RECEIVING - Definitions

Question 1

RECEIVES 246(3) CRIMES ACT 1961

Answer 1

RECEIVES SECTION 246(3), CRIMES ACT 1961

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 the property.

Question 2

POSSESSION

Answer 2

POSSESSION

Possession may be actual or constructive.

Question 3

ACTUAL POSSESSION + CASE LAW

Answer 3

ACTUAL POSSESSION

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

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 + CASE LAW

Answer 4

CONSTRUCTIVE POSSESSION

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 or at their behest, even though for one reason or another they may be kept at another location.”

Question 5

RECKLESSNESS + CASE LAW

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 + CASE LAW

Answer 6

PROPERTY - Section 2, Crimes Act 1961

Property includes any real or personal property and any estate or interest in any real or personal property (money or electricity) and anything in action and any other right or interest.

R v LUCINSKY

The property received must be property stolen or illegally obtained and not some other item in which it has been exchanged or which are the proceeds.

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 + CASE LAW

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

” A legal right to the property”