RECEIVING - Definitions

Question 1

RECEIVES

Answer 1

RECEIVES SECTION 246(3), CRIMES ACT 1961 (3) 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 of the property.

Question 2

POSSESSION

Answer 2

POSSESSION Possession may be actual or constructive.

Question 3

ACTUAL POSSESSION

Answer 3

ACTUAL POSSESSION Actual possession arises where the thing in question is in a person’s physical custody; it is on or about their person, or immediately at hand. WARNER v METROPOLITION POLICE COMMISSIONER The term “possession” must be given a sensible and reasonable meaning in its context. Ideally, a possessor of a thing has: • Complete physical control over it • Knowledge of its existence, its situation and its qualities

Question 4

CONSTRUCTIVE POSSESSION

Answer 4

CONSTRUCTIVE POSSESSION Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it. SULLIVAN V EARL OF CAITHNESS “[Possession includes} not merely those who have physical custody of firearms … but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location].”

Question 5

RECKLESSNESS

Answer 5

RECKLESSNESS Consciously and deliberately taking an unjustifiable risk. R v HARNEY Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

Question 6

PROPERTY

Answer 6

PROPERTY - Section 2, Crimes Act 1961 Includes any real or personal property. Any estate or interest in any real or personal property. Anything in action. Any other right of interest. R v LUCINSKY Property received must be property stolen or obtained by a crime. The property or part of it.

Question 7

OBTAINS

Answer 7

OBTAINS - Sec. 217, Crimes Act 1961 Means obtains or retains for himself or herself or for any other person.

Question 8

GUILTY KNOWLEDGE

Answer 8

GUILTY KNOWLEDGE SIMESTER AND BROOKBANKS: PRINCIPALS OF CRIMINAL LAW Knowing means “correctly believing” … the defendant may believe something wrongly, but cannot “know” something that is false. R V KENNEDY A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving

Question 9

VALUE OF THE PROPERTY

Answer 9

VALUE OF THE PROPERTY The property value is essential to the sentence as per s247, CA 1961.

Question 10

Concept of title

Answer 10

Concept of title

“Title” is not defined in the Crimes Act 1961. The Concise Oxford Dictionary defines title as ‘a right or claim to the ownership of property’. Title simply means a legal right to the property.