 560 found what, in relation to “property”?

Answer 11

In this case, a number of savings stamps were stolen and converted for their cash value into Bank of England notes. Some of the notes were handed to the appellant, who knew that they were part of the proceeds of the theft and conversion of the stamps and he was convicted of receiving the money. It was held on appeal that they money received by the appellant fell within the definition of property into which other property had been converted or which it had been exchanged. The English definition of property is almost identical to Section 4 of our Crimes Act. It is suggested that D’Andreas case could be used to support an indictment for receiving where the original property has been converted into some other property which can be identified as being the proceeds of such conversion.

Question 12

Admissions by Receiver

Answer 12

R v Guidice “any element of an offence may be proved by a voluntary and unequivocal admission by the accused”.

… and though the statements of the accused were open to the interpretation that he was not admitting that the cigarettes were stolen, but was merely referring to the fact that Police had told him they had been stolen, he himself had not suggested such an explanation and, in. Not, there had been sufficient evidence in the statements to establish a prima facie case to go to the jury.

Question 13

Knew it to be stolen

Answer 13

R v Parker “It is the guilty knowledge of the accused which constitutes the offence of receiving, and the accused is not to be convicted on the basis that the hypothetical reasonable man would have concluded the items were stolen”.

Ross v Moss - Knowledge covers the case of turning a blind eye, particularly when what went on was intended by the Defendant.

Question 14

What is the test for whether a person knew that the goods received were stolen?

Answer 14

It is a subjective test. NOT an objective test. You must satisfy the Court that the Deft knew in his/her mind that it was stolen.

Question 15

R v Schipanski

Answer 15

Be careful when using the term “wilful blindness” - wilful blindness has no place in receiving.

Question 16

Evidence of the thief…

Answer 16

The thief can be called to give evidence of stealing the property and passing it on to the defendant, and that at the time the defendant received possession of the property the thief told him it was stolen, or the conversation between the their and the receiver sas such that the receiver must have known it was However the their is considered at law to be an accomplice to the receiving and the evidence should be corroborated where possible. Such evidence would carry a warning to the jury that it may be unreliable evidence.

Question 17

What is the Doctrine of recent possession?

Answer 17

When a person is proven to have, or have had, POSSESSION of property which can be shown by evidence to have been stolen, and that possession is recent to the time of the theft, and the defendant fails to offer a credible explanation for his possession of the property, then a jury is entitled to draw a conclusion from the defendant’s unexplained possession of the property that the person is either the thief of the guilty receiver”.

Question 18

Section 121 Crimes Act

Answer 18

Alternative verdicts

• . On trial of a person charged with larceny or offence including larceny
• . AND receiving
• . Jury find specially person either stole OR received but can’t say which
• . Person not entitled to acquittal
• . Liable to be sentenced for the offence which carries the lesser punishment
• Look at Section 3 of the Crimes Act.
• R v Clarke - If greater quantity of property alleged to have been stolen and s121 only for one particular item, include that item in separate indictments.

Can’t rely on Section 121 unless BOTH indictments are before the Court. Only works if charged with both and jury can’t come to a decision. Indictments must be the exact same property.

Question 19

What are the main points of Section 189A Crimes Act?

Answer 19

• without lawful excuse
• receives/disposes of/attempts to dispose of/has in possession
• property
• stolen outside of NSW
• knowing the same to have been stolen
• whether or not he took part in stealing the property
• If the “stealing” (ss2) was an offence in the country/state where the act was committed (ss3).

Question 20

What is found at Section 188 of the Crimes Act?

Answer 20

188 Receiving stolen property where stealing a serious indictable offence

(1) Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to a serious indictable offence, knowing the same to have been stolen, shall be guilty of a serious indictable offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and in the latter case whether the principal offender has been previously tried or not, or is amenable to justice or not, and in either case is liable—
(a) if the property is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 12 years, or
(b) in the case of any other property, to imprisonment for 10 years.

Question 21

R v Fien found what in relation to possession?

Answer 21

Case: stolen (hotwired) car - around 2 hours before police pursuit. Appellant Fien was passenger. Evidence he entered the car around 2 hours before police pursuit. Directed driver around Surry Hills to get cigarettes and a drink.

“The mere fact that a person is shown to have some association with property known to be stolen is not enough to prove possession”. However, in this case the circumstances were sufficient to warrant a conviction.

Question 22

How do we define recent?

Answer 22

Authorities make it clear that recent is relative to:

1. the nature of the goods; and
2. circumstances of the case