Receiving - Module Flashcards
Receiving - Module
Introduction
Receivers of property stolen or obtained by an imprisonable offence
generally fall into two main categories:
* opportunists taking advantage of a ‘bargain’, or
* professionals who receive stolen goods and organise crimes as a business
operation.
This chapter focusses on the offences contained within s246, Crimes Act
1961.
When investigating receiving offences, you should be wary of doing
anything that could be interpreted as recovering the property before the
suspect has taken control of it.
Receiving 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.
(2) For the purposes of this section, property that was 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 subsection (5), to be regarded as having been obtained by an imprisonable offence.
(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.
(4) If:
(a) any property stolen or obtained by any other imprisonable offence has been
returned to the owner; or
(b) legal title to any such property has been acquired by any person—
a subsequent receiving of it is not an offence, even though the receiver may know
that the property had previously been stolen or obtained by any other imprisonable offence.
(5) If a person is charged with an offence under this section and the property was
obtained by an act committed outside New Zealand, it is to be presumed, unless the person charged puts the matter at issue, that the doing of the act by which the
property was obtained was an offence under the law of the place where the act was done.
Punishment of receiving
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.
ELEMENTS
What is required to be proved
The elements 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.
Under s247, the value of the relevant property determines the appropriate penalty.
The “Act of Receiving”
The act of receiving requires the satisfaction of three elements:
- There must be property which has been stolen or has been obtained by an
imprisonable offence. - The defendant must have “received” that property, which requires that the
receiving must be from another (you cannot receive from yourself). - The defendant must receive that property in the knowledge that it has been
stolen or illegally obtained or being reckless as to that possibility.
Usually there is no need to prove dishonesty and that the only mental
element required is proof of knowledge or recklessness as to the property
having previously been stolen. There may be exceptions.
In the case of R v Ma37 the Court stated: “there is effectively an overarching
additional mental element to the offence. It will be necessary for the Crown
to negative the accused’s explanation. It must satisfy the jury beyond
reasonable doubt that the altruistic explanation (whatever it may be) is
untrue.”
When the act is complete
Section 246(3,) Crimes Act 1961
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
If there is guilty knowledge (as described in s246) at the point that the act of
receiving is complete, then the offence of receiving has been committed.
It is not necessary that the receiver take personal physical custody of the
property in question. It is sufficient if there is joint or sole possession or
control over the property or where the person aids in concealment or
disposal of the same.
Possession
In R v Cox38 it was found that both a physical and mental element
must be proved to satisfy possession.
R v Cox [1990] 2 NZLR 275
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.
The physical element requires the physical custody or control over
the item in question and can be either “actual” or “potential”.
Actual possession arises where the thing in question is in a person’s
physical custody or control.
Potential possession arises when the person has the potential to have
the thing in question in their control. For example, storing the thing
in question at an associate’s house or through an agent.
The mental element is a combination of both knowledge that the
person possesses the item in question, and an intention to possess
the item.
Possession for receiving
Cullen v R [2013] NZCA 413
There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.
The four elements outlined in Cullen39 provide a test in relation to
possession for receivers of stolen property.
It is suggested that the test provided can be utilised in relation to receivers of
dishonestly obtained property where the focus would be on knowledge of the
dishonest obtaining.
The test is divided into two general areas, firstly guilty knowledge and
secondly, control of the item.
Unfortunately these elements are seldom all present in situations in which
the Courts have to deal, and where one or more of them is lacking, or
incompletely present, it has to be decided whether the given approximation
is such that possession may be held sufficiently established to satisfy the
relevant rule of law.
Where a person is unaware of the existence of the property they cannot be
said to be in possession of it.
Control over property
Where property is located at a place, over which the receiver has control,
then the prosecution must prove the receiver arranged for the property to be
delivered there, or alternatively, that on discovering the property, he or she
intentionally exercised control over it. As noted above, intent to possess the
property must also be satisfied.
Control over property may still be exercised by a receiver when the property
is in the possession of the receiver’s agent or servant (includes an innocent
agent or party). Again, the exercise of such control must be intentional.
Assisting in disposal or concealment of stolen property
In situations where the prosecution alleges that the defendant assisted in the
disposal or concealment of stolen or dishonestly obtained property, it must
prove both actual assistance and guilty knowledge. The doctrine of recent
possession, discussed later in this chapter, has no application in such
circumstances.
Example:
Assisting in the sale of stolen property although the person has not
physically dealt with or possessed the property.
