What does it mean to commit the criminal offence of ‘receiving tainted property’?
Tainted may be a slightly antiquated, unfashionable word but in Queensland, in relation to property, it is defined in section 432 of the Criminal Code 1899. There, tainted property is described as ‘a thing that has been obtained by way of an act constituting an indictable offence’ – an indictable offence being a more serious criminal act such as stealing, murder, manslaughter, rape and robbery.
Additionally, if such property is converted into other property, such as money, or is ‘mortgaged, pledged or exchanged for other property’, that subsequent property also becomes tainted. The law then makes clear that a thing ceases being tainted property once a person acquires a lawful title to it.
To receive tainted property is a criminal offence that attracts lengthy prison terms as set out in section 433 of the Code – a maximum of 14 years if the property was obtained through a criminal act, involves a firearm or ammunition, or was received by a person acting as a pawnbroker, dealer in second-hand goods, under licence or otherwise.
A person who commits this offence may also be subject to another law – the Criminal Proceeds Confiscation Act 2002, a law directed at curbing offenders from enjoying the proceeds of crime. This Act is designed to allow a court to make orders to restrain offenders from disposing of property obtained by crime, to forfeit such property, to pay back proceeds of crime and be penalised for receiving proceeds of crime.
In the rest of this post, we’ll look at the crime of receiving tainted property in more detail, including what police must do to prove the offence and how a person charged with this crime should respond.
What must be established to prove this offence?
A person who receives tainted property does not need to have been the person who stole the items but it remains a criminal offence to accept, take or receive such property if, when they receive the items, the person has reason to believe them to be stolen.
Because this is a criminal offence, the prosecution must prove all elements beyond a reasonable doubt.
Specifically, police must prove that:
- The accused received the property, meaning having it in their possession. A person has something in his possession, either alone or jointly with some other person, if:
- they have it in their physical custody; or
- they knowingly have it in a house, flat, building or other place under their control; or
- they have assisted in concealing it or disposing of it.
The prosecution must also prove the property was obtained by means of any act constituting an indictable offence. Property is stolen if it is taken from the owner without the owner’s consent and with an intent to permanently deprive the owner of it.
Furthermore, it must be demonstrated that at the time the accused received the property they had reason to believe the property was stolen. This can be a problematic element ensnaring people who buy goods at a discount from friends, for example. In this situation, the prosecution may be able to show the buyer should have known the item was stolen. The condition of the item, whether a receipt was issued for the item, and from who and from where it was purchased are all important factors in proving the offence.
Defences: With the guidance of experienced criminal lawyers Brisbane, a person charged with receiving tainted property can raise certain defences including:
- that they did not receive the property under the legal definition of tainted property given above;
- that they did not know the property involved was stolen;
- that they possessed an honest and mistaken belief that the owner of the property had consented to their possession of the property;
- that the property is the subject of a civil or contractual dispute.
There may also be other applicable defences.
Dealing with the proceeds of crime
There is another piece of legislation in Queensland relevant to this offence: the Criminal Proceeds Confiscation Act 2002. Section 252 of this Act states that:
‘A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property.’
This Act provides for civil proceedings to deprive people of financial gain from receiving tainted property and to help law enforcement agencies track such property, among a variety of other aims.
Orders under this law cans have serious consequences – freezing bank accounts and seizing homes, cars and other assets in order to prevent the tainted property being used as a benefit to the person who received it.
It should also be noted that receiving tainted money – such as the financial proceeds of crime from another person – can be prosecuted under both Queensland and Commonwealth laws addressing money laundering, with penalties of up to 20 years for the state offence and 25 for the Commonwealth offence.
Discuss your case with expert criminal lawyers
At Hannay Lawyers we have many years of experience advocating for those charged with a criminal offence, including receiving tainted property. If you require more information on any of the issues raised in this article, including possible defences to a charge of receiving tainted property, speak with one of our Brisbane criminal lawyers today for an appraisal of your case.