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7.5.10 - Handling Stolen Goods

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Overview

  1. Handling stolen goods is an offence under Crimes Act 1958 s88.
  2. The offence has the following four elements:
    1. The accused handled goods;
    2. The goods were stolen goods at the time that the accused handled them;
    3. The accused knew or believed at the time that he or she handled the goods that they were stolen goods; and
    4. The accused’s handling of the goods was dishonest (Crimes Act 1958 s88; R v Henderson & Warwick (2009) 22 VR 662; R v Georgiou [2009] VSCA 57).

    Handling of Goods

  3. The first element the prosecution must prove is that the accused "handled goods" (Crimes Act 1958 s88(1)).
  4. "Goods" include:
  5. Section 88(1) of the Crimes Act 1958 states that a person "handles" goods if he or she "receives the goods or brings them into Victoria, or… undertakes or assists in bringing them into Victoria or in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so".
  6. This provision specifies 24 different ways in which a person can "handle" goods:
  7. Not all of these matters have been addressed by the courts. This topic only addresses those areas which have been the subject of judicial guidance.

    Receiving goods

  8. A person "receives" goods by taking them into his or her possession (R v Cottrell [1983] 1 VR 143).
  9. To establish that the accused took goods into his or her possession, the prosecution must prove that he or she:
    1. Had custody of or control over the goods; and
    2. Intended to have custody of or exercise control over the goods (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185).
  10. The fact that a third party has actual possession of the goods does not mean the accused cannot have "received" the goods. For example, if the accused has sufficient control over the third party, such that the goods are available to him or her upon request, he or she will have "received" them (R v Cottrell [1983] 1 VR 143).
  11. A person cannot receive goods from him or herself (R v Seymour [1954] 1 All ER 1006).
  12. For further information concerning possession, see "Common Law Possession" in Possession of a Drug of Dependence.

    Undertaking and assisting

  13. There is a difference between "undertaking" and "assisting":
  14. A person can "assist" in one of the prohibited activities even if that assistance is futile. For example, a person "assists" in the retention of stolen goods by lying to the police about the existence of the goods, even if the police know the person is lying (R v Kanwar [1982] 2 All ER 528).

    By or for the benefit of another person

  15. Where it is alleged that the act of handling involved the retention, removal, disposal or realization of stolen goods, the accused must have either:
  16. Thus, a person who simply retains stolen goods does not "handle" them. He or she must do one of the following:
  17. Similarly, a person who sells stolen goods, and keeps all of the proceeds for him or herself, does not "handle" the goods by disposing of or realising them for the benefit of another. The fact that the purchaser has benefited (in the sense of acquiring the goods) is not sufficient. To have "handled" the goods, the accused must have sold them for the benefit of a person other than the purchaser (R v Bloxham [1983] 1 AC 109). [1]
  18. However, a vendor of stolen goods may have:
  19. There is conflict in the authorities about whether the purchaser of stolen goods "handles" them by undertaking the realisation of goods for the benefit of the vendor (compare R v Bloxham [1981] 1 WLR 859 and R v Deakin [1972] 3 All ER 803). However, this conflict is unlikely to matter in practice, as a purchaser of stolen goods will usually "handle" the goods by receiving them, or by assisting in the vendor’s realisation of the goods. [2]
  20. The "other person" for whose benefit the action must have been committed cannot be a co-accused on the same handling charge (R v Gingell (2000) 1 Cr App R 88).

    Arranging to do a prohibited activity

  21. The closing words of s88(1) – "or if he arranges to do so" – apply to all of the forms of handling specified in the section (see R v Bloxham [1983] 1 AC 109; Property Offences (1986), Law Book Co, 2nd ed, 376).
  22. These words give rise to a substantive, rather than inchoate, offence of arranging to handle. This requires a bilateral agreement that would amount to a conspiracy to handle stolen goods (Property Offences (1986), Law Book Co, 2nd ed, 376).