The receiver need not have physically dealt with or actually obtained
possession of said property. Acting as an intermediary or assisting in the sale
of said property for a share of the proceeds is sufficient as long as it can be
shown either that the defendant acquired (joint or sole) possession, or control
over the property or that they aided in concealing or disposing of the
property.
The offence must be legally possible
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.
R v Donnelly [1970] NZLR 980
Where stolen property has been returned to the owner or legal title to any such
property has been acquired by any 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.
Proving dishonesty
There is conflicting case law as to whether the prosecution must also prove
an element of dishonesty. In R v Crooks40 , it was held that there is an
implied requirement that the accused act with a dishonest intention:
Crooks was applied in R v Marshall41 where the Court of Appeal held that
there is an implied requirement that the accused act with a dishonest
intention. People knowingly receiving stolen property with the sole
unconditional intention of returning it to the lawful owner or to police
commit no offence. Where conditions are imposed on the return by such a
person then the alternative applies.
Property Property is defined in section 2, Crimes Act 1961.
Section 2, Crimes Act 1961
Interpretation
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.
The scope of the definition includes both tangible and intangible property.
The offender must receive property which was stolen or obtained by an
imprisonable offence.
There is no requirement that, when received, the property be in the same
condition or state as when first stolen, nor is there a requirement that the
whole of what was stolen be received. Receiving a part of what was stolen
will suffice.
R v Lucinsky [1935] NZLR 575 (CA).
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.
The statutory interpretation is extended to include property obtained by any
act of dishonesty and is not restrictive to offences committed under the
Crimes Act 1961. Money, being the proceeds of drug dealing, is property
obtained by dishonest means.
Stolen or obtained by any imprisonable offence
The word “stolen” was included to ensure that the offence of receiving
encapsulated property stolen by conversion. The critical question will be
whether the property was obtained by theft or by some other crime.
Theft or stealing is defined in s219 of the Crimes Act 1961. “Taking” is not
specifically defined by statute but can be read, for the purposes of this
section, in conjunction with the definition of theft as contained within s219 of
the Crimes Act 1961
Section 219(4), Crimes Act 1961: Interpretation
For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
‘Obtaining by deception’ is defined in s240 of the Crimes Act 1961.
In Anderson v Police42 it was found that “obtain” has its ordinary meaning of
“acquired” or “got” in the sense of achieving physical control over the goods
in question. The word does not cover the possibility that the goods were
lawfully acquired and then dishonestly converted to the thief’s own use, and
the onus is on the prosecution to eliminate such an inference beyond
reasonable doubt.
In R v Nichols43 it was further found that property has not been “dishonestly
obtained” in situations where the property concerned is freely and voluntarily
handed to an intermediary by the rightful owner, before then being dealt with
in an illegal manner (such as the illegal importation of birds and eggs) before
then being acquired by another party. This because the property is not said to
have been obtained by a crime.
While in most cases where receiving is alleged, the property will have been
stolen or obtained by deception, the statutory formula can apply in quite
different contexts. Money obtained by the sale of prohibited drugs will be
obtained by an imprisonable offence.
It is essential to a receiving charge that the prosecution prove the property in
question was stolen or obtained by any other imprisonable offence, this proof
may be direct or circumstantial.
Conviction to be regarded as conclusive proof of guilt
Section 49 of the Evidence Act 2006 provides that the conviction of an
individual is conclusive proof of that person’s guilt, unless allowed to be
contested by the judge in later proceedings. You are therefore able to rely on
the conviction of the thief or obtainer as proof of the offence relating to the
property stolen or obtained. Despite this you must still prove any conduct or
mental elements of receiving against the defendant.
Concept of title
For a fuller explanation of the concept of title refer to the Detective Training
Programme module - Deception CIB008.
Title is defined by the Oxford Dictionary44 as meaning ‘a right or claim to
the ownership of property’. Title or ownership of property is the legal right
to possession of that property.
Where property is obtained by deceptive means the offender gains both
possession and title.
Title gained by deception is passed to the offender, as the property is
exchanged willingly by the owner, whereas with theft the property is taken
without consent of the owner and no transfer of title occurs.
Voidable title
Title obtained by deception is referred to as ‘voidable title’. This means that
the title can be voided by the seller (complainant). Although the title is
voidable, it is still a title.
Until the title is voided, the person committing the deception has title to the
property concerned and is able to confer this title on to anyone who
subsequently acquires the property from him/her in good faith.
This means that where an innocent party buys property that has been
obtained by deception and before the title has been voided, the innocent
purchaser has acquired good title to the property.
