Recieving

Question 1

Elements of receiving S 246(1) CA 1961

Got this liability

Answer 1

• Recieves
• Any property stolen OR
• Obtained by any other imprisonable offence
• Knowing at the time of recieving the property that it had been stolen OR
• Being reckless as to whether or not the property had been stolen or so obtained

Question 2

(S/A) Concept of title

Answer 2

Where property is obtained by deceptive means the offender gains both possession and title. However, the type of title gained by the offender has limitations and referred to as voidable title.
Title is passed to the offender as the property is generally handed over to the offender by the owner under deception. Whereas with theft the property is taken without the consent of the owner and no transfer of title occurs.

Question 3

(S/A) What is voidable title

Answer 3

Title obtained by deception is referred to as ‘voidable title’. This means that the title can be avoided by the seller (complainant). Until the title is avoided, the person committing the deception has title to the property concerned and is able to confer a good title on to anyone who subsequently acquires the property from him in good faith. Where an innocent party buys property that has been obtained by deception and before the title has been avoided, the innocent purchaser is said to have acquired good title to the property. Where the title is avoided prior to the purchase by the innocent party, they do not acquire title to the goods.

Question 4

(S/A) In order to avoid title one of the following must be completed:

Answer 4

1. Communicating directly with the deceiver
2. Taking all reasonable and possible steps to bring it to the deceiver’s notice, eg sending a letter or email
3. Advising police of the circumstances of the deception

Question 5

(S/A) The circumstances commonly relied on as evidence of guilty knowledge on the part of a receiver can often be demonstrated circumstantially by:

Need to know 8x

S/A

Answer 5

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

Question 6

• The act of receiving requires the satisfaction of 3 elements

Answer 6

1. There must be property which has been stolen or has been offence obtained by an imprisonable
2. The defendant must have received that property, which requires that the receiving must be from another
3. The defendant must receive that property in the knowledge that has been stolen or illegally obtained, or being reckless to that possibility

Question 7

• When is an act complete?

Answer 7

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

Question 8

S/A The offence must be legally possible R V Donnelly

S/A

Answer 8

Where stolen property has been returned to the owner or legal title has been acquired by any person, it is not an offence to receive it, even though the receiver may know that the property had been stolen or dishonestly obtained.

Question 9

*Property

S/A

Answer 9

Property includes real and personal property, and any estate or interest in any real and personal property

Question 10

R V Lucinsky

M/C

Answer 10

The property received must be the property stolen or illegally obtained and not another item which the property had been exchanged or which are the proceeds.

Question 11

S/A M/C R V Cullen

Answer 11

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
(d) an intention to exercise that control over the item

Question 12

S/A Doctrine of recent possession

S/A

Answer 12

Person found in possession of “recently” stolen property, police can assume that this person is either the THIEF or the RECEIVER of the stolen goods…- unless there is a good explanation why they legally have the property

eg basically… it means that if an item is recently stolen , and it is found in a short period of time with another person - JOHN… - then one can assume that JOHN is either the thief or the receiver of the stolen goods.

Question 13

R V Kennedy

M/C

Answer 13

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

Question 14

R V Cox

Answer 14

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