Receiving - Lesson Notes

Question 1

The act of receiving

Answer 1

There must be property which has been stolen or has been obtained by an imprisonable offence
The accused must have received that property (from another person)
The receiver has the knowledge that the property has been stolen or illegally obtained or being reckless as to that possibility

Question 2

When is the act complete

Answer 2

Section 246(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 3

In order to avoid title, one of the following must be completed

Answer 3

communication directly with the deceiver
taking all reasonable steps and possible steps to bring it to the deceivers notice
advising the police of the circumstances of the deception

Question 4

Circumstantial evidence of guilty knowledge

Answer 4

purchase at gross undervalue
secrecy in receiving the property 
receipt of goods at an unusual place / time / unusual way
concealment of property to avoid discovery
removal of identifying marks or features
lack of original packaging
mode of payment
absence of of receipt

Question 5

Receiving - Section, legislation

Answer 5

Section 246, Crimes Act 1961
(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 6

Penalties for receiving

Answer 6

Section 247, Crimes Act 1961
Every person who is guilty of receiving is liable as follows:
(a) if the value of the property received exceeds $1,000, to imprisonment for a term not exceeding 7 years:
(b) if the value of the property received exceeds $500 but does not exceed the sum of $1,000, to imprisonment for a term not exceeding 1 year:
(c) if the value of the property received does not exceed $500, to imprisonment for a term not exceeding 3 months.

Question 7

What is required to be proved

Answer 7

The ingredients of receiving are:
• 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 offnce, or
• being reckless as to whether or not the property had been stolen or so obtained.

Question 8

The act of receiving requires the satisfaction of three elements:

Answer 8

• There must be property which has been stolen or has been obtained by an imprisonable offence.
• The accused must have “received” that property, which requires that the receiving must be from another (you cannot receive from yourself).
• The accused must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility.

Question 9

When the act is complete

Answer 9

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 10

Ideal possession - case law

Answer 10

Warner v Metropolitan Police Commissioner [1969] 2 AC 256
Ideally, a possessor of a thing has complete physical control over it; he has knowledge of its existence, its situation and its qualities; he has received it from a person who intends to confer possession of it, and he has himself the intention to possess it exclusively of others.

Question 11

Constructive possession - case law

Answer 11

Sullivan v Earl of Caithness [1976] 1 All ER 844
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 12

The offence must be legally possible

Answer 12

It must be legally possible to commit the offence of receiving. As discussed in the ‘attempts’ chapter; where property has been restored, directly to the owner or via police acting as the owner’s agent, there can be no conviction. This because the property is no longer deemed stolen.

Question 13

R v Lucinsky

Answer 13

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.

Example:
Where a thief steals $100 in $20 notes and subsequently provides one of these notes to a receiver, the offence of receiving is committed (this where the other elements are also satisfied). If, in the same circumstances, the thief visits a bank and exchanges the $20 notes for a smaller or larger denomination and then completes an exchange with the would be receiver, no offence is committed even where the person receiving the funds is aware of the initial theft. This is because the notes exchanged are not the property originally stolen or part thereof

Question 14

Concept of title

Answer 14

Title means ‘a right or claim to the ownership of property …’: Oxford Concise Dictionary (8th ed). Title or ownership of a thing is the legal right to possession of that thing.
Where property is obtained by deceptive means the offender gains both possession and title. However the type of title gained by the offender has limitations.
Title is passed to the offender in these circumstances, as the property is generally handed over to the offender by the owner, whereas with theft the property is taken without the consent of the owner and no transfer of title occurs.

Question 15

Voidable title

Answer 15

Title obtained by deception is referred to as ‘voidable title’. This means that the title can be avoided by the seller (complainant). The issue is that although the title is voidable, it is still a title.
April 2015 – Association Offences 83
Until the title is avoided, the person committing the deception has title to the property concerned and is able to confer a good title on to anyone who subsequently acquires the property from him in good faith.
This means that where an innocent party buys property that has been obtained by deception and before the title has been avoided, the innocent purchaser is said to have acquired good title to the property. Where the title is avoided prior to the purchase by the innocent party, they do not acquire title to the goods.

Question 16

How to void title

Answer 16

In order to avoid title one of the following must be completed:
• communicating directly with the deceiver
• taking all reasonable and possible steps to bring it to the deceiver’s notice, eg sending a letter or email
• advising police of the circumstances of the deception.

Question 17

Knowing that property to have been stolen or so obtained - case law

Answer 17

R v Kennedy [2001] 1 NZLR 314; (2000) 18 CRNZ 501 (CA).

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

Question 18

Circumstantial evidence of guilty knowledge

Answer 18

• possession of recently stolen property
• nature of the property, ie type, value, quantity
• purchase at a gross undervalue
• secrecy in receiving the property
• receipt of goods at an unusual place
• receipt of goods at an unusual time
• receipt of good in an unusual way
• concealment of property to avoid discovery
• removal of identifying marks or features
• steps taken to disguise property, ie removal / altering of serial numbers, painting
• lack of original packaging
• type of person goods received from
• mode of payment
• absence of receipt where receipt would usually be issued
• false statements as to the source of the goods
• false statements as to the date of acquisition
• nature of explanation given, eg false or inconsistent or no reasonable explanation
• false denial of knowledge, existence etc

Question 19

Doctrine of recent possession

Answer 19

It is the 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.

Question 20

Police acting as agent

Answer 20

Police are deemed to have an implied authority from the owner to recover and restore property where a complaint is lodged. This means that police possession of recovered property also equates to restoration of that property to the rightful owner
Where property has been restored, directly to the owner or via police acting as the owner’s agent, there can be no subsequent receiving, this because the property is deemed no longer stolen.

Question 21

Legally impossible - case law

Answer 21

R v Donnelly (1970) NZLR 980
Where stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained.

Question 22

Can you be charged if property was stolen outside NZ

Answer 22

yes - Property obtained by any act committed outside New Zealand that, if it had been committed in New Zealand, would have constituted an imprisonable offence is, subject to subs(5), to be regarded as having been obtained by an imprisonable offence (s246(2)).

Question 23

Constructive possession can be described as where:

Answer 23

− the receiver is able to exercise control over the property
− an employee or agent of the receiver has possession or control over the property with the receiver’s knowledge and consent
− the thief or another person retains, with the receiver, joint possession or control over the property.
− Actual physical possession by the receiver is not required.