*Receiving - s246(1)

Question 1

Receiving - s246(1) CA1961

• 7yrs < $1000
• 1yrs $500 - $1000
• 3mth <$500

Answer 1

• Everyone 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 2

The act of receiving requires the satisfaction of 3 elements

Answer 2

• There must be property which has been stolen or obtained by an imprisonable offence.
• The defendant must have received that property, which requires that the receiving must be from another.
• The defendant must receive the property knowing it’s been stolen or illegally obtained, or be reckless to that possibility.

Question 3

When is the act of receiving complete?
- s246(3)

Answer 3

The act is complete as soon the offender has, either exclusively or jointly with the thief, obtained possession of, or control over, the property or helps in concealing or disposing of the property.

Question 4

COX
- Possession

Answer 4

Possession involves 2 elements:

• The physical element, is actual or potential physical custody or control.
• The mental element is a combination of knowledge & intention.

Knowledge in the sense of an awareness by the accused that the substance is in his possession & an intention to exercise possession.

Question 5

CULLEN
- 4 elements

Answer 5

There are four elements of possession for receiving:

• Awareness that the item is where it is.
• Awareness that the item has been stolen.
• Actual or potential control of the item.
• An intention to exercise that control over the item.

Question 6

DONNELLY
- Offence must be legally possible

Answer 6

Where stolen property has been returned to the owner or legal title 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 7

Property
- s2 CA61

Answer 7

Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, & anything in action, and any other right or interest.

Question 8

Theft or stealing
- s219 CA61

Answer 8

Theft is committed by a taking when the offender moves the property or causes it to be moved.

Question 9

LUCINSKY
- Property received

Answer 9

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

Question 10

Knowing
- Simester & Brookbanks

Answer 10

Knowing means knowing or correctly believing… The belief must be a correct one, where the belief is wrong a person cannot know something.

Question 11

KENNEDY
- Guilty knowledge

Answer 11

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

Question 12

CAMERON
- Recklessness

Answer 12

Recklessness is established if:

• The defendant recognised that there was a real possibility that his or her actions would bring the proscribed result; and / or the proscribed circumstances existed; and
• Having regard to that risk those actions were unreasonable.

Question 13

Title
- Definition

Answer 13

• A right or claim to the ownership of property.

Title or ownership of property is the legal right to possession of that property.

Question 14

Concept of title

Answer 14

• Where property is obtained by deception, the offender gets possession and title.
• This title has limitations and is referred to as voidable title.
• Title is passed to the offender when the property is handed over by the owner under deception.
• With theft, the property is taken without the owner’s consent, so 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 voided by the seller.
• Although the title is voidable, it is still title.

Question 16

How can title be voided?
- CATS

Answer 16

• Communication with the deceiver.
• Advising Police the goods were obtained by fraud.
• Taking all possible steps to bring it to the deceiver’s attention (letter, phone, txt).
• Small Claims Tribunal.

Question 17

Circumstantial evidence of guilty knowledge
- Examples x 8

Answer 17

• 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 goods in an unusual way
• Removal of identifying marks or features
• Lack of original packaging
• Type of person goods received from
• Mode of payment
• Absence of receipt where receipt would usually be issued

Question 18

Doctrine of recent possession

Answer 18

It’s the presumption that possession of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify that the possessor is either the thief or receiver, or has committed another offence associated with the theft.