Voiding title
In order to void title, the complainant must:
* bring a civil claim seeking an order of the Disputes Tribunal or Small
Claim tribual and seek a ruling from the circumstances provided.
The effect of Section 246(4)
By virtue of s246(4), property is no longer deemed stolen, it cannot be
‘received’ once that property has been re-acquired by the legal owner or
where legal title has been acquired by another person. This includes
situations where the receiver is aware that the property was stolen or
obtained by any other imprisonable offence.
On the contrary, where the title has already been voided prior to being
transferred to a third party, it leaves the deceiver with possession only. Thus,
the deceiver is unable to confer title to another. In this situation the
subsequent receiving of that property is an offence.
Knowing that property to have been stolen or so obtained
Simester and Brookbanks45 suggest knowing means “knowing or correctly
believing”. They further premise that “the defendant may believe something
wrongly but cannot “know” something that is false”.
It also means knowing or believing a set of circumstances so as to be free from
doubt.
The prosecution will, in general terms, rely on inferences from the
circumstances to establish that the accused knew the property was stolen or
obtained by an imprisonable offence, or was reckless as to that possibility at
the time of its receiving.
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.
It was concluded in Rex v Stone46 that a person who receives innocently does
not commit an offence under this section if he or she retains the property dishonestly after acquiring such knowledge, although such retention may
amount to theft by dishonestly dealing with the property.
Satisfaction of the offence does not require knowledge of the particular
imprisonable offence from which the thing was obtained; therefore it does
not matter in circumstances where a receiver thinks that property was stolen,
when in fact it was obtained by deception
Reckless as to whether or not the property had been stolen or so obtained:
Acting “recklessly” involves consciously and deliberately taking an
unjustifiable risk.
It must be proved not only that the defendant was aware of the risk and
proceeded regardless (a subjective test), but also that it was unreasonable for
him to do so (an objective test).
The Supreme Court in Cameron v R47 . The defendants were charged withdealing in a “controlled drug analogue”, a Class C controlled drug, contrary
to the Misuse of Drugs Act 1975. The jury found the substance was
substantially similar to a Class B controlled drug, meeting the threshold for
a “controlled drug analogue”. Recklessness is a test based on the
defendant’s appreciation of the risk of the offence and their decision to run
that risk anyway.
Cameron v R
Recklessness is established if:
(a) the defendant recognised that there was a real possibility
that:
(i) his or her actions would bring about the proscribed
result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
Part (a) of the Cameron test is completely subjective. A “real
possibility” is substantively the same as something that “could well
happen” (as stated in R v Harney [1987] 2 NZLR 576), formally the
leading case on the Recklessness test. Both merely require that the
defendant has recognised the risk the offence anticipates as being
possible. The defendant does not need to consider the risk significant.
Part (b) is subjective and objective. It looks at whether the defendant’s
actions were objectively reasonable given the risk the defendant understood.
The Supreme Court in Cameron held that if the actions of the defendant have
no social utility, the running of any risk subjectively appreciated is
unreasonable and thus reckless. Where there is some social utility in the
actions of the defendant, whether those actions were unreasonable will
depend on “whether a reasonable and prudent person would have taken the
risk”.
An example of no social utility: game of ‘Russian roulette’ or personal
violence with a risk of serious injury or death.
Am example of high social utility: surgeon undertaking a risky but
potentially life saving surgery.
In R v Tipple48 the Court suggested as a general rule “recklessness” is to be
given the subjective meaning. The concept is subjective in that it requires
that the offender know of, or have a conscious appreciation of the relevant
risk, and it may be said that it requires “a deliberate decision to run the risk”.
The Court in R v Briggs49 found that under s246(1) knowledge may also be
inferred from wilful blindness or a deliberate abstention from making
inquiries that would confirm the suspected truth.
Circumstantial evidence of guilty knowledge
The circumstances in which property was received may alone be sufficient
to justify a finding that the property was stolen, and an inference of guilty
knowledge.
The circumstances commonly relied on as evidence of guilty knowledge
on the part of a receiver can often be demonstrated circumstantially, for
example, by:
* 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.
While not conclusive evidence of guilty knowledge, these are matters that
the courts will contemplate and a combination of some of the factors above
may be sufficient to establish the necessary knowledge or recklessness
required by the statute
Direct evidence of guilty knowledge
It is possible to call the original thief / obtainer to give evidence against the
receiver.
