Recieving Flashcards
What is the section and penalty for receiving?
- section 246(1) CA61
7 years imprisonment (exceeds $1000)
1 year imprisonment ($500-$1000)
3 months imprisonment (under $500)
What are the elements of receiving?
- receives
- any property
- obtained by any other imprisonable offence
- knowing the property to be stolen it so obtained by any other imprisonable offence. OR
- being reckless as to whether or not the property had been stolen or so obtained
“The act of receiving”
The act of receiving requires the satisfaction of what three elements?
- there must be property which has been stolen or has been obtained by any other imprisonable imprisonable offence
- the defendant must have “received” that property, which requires that the recording must be from another (you cannot receive from yourself).
- the defendant must receive that property on the knowledge that it has been stolen or illegally stolen obtained or being reckless as to that possibility.
The “act of receiving”
When is that act complete?
Section 246(3) CA61
- 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)
Possession
What must be proven in regard to possession?
- that both the physical and mental element must be proved to satisfy possession.
R v COX
Possession involves two elements. The first, often. Called the physical element, is the actual or potential physical custody or control. The second, often described as the mental element, is a combo of knowledge and intention; knowledge in the sense of an awareness by accessed that the substance is in his possession and an intention to exercise possession.
Possession for receiving.
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 interior to exercise that control over the item.
What two general area are the test divided into?
- Guilty knowledge
- Control of item
Control over property
What must prosecution prove?
- If the property is located at a place over which the recover has control, then the prosecution must prove the receiver arranged for the property to be delivered there.
Assisting in disposal
Or concealment of stolen property
What must be proven?
- 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.
What does it mean by the offence must be legally possible?
- it must be legally possible to commit the offence of receiving.
R v DONALLY
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 such 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 any real and personal property, and any estate or interest in any real and personal property, money, electricity, and any debt. Anything in action, and any other right or interest.
Both tangible and intangible
R v LUCINSKY
The property received must be the property stolen or legally 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
Section 219(4) CA61
- for tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved
What is the concept of title?
- ‘a right of claim of ownership of property’ Title or ownership of property is the legal right to possession of that property.
Voidable title
If title id obtained by deception it is voidable title
How must the complainant void the title?
- Make police aware immediately
- make all reasonable attempts to contact the offender.
- bring a civil claim seeking an orders if the disputes tribunal or small claim tribunal and seek a ruling from the circumstances provided
R v KENNEDY
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
Reckless as the whether or not the property had been stolen or 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 (subjective test), but also that it was unreasonable for him
To do so (objective test)
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 out the prescribed result; and/or
(ii) the prescribed circumstances existed;
And
(b) having regard for that risk those actions were unreasonable.
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.
What are example of circumstantial evidence that can be relied on as guilty knowledge on the part of the receiver?
- value
• mode of purchase
• purchasing at gross undervalue
• absence of receipt where receipt would usually be issued - property
• nature of the property
• lack of original packaging
• removal of identifying marks or features
• steps taken to disguise property - defendant
• nature of explanation given
• false statements as to source of goods
• false statement as to date of acquisition
• possession of recently stolen property.
• concealment - Receipt
• receipt of goods at unusual place
• receipt of goods at an unusual time
• receipt of goods in unusual way
• secrecy in receiving the property
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.
Theft legislation
S219(1) CA61
Dishonestly an without claim of right, takes any property with intent to deprive any owner permanently of that property or of any interest in that property
Obtain legislation
S217 CA61
- To obtain or retain for himself, herself or any other person
Police acting as agent
- Police are deemed to have implied authority from the owner to recover and restore property where a complaint is logged. This means that police possession of recovered property also equates to restoration of that property to the rightful owner
Accessories after the fact, and receivers
137 Criminal procedure act 2011
