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Chapter 23: Receiving

 Table Of Contents 

[23.0] Introduction 

This chapter will examine specifically the offence of 'Receiving', as provided for by section 313(1) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

In that regard reference should be made to the Larceny Act 1916 (UK), see Toritelia v R [1987] SILR 4. 

In R v Matthews (1949) 34 CrAppR 55 [[1950] 1 AllER 137] Lord Goddard CJ, delivering the judgment of the Court, stated at page 58. 

'If at the time when the property is received the receipt is innocent, the fact that the receiver changes his mind and later misappropriates the property does not turn the receipt into a felony, and that has been the law of this country for very many years. If a person, having received property innocently, then changes his mind and misappropriates it it has been more than once attempted to be said, that that would be larceny.' 

[23.1] Offence

 Section 313(1) of the Penal Code (Ch. 26) states: 

'Any person who receives any property knowing the same to have been stolen or obtained in any way whatsoever under circumstances which amount to felony or misdemeanour, is guilty of an offence of the like degree (whether felony or misdemeanour) and shall be liable – 

(a)                in the case of felony, to imprisonment for fourteen years; and 

(b)               in the case of misdemeanour, to imprisonment for seven years.' 

'Every person may be proceeded against on information and convicted, whether the principal offender has or has not been previously convicted, or is or is not amenable to justice', see section 313(3) of that Code. 

See: R v Smith (1962) 46 CrAppR 277. 

[23.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did receive property to wit [specify the property] knowing the said property to have been [stolen or obtained] in a way and under circumstances which amounted to a [felony or misdemeanour] to wit [specify the (felony or misdemeanour)].' 

See: R v Quinter (1934) 25 CrAppR 32.

[23.3] Elements 

A. Defendant 

B.  Place 

C. Date 

D. Receive 

E. Property 

F. Knowing The Said Property To Have Been 

[1] Stolen; Or 

[2] Obtained In A Way And Under Circumstances Which Amounted To A 

[i] Felony; Or 

[ii] Misdemeanour

[23.4] Receive 

The term 'Receive' is not defined in the Penal Code (Ch. 26) or the Interpretation and General Provisions Act (Ch. 85). 

In R v Seiga (1960) 44 CrAppR 26 Ashworth J, delivering the judgment of the Court, stated at page 30: 

'In paragraph 2092 of the 34th edition of Archbold, it is stated: "Even if there is proof of a criminal intent to receive and a knowledge that the goods are stolen, if the exclusive possession still remains in the thief, a conviction for receiving cannot be sustained." Various authorities are cited in support of this statement, including WILEY (1850) 2 Den 37 and BERGER (1915) 11 CrAppR 72. In the latter case, at p.74, the Lord Chief Justice quoted with approval a passage from the judgment of Patterson J in WILEY's case in the following terms: "I do not think it necessary that in order to constitute a man a receiver it is necessary that he should touch the goods, or that under certain circumstances a party having a joint possession with the receivers may not be convicted as a receiver; but, I think, to make a person liable as a receiver the goods must be under his control." That states the law accurately […].' (emphasis added) 

In Hobson v Impett (1957) 41 CrAppR 138 Lord Goddard CJ, with whom Hilbery & Donovan JJ concurred, stated at page 141: 

'It is not the law that, if a man knows goods are stolen and puts his hands on them, that in itself makes him guilty of receiving, because it does not follow that he is taking them into his control. The control may still be in the thief or the man whom he is assisting, and the alleged receiver may be only picking the goods up without taking them into his possession, the goods all the time remaining in the possession of the person whom he is helping. […] It cannot be the law that merely because a man picks up goods which he knows are stolen he is receiving the goods.' 

In R v Cavendish (1961) 45 CrAppR 374 [[1961] 2 AllER 856; [1961] 1 WLR 1083] Lord Parker CJ, delivering the judgment of the Court, held at page 378: 

'A man cannot be convicted of receiving goods of which delivery has been taken by his servant unless there is evidence that he, the employer, had given the servant authority or instructions to take the goods.' 

'It is not necessary in cases of receiving that a jury should be directed that they must be satisfied that the prisoner received the property from somebody else,' see R v Seymour (1954) 38 CrAppR 68 [[1954] 1 AllER 1006; [1954] 1 WLR 678] at page 70. (emphasis added)

[23.5] Property 

The term 'Property' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any description of real and personal property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.' 

See: D'Andrea v Woods (1953) 37 CrAppR 182. 

