Receiving Stolen Property
Crimes Act 1900 (NSW), ss 187–188
The elements of the offences are —
that the property referred to in the indictment had been stolen, “the stealing whereof amounts to a serious indictable offence”: Crimes Act 1900, s 188:
“Stealing” for the purposes of both s 188 and s 189 (which deals with minor indictable offences) is inclusively defined: Crimes Act 1900, s 187. It includes, of course, larceny at common law, which is dealt with in s 117 of the Crimes Act 1900 and which extends beyond larceny to “any indictable offence by this Act made punishable like larceny”. An example of this is contained in s 125 (dealing with larceny by a bailee) and, by operation of s 187, the offence of obtaining property by deception.
“Serious indictable offence” is defined exclusively to mean an indictable offence punishable by imprisonment for life or for a term of five years or more: Crimes Act 1900, s 4. It would, therefore, include most (but not all) of the offences in Pt 4, Div 1 of the Crimes Act 1900.
that the accused received, disposed of, or attempted to dispose of the property;
that at the time the accused received, disposed of, or attempted to dispose of the property, he or she knew or believed it to be stolen: R v Schipanski (1989) 17 NSWLR 618.
The law relating to “recent possession” may be relied upon by the Crown in relation to an offence of receiving, as it does to larceny: see [5-750].
“Receiving” entails possession. The term is defined in s 7 of the Crimes Act 1900 but in most cases it would be insufficient to simply direct the jury in terms of that definition. In the case of actual physical possession, the Crown must prove an intention to exercise custody and control exclusively, except as to others who may be acting in concert with the accused: R v Collins (unrep, NSWCCA, 10/12/92); R v Delon (1992) 29 NSWLR 29.
The guilty knowledge (or belief) must exist at the time of coming into possession of the stolen goods — possession acquired after the goods have been acquired is not sufficient, however it may, depending on the circumstances of the case, justify an inference of knowledge that they were stolen when the accused came into possession of them: R v Wilson (unrep, NSWCCA, 1/10/93).
The Crown must prove that, at the time of receipt of the goods, the accused knew or believed them to have been stolen. It is not required to establish actual knowledge — it being sufficient to establish a subjective belief by the accused that they were stolen. It is the accused’s state of mind which must be emphasised to the jury and not the state of mind of a hypothetical reasonable person, although what a reasonable or ordinary person may have believed in the circumstances is a relevant consideration which may lead to an inference of actual belief in the mind of the accused: R v Schipanski (1989) 17 NSWLR 618; R v McConnell (1993) 69 A Crim R 39 which emphasise that where “wilful blindness” is introduced, the trial judge must clearly explain that it is but an evidentiary step in the process of reasoning towards the state of mind of the accused.
[5-1410] Suggested direction
Because of the wide variety of offences which may fall within the category of “serious indictable offence” within s 188 of the Crimes Act 1900, this direction is limited to property “stolen” in the sense of larceny at common law. Where some other “serious indictable offence” is relied upon by the Crown, the direction will need to be adapted accordingly.
There are three elements of this offence that the Crown must prove beyond reasonable doubt before you would be entitled to convict the accused. I will deal with each of them in turn.
First, the Crown must prove that the property referred to in the indictment had in fact been stolen before the accused received it.
Property is stolen if it is taken from the possession, custody or control of a person who has it in [his/her] possession, custody or control without the consent of that person and with the intention of permanently depriving [him/her] of it. The fact of theft can be proved by inferring it from the circumstances in which the accused came into possession of the property.
It must be taken without a claim of right made in good faith and it must be taken fraudulently, that is to say, it must be taken intentionally, deliberately, dishonestly and without mistake … [see: Larceny [5-750]].]
It is not necessary on a charge of receiving for the Crown to prove who stole the property. Indeed, the identity of the thief may be unknown … [it may be necessary to direct the jury as to a special verdict pursuant to s 121 of the Crimes Act 1900, as to which see [5-790]].
In this case, the Crown has led evidence that the … [specify stolen property] was [owned by/in the possession/in the control of] [the possessor] and that it was taken without [his/her] permission. If you are satisfied beyond reasonable doubt that this in fact occurred, and that whoever took it did so with the intention of permanently depriving [the owner/possessor] of it, then, as a matter of law, the property would have been stolen and you should so find. If you are not so satisfied, then you should acquit the accused … [this assumes no issue of claim of right].
Secondly, the Crown must prove that the accused received the property. This involves proof that [he/she] was in possession of it.
A person has possession of goods if [he/she] has those goods in [his/her] possession, custody or control. The accused must also intend to exercise custody or control over the goods to the exclusion of any other person [who was not acting in concert with the accused in this alleged offence]. Provided the accused has that intention, [he/she] need not have the goods under direct physical custody or control. It is sufficient that the accused has the goods in some place to which [he/she] has [either alone/jointly with some other person acting in concert with [him/her]] access so as to exercise physical custody or control.]
In this case, the evidence relied upon by the Crown is … [specify]. The accused, on the other hand, relies on … [specify]. If you are satisfied beyond reasonable doubt that the accused did have the property in [his/her] custody or control, then it would be open to you to find that [he/she] had received it.
The Crown must also prove beyond reasonable doubt that, at the time the accused so received the … [specify property], [he/she] knew or believed that it was stolen.
It is the accused’s actual state of mind at the time when [he/she] so received the property with which you are concerned, and it is the accused’s knowledge or belief at the time of receipt of the goods which is significant, not [his/her] knowledge or belief at some subsequent time.
Although you may take into consideration subsequently acquired knowledge or belief as a circumstance in arriving at a conclusion as to whether the Crown has proved what the accused’s knowledge or belief was at that time.]
It is not what any other person in the circumstances of the accused might have known or believed, however, knowledge or belief may be inferred or concluded from a consideration of the surrounding circumstances — provided any such inference or conclusion is a rational one (not based on speculation or conjecture) and provided also that it is the only rational inference or conclusion open on the evidence. You may consider, as one of the circumstances to be taken into account, what the accused might have known or believed.]
If you are left of the view that there were grounds for suspicion and the evidence goes no further than that, then that would be insufficient. Mere negligence or carelessness, or even recklessness in not realising that the goods were stolen, is not sufficient. The question is not, “Ought [he/she] to have realised that they were stolen?”, it is, “Did [he/she] know or believe that they were stolen?”.