However, the associated defendant will only be compellable to give evidence
against the defendant if the associated defendant is being tried separately
from the defendant or the proceeding against the associated defendant has
been determined/concluded (in one of the ways set out in s73(2)(b) of the
Evidence Act 2006). Where these requirements are not met the thief /
obtainer is not compellable as a witness: s73 Evidence Act 2006.
Where the only evidence implicating a receiver is that of the thief or
obtainer, a judicial warning as to a motive to lie may be required.
Evidence of propensity
Evidence of propensity is governed by the Evidence Act 2006, ss40, 41, 42
and 43.
Propensity evidence holds relevance to a receiving charge, and may, where
permitted, be introduced as evidence in proceedings in relation to a receiving
charge.
Doctrine of recent possession
The doctrine of recent possession applies to receiving as well as to theft.
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.
The doctrine of recent possession rule allows for proof of theft or receiving
by way of circumstantial evidence. In circumstances where a person is found
in possession of stolen property reasonably soon after the theft, an inference
may be drawn that the person in possession either stole the property or
received it from the thief.
This doctrine is important where no other material evidence is available. But
this presumption does not arise unless there is proof that the property has in
fact been stolen or obtained by another crime.
The doctrine applies only to cases where a defendant is found in possession
of property recently stolen or obtained dishonestly.
The doctrine of recent possession has no application to the concealing or
disposition of property.
Where there is no proof of any theft, a person in possession of property is not
bound to account for their possession of it. The onus to do so lies with the
prosecution.
Whether possession is ‘recent’ is dependant on:
* the nature of the property, and
* the surrounding circumstances.
Police acting as agent
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.
It is the subject of debate as to when there has been a restoration of that
property to the owner, for example:
- Inspection and recovery of a stolen car by police is deemed to constitute a
restoration of that car to the owner (meaning it is no longer stolen). - Once stolen property has been identified (recovered) by police, it is then
legally impossible to commit the offence of receiving or attempting to
receive (give consideration to a charge of conspiracy to receive). - Police surveillance or observations of stolen property, such as a vehicle in
transit or within a thief’s possession, without police assuming either
possession or control, in order to apprehend a receiver, might not constitute
a restoration of property. Such mere observations might not equate to
restoration, but rendering the vehicle immobile may.
Each case will be decided on its particular facts.
So as to avoid a determination that police action amounted to restoration of
property to the owner, adopt the procedure of merely watching the stolen
property without intervention. Delay seizure until the suspect uplifts the
property concerned.
Accessories after the fact, and receivers
137, Criminal Procedure Act 2011
Proceedings against parties to offences, accessories, and receivers
(1) This section applies to every person charged—
(a) as a party to an offence (not being the person who actually committed it); or
(b) with being an accessory after the fact to any offence; or
(c) with receiving property knowing it to have been stolen or dishonestly
obtained.
(2) Every person to whom subsection (1) applies may be proceeded against and
convicted for the offence whether or not the principal offender or any other party to the offence or the person by whom the property was obtained has been proceeded against or convicted.
(3) Every person to whom subsection (1) applies may be proceeded against and
convicted—
(a) alone as for a substantive offence; or
(b) jointly with the principal or other offender or person by whom the property
was stolen or dishonestly obtained.
(4) If any property has been stolen or dishonestly obtained, any number of receivers at
different times of that property, or of any part or parts of it, may be charged with
substantive offences, and may be tried together.
Receiving from persons unknown
Charges may be formulated in respect of receiving ‘from persons unknown’
in circumstances where it is not known who committed the offence by which
the property was obtained, providing all elements of the offence can be
proved.
Property stolen to order
In situations where property is stolen to order the receiver of such stolen
property is liable as a party to the principal offence, pursuant to s66(1) rather
than as a receiver under s246.
Property obtained outside New Zealand
Receiving property that was obtained by any act committed overseas is an
offence under New Zealand law only if the receiving takes place in
New Zealand.
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)).
If a person is charged with an offence under this section and the property
was obtained by an act committed outside New Zealand, it is to be
presumed, unless the person charged puts the matter at issue, that the doing
of the act by which the property was obtained was an offence under the law
of the place where the act was done (s246(5)).
Party to receiving
By virtue of s66(1) of the Crimes Act 1961, where a thief delivers stolen
property to a receiver who, to his knowledge, is aware that the property has
been dishonestly obtained, the thief is liable as a party to that receiving that
has been committed by the receiver.
Penalty
The value of the property received determines the penalty that may be
imposed. It is therefore important that the value of the property concerned is
included in the charging document. Where the value is unknown or nominal,
make reference to s247(c).