Section 120 of the Criminal Procedure Code (Ch. 7) states (in part): 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

[…] 

(c)(i) the description of property in a charge or information shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property; 

[Therefore, provided the property in question has been described with as much detail as possible, it is not necessary to state the name of the owner of the property or its value, unless such details are required to prove a specific offence.] 

[…] 

(iv) coin and bank notes may be described as money; and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank or currency note (although the particular species of coin of which such amount was composed or the particular nature of the bank or currency note, shall not be provided); and in cases of stealing, embezzling and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although such coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person and such part shall have been returned accordingly;' (emphasis added) [words in brackets added]

[23.6] Proof Of Knowledge 

Section 313(1) of the Penal Code (Ch. 26) states: 

'Any person who receives any property knowing the same to have been stolen or obtained in any way whatsoever under circumstances which amount to felony or misdemeanour […].' (emphasis added) 

The onus is never on the defendant to prove that he/she did not have the requisite knowledge, see R v Hepworth; R v Fearnley [1955] 2 AllER 918; [1955] 2 QB 600; (1955) 39 CrAppR 152; (1955) 3 WLR 331; R v Grinberg (1917) 12 CrAppR 259; R v Badash (1917) 13 CrAppR 17; R v Bacon (1917) 13 CrAppR 36; R v Bryant (1917) 13 CrAppR 49; R v Sanders (1919) 14 CrAppR 11 & R v Sharma; R v Abramovitch [1914 –15] AllER Rep 204; (1916) 11 CrAppR 45. 

In R v Garth (1949) 33 CrAppR 100 [[1949] 1 AllER 773] Lord Goddard CJ, delivering the judgment of the Court, stated at page 101: 

'I have more than once endeavoured to say what ABRAMOVITCH's CASE [(1914) 11 CrAppR 45)] lays down and it is this: Possession of property recently stolen, where no explanation is given, is evidence which can go to the jury that the prisoner received the property knowing it to have been stolen. It must be borne in mind that the onus is always on the prosecution; but if the prisoner gives an explanation which raises a doubt in the minds of the jury on the question whether or not he knew that the property was stolen, then the ordinary rule applies and the case has not been proved to the satisfaction of the jury, and therefore the prisoner is entitled to be acquitted. It is not a question whether the prisoner gives an account which may possible be true, because as I have said, any account may be true. A much more accurate direction to the jury is: "If the prisoner's account raises a doubt in your minds, then you ought not to say that the case has been proved to your satisfaction."' (emphasis added) 

In Director of Public Prosecutions v Nieser (1958) 43 CrAppR 35 Diplock J, delivering the judgment of the Court, stated at pages 42 – 44: 

'The subsection thus creates two classes of offence, one a felony and the other a misdemeanour, according to the circumstances in which the property received was stolen or obtained. It treats property as falling into two classes: (1) property which has been stolen or obtained in any way whatsoever under circumstances which amount to a felony; and (2) property which has been stolen or obtained in any way whatsoever under circumstances amounting to misdemeanour, and it requires as an ingredient of the offence knowledge by the receiver of at least the category into which the property he has received falls. 

Does it require more specific knowledge by the receiver than this of the nature of the offence committed by the person by whom the property was stolen or obtained? Neither the structure of the subsection itself nor its antecedent legal history compels us to such a conclusion. […] 

[…] 

[It is not] necessary for the prosecution to adduce evidence to show that the defendant knew the precise nature of the felony or misdemeanour by which the property was in fact obtained.' (emphasis added) [words in brackets added] 

In R v Sbarra (1918) 13 CrAppR 118 Darling J, delivering the judgment of the Court, held at page 120: 

'The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and further may prove that he knew it at the time when he received them. It is not a rule of law that there must be other evidence of the theft.' 

Section 317 of the Penal Code (Ch. 26) states: 

'Whenever any person is being proceeded against for receiving any property knowing it to have been stolen, or for having in his possession stolen property, for the purpose of proving guilty knowledge there may be given in evidence at any stage of the proceedings – 

(a)                the fact that other property stolen within the period of twelve months preceding the date of the offence charged was found or had been in his possession; and 

(b)               the fact that within the five years preceding the date of the offence charged he was convicted of any offence involving fraud or dishonesty. This last – mentioned fact may not be proved unless – 

(i) seven days notice in writing has been given to the offender that proof of such previous conviction is intended to be given; and 

(ii) evidence has been given that the property in respect of which the offender is being tried was found or had been in his possession.' (emphasis added) 

The Court has the discretion and overriding duty in every case to secure a fair trial, and if in any particular case the Court comes to the conclusion that even though certain evidence is strictly admissible, referring to the evidence of previous convictions which are sought to be admitted under section 317 of the Penal Code (Ch. 26), if its prejudicial effect once admitted outweighs its probative value it may exclude such evidence, see R v Herron [1967] 1 QB 107; [1966] 3 WLR 374; [1966] 2 AllER 26; (1966) 50 CrAppR 132. 

