Queensland’s criminal legislation attempts to address offences against other people’s property by not only making stealing, fraud, burglary, etc illegal but also outlawing the act of receiving anything obtained by these illegal means. In other words, the criminal law chases illegally obtained property all through the hands of anyone handling it until it is retrieved (when that is possible).
The wording of the offence in the legislation is very simple:
A person who received tainted property, and has reason to believe it is tainted property, commits a crime.
However, this simple sentence contains at least 4 aspects (or “elements”) to it that the prosecution must prove in order to secure a conviction for this offence. These 4 aspects may be summarised thus:
- A person;
- Receives;
- Tainted property;
- Has reason to believe.
If one of these 4 elements are missing from the circumstances of any given case, that person must be found not guilty of this crime. Conversely, the presence of all 4 elements will be enough to secure a conviction. Only the most important of these elements are discussed here.
What is “Tainted Property”?
The term “tainted property” has a technical meaning provided by the Criminal Code 1899 (Qld), s 432. That term covers 3 circumstances in which property becomes “tainted”:
(a) when it has been obtained by committing an offence (ie, by the person who originally obtained it illegally);
(b) if the property has been “converted” into other property, then the “other property” is likewise tainted; or
(c) if it is mortgaged, pledged (eg, pawned), or exchanged (eg, sold for cash), then the proceeds (ie, the money obtained from doing these things) is also tainted. In simple terms, the original property obtained illegally and anything else you generate from that property is defined as “tainted”.
There are several important implications to this definition. Principally, it means that criminal responsibility cannot be avoided by merely selling, swapping, or pawning the property. The money from selling or pawning is also tainted and / or anything received in exchange is also tainted.
Secondly, it means that all the property mentioned above can be subject to confiscation by the State either on conviction or by an application to the court under the Criminal Proceeds Confiscation Act 2002 (Qld).
Lastly, it is important to note that the legislation used the term “tainted”. As seen by the discussion above, it is a broader scope than a term such as “stolen” property. This is because property that has been obtained by other offences, such as fraud, burglary, robbery, etc are not, strictly speaking, “stolen”, as stealing is, itself, a legally-defined term.
Furthermore, although, in most cases, it is likely that the property was obtained by committing a stealing or similar offence, it strictly necessary. The property only needs to be obtained by committing any “indictable offence”.
What is it to “Receive” Tainted Property
There are 2 circumstances that need to be true for the tainted property to have been “received”. Firstly, the person receiving the tainted property must be in possession of the person. This possession may be actual or “constructive”. The latter term describes situations where the accused person has “control” of the property even if they have given it to someone else. Also, it is possible to be in possession of property jointly with someone else or multiple other people.
Secondly, the person must be aware that they are in possession of the property. As previously stated by the courts, “It is not sufficient that the goods [ie, the tainted property] were found on the accused’s premises. The accused must be have been aware that they were there, and must have exercised some control over them.” (in R v Cavendish [1961] 2 All ER 856). Again, the gist of “receiving” is having effective control over the property. No one can have control over goods that they do not know exist.
What is it to Have a “Reason to Believe”?
The prosecution must prove that the person who received the tainted property “had a reason to believe” that the property is tainted. This is an objective test; ie, it does not matter what the person receiving the tainted property actually believed at the time they received it. Instead, it matters what a “reasonable person” standing in the place of the accused person would have thought had they been the one to receive the tainted property. This objective standard of belief excludes any defences by the accused on the basis of “wilful blindness”; ie, that the accused deliberately made themselves ignorant of where the tainted property might have come from.
Ascertaining whether the accused person had a reason to believe the property was tainted depends on all the circumstances in which they received the property. For example, if the accused purchased the property from a stranger and the asking price was “too good to be true”, then it is likely that a jury at trial might find that the accused had a reason to believe that they were getting property from a less-than-legitimate source.
Aggravating Circumstances
The legislation set out 3 circumstances that double the maximum penalty for this offence:
(a) if the property was obtained by way of an act constituting a crime; or
(b) if the property is a firearm or ammunition; or
(c) if the offender received the tainted property while acting as a pawnbroker or dealer in second hand goods, under a licence or otherwise.
If any of these characteristics are present in any given offence, the maximum penalty increases from 7 years’ imprisonment to 14 years’ imprisonment.
Possible Defences
The most obvious defences to this offence is the demonstrate that any one of the 4 aspects or elements of the offence is not present; eg, that the accused person did not “receive” the property, that the property is not “tainted”, or that the accused person did not have a “reason to believe” the property was tainted (eg, because they honestly and reasonably believed that the legal owner was providing them with the property).
In addition, a possible defence might be established if the accused person can prove that they honestly and reasonably believed that the tainted property was their legitimate property.
Conclusion
Although the offence of receiving tainted property is a relatively straightforward offence, in terms of what the prosecution must prove to secure a conviction, the consequences of such a conviction to the accused person are significant and may result in imprisonment for up to 14 years.
