Receiving Module

Question 1

Receiving (Elements)

Answer 1

Crimes Act 1961 Section 246
* 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 2

Three elements to be proved

Answer 2

• 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.

Question 3

Possession (Case Law)

Answer 3

R v COX
The physical or potential custody or control and the sense of awareness by the accused that the substance was in his possession

CULLEN v R
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.

Question 4

Control over property

Answer 4

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

Question 5

Offence must be legally possible (Case Law)

Answer 5

R v DONNELLY
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.

Question 6

Property (Definition)

Answer 6

Crimes Act 1961 Section 2
Property includes real and personal property, and any estate or interest in any real and
personal property

Question 7

Received property (Case Law)

Answer 7

R v LUCINSKY
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.

Question 8

Concept of Title

Answer 8

Title is a right or claim to
the ownership of 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.

Question 9

Voidable Title

Answer 9

Title obtained by deception is referred to as ‘voidable 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.

Question 10

Voiding Title

Answer 10

Bring a civil claim seeking an order of the Disputes Tribunal or Small Claim tribual and seek a ruling from the circumstances provided.

Question 11

Knowing (Case Law)

Answer 11

R v Kennedy:
The guilty knowledge that the thing has been stolen or dishonestly obtained must
exist at the time of receiving.

Question 12

Reckless (Case Law)

Answer 12

Cameron v R:
the defendant recognised that there was a real possibility that his or her actions would bring about the proscribed result and
having regard to that risk those actions were unreasonable.

Question 13

Circumstantial Evidence of guilty Knowledge

Answer 13

• 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

Question 14

Evidence of Propensity

Answer 14

Propensity evidence holds relevance to a receiving charge, and may, where
permitted, be introduced as evidence

Question 15

Doctrine of Recent possession

Answer 15

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.