Receiving s246 CA 1961

Question 1

For Receiving, name the section, act, penalty and elements

Answer 1

Receiving
Section 246(1) C.A. 1961
7 Years (over 1000), 5 years (500-1000), and 3 months (under 500)

Elements:
1.1 Receives (R v Cox, Cullen v R, R v Donnelly)
1.2 Any Property Stolen OR obtained by any other imprisonable offence ( R v Lucinsky)
1.3 KNOWING that property to have been stolen or so obtained, OR Being reckless as to whether or not that property had been stolen or so obtained.

Question 2

The Act of Receiving requires the satisfaction of THREE elements, what are these?

Answer 2

1. There must be property that has been stolen or obtained by an imprisonable offence
2. The property MUST have been received by the defendant
3. Receive the property with the knowledge the property had been stolen, or illegally obtained, or reckless as to that possibility.

Question 3

When is the act of Receiving complete?

Answer 3

Under Section 246(3) the act of receiving is complete as soon as the offender has either jointly with the thief obtained possession or control over the property or helps with concealing or disposing the property. (guilty knowledge)

Question 4

Element 1.1 - Receives def

Answer 4

Receiving requires from one person to another. Receives with the knowledge that property had been stolen, or obtained by any other imprisonable offence, or was reckless to the possibility.
The act is complete once the defendant takes possession, or custody/control or conceals/disposes of property

Question 5

What was held in the case law R v Cox

Answer 5

Involves both physical and mental elements.
Physical means to obtain physical custody or control of something.
Can be actual, or potential.
Mental is the combination between knowledge and intention. Knowledge that the person has to possess it and the intention to possess the item.

Question 6

What was held in Cullen v R

Answer 6

1. Awareness of the items location
2. Awareness that the item is stolen
3. Control of the item whether it be actual, or potential
4. An intention to possess the item

The prosecution must prove the receiver intentionally exercised control over the property.

Question 7

What test does Cullen v R provide?

Answer 7

It provides a test in relation to possession for receivers of stolen property.
Divided into TWO general areas (guilty knowledge, and control of the item).

Question 8

When assisting in disposal or concealment of stolen property what does the prosecution have to prove?

Answer 8

Both actual assistance, and guilty knowledge

Question 9

The offence must be possibly legal, outline what was held in R v Donnelly?

Answer 9

When property is returned to the owner or legal title to any such property that 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 obtained dishonestly.

Question 10

Define Property

Answer 10

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

Includes both tangible and intangible.

Question 11

With the element ‘ANy property stolen’ what can stolen mean?

Answer 11

Theft - When the offender causes the property to move or causes it to be moved.

Question 12

Element 1.3 - Knowing that at the time of receiving the property that it had been stolen. What is knowledge?

Answer 12

Knowledge - Simister & Brookbanks - Knowing or correctly beliving. The defendant may believe something wrongly but cannot know it is false.

Question 13

In regards to knowledge what was held in R v Kennedy:

Answer 13

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

Question 14

Being reckless as to whether or not the property had been stolen or obtained so. What does it mean by ‘Reckless’?

Answer 14

Reckless means taking a deliberately and consciously taking an unjustified risk.

Question 15

Case Law Cameron v R

Answer 15

Recklessness is established if the defendant recognised that there was a real possibility that:
- his or her actions would bring about the proscribed result, and/or
- the proscribed circumstances existed, and
- having regard to the risk those actions were unreasonable.

Question 16

Name some factors that would establish guilty knowledge:

Answer 16

• possession of the stolen property
• nature of the property (i.e. value)
• purchase at a gross undervalue (i.e. car for 5000 where its worth 30000)
• secrecy of receiving the goods
• lack of original packaging.
• mode of payment
• steps taken to disguise property or hide/alter property
• absence of proof of documentation

Question 17

What does the Doctrine of recent possession rule allow for?

Answer 17

Proof of theft or receiving by way of circumstantial evidence. It is important where no other material is available.
Basically the possessor of the stolen property is either the thief or the receiver.

Question 18

Name two factors that could suggest possession is recent?

Answer 18

• Nature of the property and
• The surrounding circumstances.

Question 19

Is receiving property that was obtained outside of New Zealand an offence?

Answer 19

No, its only an offence when the receiving takes place in New Zealand, although the act can take place outside of NZ