RECEVING Flashcards
Section and Penalty
S246(1) CA61 7 Years Imp (Exceeds $1000) 1 Year Imp ($500 - $1000) 3 Months Imp (Under $500)
Elements
Receives
Any property stolen
OR obtained by any other imprisonable offence
Knowing the property to be stolen or so obtained
OR Being reckless whether or not the property had been stolen or so obtained
Legislation When is receiving complete
S246(3) CA61 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
R v Cox (Possession)
R v Cox
Possession involves two… elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as 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.
Cullen v R
Cullen v R - Possession for receiving, four elements
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.
Assisting in Disposal or Concealment of Stolen Property Must prove: Example Of note only
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.
R v Donnelly
R v Donnelly - Not an offence to receive
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.
Property
S2 CA61 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.
R v Lucinsky
R v Lucinsky - Property received must be
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.
Taking Legislation
S219(4) CA61 For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
Title and Voidable Title And how to void title
A right or claim to the ownership of the property.
If title is obtained by deception it is voidable title. To avoid title you must complete one:
• 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
R v Kennedy
R v Kennedy - Guilty Knowledge
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
R v Harney
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk
Circumstantial Evidence of Guilty Knowledge
Receipt • receipt of goods at an unusual place • receipt of goods at an unusual time • receipt of good in an unusual way • secrecy in receiving the property • type of person goods received from Value • mode of payment • purchase at a gross undervalue • absence of receipt where receipt would usually be issued Property • nature of the property, ie type, value, quantity • lack of original packaging • removal of identifying marks or features • steps taken to disguise property, ie removal / altering of serial numbers, painting Defendant • nature of explanation given, eg false or inconsistent or no reasonable explanation • false statements as to the source of the goods • false statements as to the date of acquisition • false denial of knowledge, existence etc • possession of recently stolen property • concealment of property to avoid discovery
Doctrine of Recent Possession
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.
