Some More

Question 1

Receiving 246 CA61

Answer 1

Everyone is guilty of receiving who receives any property stolen or obtained by any 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

Receiving 246(2)

Answer 2

For the purpose of this section, property that was obtained by any act committed outside NZ that is it had been committed in NZ

Would of constituted an imprisonable offence is subject to subsection (5) to be regarded as having been obtained by an imprisonable offence

5 - If a person is charged with an offence under the section in the property was obtained by an act committed outside of New Zealand it is to be presumed unless the person in charge puts the matter and issue that the doing of the act by which the property was obtained was an offence under the law of the place where the act was done

Question 3

R v cox

Answer 3

Position involves two elements.

The first the physical element is actual or potential physical custody or control.

The second the mental element is a combination of knowledge and intention, knowledge and the sense of an awareness by the accused at the substances in his possession and an attention to exercise possession

Question 4

Cullen v r

Answer 4

– Awareness that the item is where it is
– awareness that the item had been stolen
– actual possession control of the item and
– an intention to exercise that control over the item

Question 5

Control over property

Answer 5

Are we property is located at a place, over which the receiver has control, then the position must prove the receiver arrange for the property to be delivered there, or alternatively, that on discovering the property, he or she intentionally exercise control over it.

As noted above intent to process the property must also be satisfied

Control over property may still be exercised by a receiver when the property is in the possession of the receivers agent or servant – includes an innocent agent or party. Again the exercise of such control must be intentional

Question 6

R v Donnelly

Answer 6

We are 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 7

Property

Answer 7

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

The scope of the definition includes both tangible and intangible property

The offender must receive property which was stolen or obtained by an imprisonable offence

Question 8

R v Lucinsky

Answer 8

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 9

Concept of title

Answer 9

A right or claim to the ownership of property

Where the property is gained by deception, the offender gains both possession and title

Title gained through deception is passed to the offender as the property is exchanged willingly by the owner, whereas theft the property is taken without consent of the owner and no transfer of title occurs

Question 10

Voidable title

Answer 10

Title obtained by deception is referred as a voidable title.

This means the title can be voided by the seller (complainant). Although the title is voidable it is still a 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 acquired the property from him/her in good faith

This means an innocent party buys the property that has been obtained by deception and before the title has been voided, the innocent purchaser acquires good title to the property

Question 11

Voiding title

Answer 11

In order to void title the complainant must

Bring a civil claim seeking an order of the disputes tribunal or small claims court and seek a ruling from the circumstances provided

Question 12

R v Kennedy

Answer 12

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

Question 13

Cameron v r

Answer 13

Recklessness is established if

The defendant recognisers there’s a real possibility that

His actions would bring about a proscribed result

The proscribed circumstances exist

Having regard to the risk those actions were unreasonable

Question 14

Circumstantial evidence of guilty knowledge

Answer 14

• 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 good at an unusual time
• receipt of goods in an unusual way
• concealment of property to avoid detection
• removal of identifying marks or features
• steps taken to disguise property ie removal of serial numbers / painting
• lack of original packaging
• type of person goods received from
• mode of payments
• absence of receipt where receipt would usually be issued
• false statements as to the source of the goods
• false statements as to date of acquiring
• nature of explanation given ie false or inconsistent or no reasonable explanation
• false denial of knowledge, existence ect

Question 15

Evidence of propensity

Answer 15

Propensity evidence holds relevance to a receiving change and may where permitted be introduced as evidence in proceedings in relation to a receiving charge

Question 16

Property stolen to order

Answer 16

In situations where property is stolen to order the receiver of such stolen property is liable as a party to the principle offence, pursuant to s66(1) rather than a receiver under 246