Concept of possession — receiving stolen property — Cullen v R [2012] NZCA 413 — R v Cox [1990] 2 NZLR 275 — R v Kennedy [2001] 1 NZLR 314 — Crimes Act 1961, s 246. The defendant was on trial for possession of drugs and receiving stolen property. During the trial the jury had asked a question relating to the required mental elements relating to possession of stolen property. The jury had received guidance that to have possession of stolen property a person must be aware that the item is where it is; be aware that the item has been stolen; be in actual or potential control of the item; and have an intention to exercise control over the item. This guidance had come from the Court of Appeal decision in Cullen v R. The current s 246(1) of the Crimes Act includes recklessness as to whether or not the property is stolen as an express mental element of receiving. The court referred to authorities that provided conflicting guidance on the extent of the mental element required for the crime of possession. However in one of the judgments the relevant passage was a mere observation, and in the other it was the ruling of the judgment. Therefore it was this second judgment, which had held that a mental element of knowledge and recklessness is not required for charges of possession, that was binding on the court in this case. Rather, knowledge and recklessness is required for the charge of receiving. This distinction had confused the jury. The court ordered that references to awareness that the item was stolen be removed from the directions to the jury. Judgment Date: 23 February 2018.