See also: R v Aves [1950] 2 AllER 330; (1950) 34 CrAppR 159 at page 160; R v Smith & Currier (1918) 13 CrAppR 151; R v Fuschillo [1940] 2 AllER 487; (1940) 27 CrAppR 193 & R v McGuire (1930) 22 CrAppR 31.

[23.7] Doctrine Of Recent Possession 

The 'Doctrine Of Recent Possession' may be applied in appropriate cases, see David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977; Davis CJ; at page 3). 

The prosecution is required to advise the Court whenever it is relying on charges in the alternative, see 'Practice Note' issued by Davis CJ in David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977). 

In R v Langmead (1864) Le & Ca 427; 169 ER 1459 Blackburn J stated at pages 441 and 1464 respectively: 

'I do not agree … that recent possession is not as vehement evidence of receiving as of stealing. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances.' 

Pollock CB stated at pages 439 – 440 and 1464 respectively: 

'If, as I have said, there is no other evidence, the jury will probably consider with the reason that the prisoner stole the property; but, if there is other evidence which is consistent either with is having stolen the property, or with his having received it from someone else, it will be for the jury to say which appears to them to be the more probable solution.' 

In R v Brain otherwise Jackson (1918) 13 CrAppR 197 Avory J, delivering the judgment of the Court, stated at pages 198 – 199: 

'It is quite true that if a man is found in possession of recently stolen property it may give rise to a presumption either that he is the person who actually stole it or that he received it knowing it to have been stolen. What is "recent" stealing depends on the character of the goods. Some naturally change hands quicker than others. But after the presumption has been raised it is still the duty of the judge to tell the jury that it is only a presumption which calls for some explanation by the prisoner. If he gives no explanation or one which the jury does not believe, the jury may presume he is the person who stole the property or received it knowing it to have been stolen.' (emphasis added) 

In Trainer v R (1906) 4 CLR 126 Griffith CJ explained the 'Doctrine Of Recent Possession' at page 132: 

'It is a well known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen according to the circumstances of the case. 

Prima facie the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it.' (emphasis added) 

See also: Attorney – General of Hong Kong v Yip Kai – Foon [1988] 1 AllER 153; [1988] 2 WLR 326; (1988) 86 CrAppR 368 & R v Marcus (1923) 17 CrAppR 191. 

In R v Bailey (1917) 13 CrAppR 27 Avory J, delivering the judgment of the Court, stated at page 30: 

'It is true that in some cases where the housebreaking takes place one day and the property stolen is found in the possession of the prisoner on the following day, it is open to the jury to infer that he broke into the premises; but not where he is not found in possession until three or four months later, it may, however, be evidence that he was guilty of receiving the goods knowing them to have been stolen.' 

The law related to the 'Doctrine of Recent Possession' is also examined commencing on pages 477 and 514. 

[23.8] Co - Defendants 

Section 176 of the Criminal Procedure Code (Ch. 7) states: 

'When any two or more persons are charged with jointly receiving any property knowing the same to have been stolen, and it is proved that one or more of such persons separately received any part of such property, such of the persons may be convicted as are proved to have received any part of such property.' 

[23.9] Evidence Of Accomplices 

A Court should warn itself on the danger of convicting a 'receiver' on the evidence of the 'thief', unless such evidence is corroborated in some material particular implicating the 'receiver', see R v Reynolds (1927) 20 CrAppR 125 at page 126. 

The law relating to the evidence of 'Accomplices Generally' is examined commencing on page 298. 

[23.10] Jurisdiction 

The jurisdiction of the court in respect of the offence of 'Receiving' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of the offence of 'Receiving' is examined commencing on page 918. 

In respect of stolen property a Court should direct that the property be restored to the person from whom it was taken, see section 104(3) of the Criminal Procedure Code (Ch. 7).

[23.11] Related Offences 

The following are related offences as provided for in the Penal Code (Ch. 26): 

[i] 'Receiving Things Sent Or Intended To Be Sent By Post', section 313(2); 

[ii] 'Receiving Goods Stolen Outside Solomon Islands', section 314; and 

[iii] 'Tracing Possession & Unlawful Possession', section 315.