    The prosecution should specify the form of handling alleged

  23. While it is not mandatory, the prosecution should specify in the indictment the particular forms of handling alleged (R v Nicklin [1977] 2 All ER 444; R v Ikpong [1972] Crim LR 432; Property Offences (1986), Law Book Company, 2nd ed, 376).
  24. While the prosecution may charge the accused with different forms of handling as alternatives, they should generally not use more than two charges to cover the alternatives. One charge will specify handling by receiving, and the other charge will specify any other form of handling that is relevant in the case (e.g., handling by assisting in the disposal of goods for the benefit of another person) (R v Nicklin [1977] 2 All ER 444; R v Ikpong [1972] Crim LR 432; Property Offences (1986), Law Book Company, 2nd ed, 376).
  25. The jury may only convict the accused of a type of handling that is specified in the indictment (R v Nicklin [1971] 1 WLR 403).

    Stolen Goods

  26. The second element the prosecution must prove is that the goods were "stolen goods" at the time that the accused handled them (Crimes Act 1958 s88(1); Mabbott v R [1990] WAR 323; R v Park (1988) 87 Cr App R 164).
  27. "Stolen goods" include:
    1. Goods stolen in Victoria or elsewhere, whether before or after the commencement of the Crimes Act 1958, provided that:
      • The stealing was an offence under the Crimes Act 1958; or
      • The stealing amounted to an offence where and at the time when the goods were stolen (Crimes Act 1958 s90(1));
    2. Goods which represent the stolen goods in the hands of the thief or a handler, those goods being the proceeds of any disposal or realisation of the whole or part of the goods stolen or of goods which represent them (Crimes Act 1958 s90(2)); and
    3. Goods obtained in Victoria or elsewhere either by blackmail or by deception in the circumstances described in Crimes Act 1958 s81(1) (Crimes Act 1958 s90(4)).
  28. Goods which were originally taken by a legally innocent person (such as a child under the age of criminal responsibility, or a person protected by the defence of mental impairment) are not "stolen goods". Consequently, a person who subsequently handles those goods will not be guilty of this offence (Walters v Lunt [1951] 2 All ER 645; Property Offences (1986), Law Book Co, 2nd ed, 354).
  29. This element will not be met where there is an arrangement to handle goods that will be stolen. The goods must have been stolen at the time of the handling (R v Park (1988) 87 Cr App R 164). [3]

    Goods may cease to be "stolen goods"

  30. This element will not be met if the goods have ceased to be stolen goods at the time of the handling (see, e.g., R v Dolan (1855) 6 Cox CC 449; R v Villensky [1892] 2 QB 597).
  31. Goods cease to be stolen goods when:
    1. They are restored to the person from whom they were stolen;
    2. They are restored to other lawful possession or custody; or
    3. The person from whom they were stolen and any other person claiming through him or her have otherwise ceased to have any right to restitution of those goods in respect of the theft (Crimes Act 1958 s90(3)).
  32. Goods will have been restored "to the person from whom they were stolen" if that person found them and resumed possession. This element will therefore not be met if the owner subsequently bails the goods to the thief in order to identify who the ultimate receiver was to be (R v Dolan (1855) 6 Cox CC 449; R v Villensky [1892] 2 QB 597).
  33. Goods will have been restored to "other lawful possession or custody" when a police officer, in the course of his or her duty, takes possession or custody of them (R v Alexander and Keeley [1981] VR 277; Attorney-General’s Reference (No 1 of 1974) [1974] QB 744). See "Receiving goods" above for the meaning of "possession".
  34. Whether goods have been taken into the lawful possession or custody of a police officer is a question of fact that partly depends on the intention of the officer. It is for the jury to determine whether the officer took custody of the goods (Attorney-General’s Reference (No 1 of 1974) [1974] QB 744).
  35. A person does not take lawful possession of goods merely by:
    1. Examining goods to discover whether or not they are stolen (R v Alexander and Keeley [1981] VR 277);
    2. Forming an intention to take exclusive control of the goods upon the happening of certain future events (R v Alexander and Keeley [1981] VR 277); or
    3. Watching goods with a view to catching the receiver (Attorney-General’s Reference (No 1 of 1974) [1974] QB 744).

    Proving that the goods were stolen

  36. The circumstances in which goods were handled may provide sufficient proof that they were stolen (R v Sbarra (1919) 13 Cr App R 118; Mabbott v R [1990] WAR 323).
  37. An accused may also admit that the goods were stolen (Mabbott v R [1990] WAR 323; Ollerton v R (1989) 40 A Crim R 133).
  38. Where the accused admits that goods were stolen, the weight the jury should give to that admission will depend on the reliability of the basis of the accused’s knowledge:

    Knowledge or Belief that the Goods were Stolen

  39. The third element requires the prosecution to prove that at the time the accused handled the goods, he or she knew or believed that the goods were stolen goods (Crimes Act 1958 s88(1); R v Grainge [1974] 1 WLR 619; De Bono v Nielsen (1996) 88 A Crim R 46; R v Henderson & Warwick (2009) 22 VR 662).
  40. This element requires actual knowledge or belief. A suspicion that the goods were stolen is not sufficient (R v Grainge [1974] 1 WLR 619; R v Raad [1983] 3 NSWLR 344; R v Henderson & Warwick (2009) 22 VR 662).
  41. "Belief" is an ordinary English word and a judge generally does not need to define it for the jury. If the jury asks what belief means, the judge may explain that it is a state of mind in which the accused accepts the truth of the belief, and that the state of mind characterised by mere suspicion is not sufficient (R v Smith (1976) 64 Cr App R 217; R v Raad [1983] 3 NSWLR 344).
  42. As there is a difference between "belief" and "realisation of a high likelihood or a real chance", a judge must be careful to properly instruct the jury on the meaning of "belief" in any case where that is a real issue (R v Henderson & Warwick (2009) 22 VR 662).
  43. In determining what the accused knew or believed, the jury may examine the circumstances in which the accused handled the goods. Those circumstances may provide sufficient proof that the accused knew that the goods were stolen (R v Sbarra (1919) 13 Cr App R 118; R v Fuschillo [1940] 2 All ER 489; R v Young [1953] 1 All ER 21; Mabbott v R [1990] WAR 323; see also Bird v Adams [1972] Crim LR 174; R v Chatwood [1980] 1 WLR 874; R v Pfitzner (1976) 15 SASR 171).
  44. Evidence that the accused knew facts which should have put him or her on notice as to whether the goods were stolen does not necessarily prove that the accused knew or believed that the goods had been stolen. If the jury is satisfied that the accused ignored suspicious circumstances, they must determine whether this was because the accused knew or believed the goods were stolen. They must reject the possibility that the accused was simply gullible, naive or absent-minded (Atwal v Massey (1971) 56 Cr App R 6; R v Grainge [1974] 1 WLR 619; R v Bellenie [1980] Crim LR 437; R v Park (1988) 87 Cr App R 164).
  45. The judge should clearly explain that the test is subjective, rather than objective. The jury may use the accused’s failure to enquire as a basis for inferring the accused’s subjective knowledge or belief. The judge should also explain that mere suspicion that the goods are stolen is not sufficient (R v Dykyj (1993) 29 NSWLR 672; R v Schipanski (1989) 17 NSWLR 618; R v Pethick [1980] Crim LR 242; R v Griffiths (1974) 60 Cr App R 14).
  46. Negligence or gross negligence in handling goods is insufficient to prove knowledge or a belief that the goods were stolen (R v Dykyj (1993) 29 NSWLR 672; R v Havard (1916) 11 Cr App R 2; Atwal v Massey (1971) 56 Cr App R 6; R v Grainge [1974] 1 WLR 619).

    Dishonesty

  47. The fourth element the prosecution must prove is that the accused handled the stolen goods dishonestly (Crimes Act 1958 s88(1)).
  48. Dishonesty has a special meaning in Division 2 of the Crimes Act 1958. It means that the accused acted without any claim of legal right (R v Salvo [1980] VR 401; R v Bonollo [1981] VR 633; R v Brow [1981] VR 783). See Theft for further information concerning the meaning of dishonesty.
  49. In some cases, a finding that the accused acted dishonestly will be inevitable once the jury is satisfied of all other elements of the offence (R v Henderson & Warwick (2009) 22 VR 662).

    Doctrine of Recent Possession

  50. In some circumstances, a jury may be able to infer from the fact that the accused was found in possession of recently stolen property that he or she is guilty of this offence. See Recent Possession for further information.

    Theft and Handling

    Insertion of s88A

  51. Prior to 13 October 2004, the prosecution was also required to prove that the handling took place "otherwise than in the course of the stealing".
  52. While this requirement prevented people from being convicted of both theft and handling for the same act, it created a difficulty in cases where the jury was satisfied beyond reasonable doubt that the accused was guilty of either theft or handling, but were unsure whether or not he or she was the person who stole the goods. In such circumstances the jury was required to acquit the accused of both offences (R v Bruce [1988] VR 579; De Bono v Nielson (1996) 88 A Crim R 46; R v Marijancevic (2001) 2 VR 611).
  53. In order to overcome this difficulty, s88A was inserted into the Crimes Act 1958. This section applies to cases in which charges for theft and handling stolen goods are joined in an indictment as alternative charges and tried together. It provides that, in such cases, if the jury is satisfied beyond reasonable doubt that the accused is guilty of either theft or handling but cannot agree which, they must acquit the accused of handling stolen goods and find him or her guilty of theft (Crimes Act 1958 s88A).
  54. Section 88A applies to any trial that commenced on or after 13 October 2004, regardless of when the offence was alleged to have been committed (Crimes Act 1958 s600(2)).
  55. Section 88A only applies when charges of theft and handling are joined in one indictment as alternative charges. It is likely that the section does not apply in summary proceedings or where the accused is charged with a more serious offence (e.g. armed robbery or burglary) and theft is left to the jury as a common law alternative (see Crimes Act 1958 s88A and Criminal Procedure Act 2009 ss239, 240).

    Removal of "otherwise than in the course of stealing"

  56. At the same time as s88A was inserted into the Crimes Act 1958, the phrase "otherwise than in the course of the stealing" was removed from s88.
  57. Unlike s88A (which applies to all trials commenced on or after 13 October 2004), this amendment only applies to offences alleged to have been committed on or after 13 October 2004 (Crimes Act 1958 s600(1)).
  58. This means that, for offences committed on or after 13 October 2004, the jury do not need to be satisfied that the handling took place otherwise than in the course of the stealing.

 

Notes

[1] R v Bloxham [1983] 1 AC 109 did not consider the separate question of whether the act of selling stolen goods involves receiving goods that represent the stolen goods under the tracing rules in Crimes Act 1958 s90(2), or assisting the purchaser in the disposal of goods that represent the stolen goods. The implications of s90(2) have not yet been fully explored. See also Farrugia v R [2011] VSCA 201 at footnote 3.

[2] The issue of whether a purchaser undertakes the realisation of goods is only likely to arise if the prosecution particularises an inappropriate form of handling in the indictment.

[3] The appropriate charge where there is an agreement to handle goods that will be stolen is conspiracy to handle stolen goods (R v Park (1988) 87 Cr App R 164).

 

Last updated: 1 July 2011

In This Section

7.5.10.1 - Charge: Handling by Receiving

7.5.10.2 - Charge: Handling for the Benefit of Another

7.5.10.3 - Checklist: Handling Stolen Goods

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.4 - Burglary

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.14 - Making or Using a False Document

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire