11. Kidnapping/Abduction Flashcards
Define “unlawfully”.
Without lawful justification or excuse.
Define “taking away” in regards to abduction/kidnapping
Cite relevant case law.
A situation where the victim is removed from one place to another.
R v Wellard - kidnapping is the deprivation of liberty and taking away from where the victim wants to be.
R v Crossan - taking away and detaining are separate and distinct offences.
Define “person”.
Gender neutral term, proved by judicial notice or circumstantial evidence.
Define “consent”.
Cite relevant case law.
Consent is a person’s conscious and voluntary agreement to something desired/proposed by another.
R v Cox - consent is full, voluntary, free and informed. Freely and voluntarily given bu someone capable of forming rational judgement.
Define “fraud”
Deceive the victim into agreeing to a proposition by misrepresenting the facts of their intention.
Define “duress”
Demands based on fear of the consequences if they refuse.
Define “intent”.
Cite the relevant source.
Intent to commit an act and intent to get a specific result (aim, object, purpose- Simester and Brookbanks)
Define “sexual connection”
The introduction into the genitalia or anus of one person, by the body part of another, or by an object held/manipulated by another.
Excludes legitimate medical purposes.
Define “ransom”
A sum of money demanded or paid for the release of a person being held captive.
Define the element “intent to hold for service”
Intent to keep the victim as a servant or slave.
Define “confined”
Restricting a person’s movements to within a geographical area.
Also can include curtailing their activity through control/influence.
Define “imprisoned”
To confine them as if in a prison.
Define the element “sent away from NZ”.
Victim leaves NZ on their own, perhaps due to duress.
Define the element “taken from NZ”.
Is in the company/custody of a person accompanying them out of NZ
Define “Young Person” for the purposes of s210 of the Crimes Act 1961.
Under 16 years of age.
s210 Relates to abduction of a young person under 16.
Define “possession”.
Cite relevant case law.
R v Cox.
Possession is comprised of two elements - physical (custody/control) and mental (intent/knowledge)
Define “entice”
Tempt, persuade, or attract by arousing hope or desire.
Define the element “receives a young person”
Knowing that a young person has been unlawfully taken, receiving them into their possession.
Define “knowing”.
Cite the relevant source.
Correctly believing.
Simester and Brookbanks
What does s208 of the Crimes Act 1961 relate to?
What are the elements of this offence?
What is the maximum penalty?
Abduction.
- Unlawfully
- Takes away OR detains
- A person
- Without their consent OR with consent obtained by fraud or duress
- with intent to,
a) Go through a form of marriage OR civil union, OR
b) have sexual connection with the person, OR
c) cause the person to go through a form of marriage OR civil union OR to have sexual connection, with some other person.
14 years imprisonment
What does s209 of the Crimes Act 1961 relate to?
What are the elements of this offence?
What is the maximum penalty?
Kidnapping.
- Unlawfully
- Takes away OR detains
- A person
- Without their consent OR with consent obtained by fraud or duress
- with intent to,
a) hold him or her for ransom OR to service, OR
b) cause him or her to be confined OR imprisoned, OR
c) cause him OR her to be sent OR taken out of New Zealand.
14 years imprisonment
What is an important note to make regarding “take away/detains” when it comes to abduction/kidnapping?
Cite relevant case law.
Taking away and detaining are two distinctly separate acts.
Where evidence of both exists, two separate charges should be laid.
R v Crossan - taking away and detaining are separate and distinct offences.
Regarding abduction/kidnapping, does the intent need to be contemporaneous with the taking/detaining act?
Cite relevant case law.
No - offenders intent need not be specific to when the victim is detained. It may be formed later in the offending.
R v Waaka - helped a friend carry a comatose woman to a nearby wall, placed her down and then decided to rape her.
What does s210(1) of the Crimes Act 1961 relate to?
What are the elements of this offence?
What is the maximum penalty?
Abduction of a young person under 16.
- With intent to deprive a parent OR guardian OR other person having the lawful care or charge of a young person
- of the possession of the young person
- Unlawfully takes away OR entices away OR detains
- The young person.
7 years imprisonment.
What does s210(2) of the Crimes Act 1961 relate to?
What are the elements of this offence?
What is the maximum penalty?
Recieves a young person under 16.
- Receives
- A young person
- Knowing that he or she has been unlawfully, taken away OR enticed away OR detained
- With intent to deprive a parent OR guardian OR other person having the lawful crew or charge of him or her, of the possession of him or her.
7 years imprisonment.
What is the defence to s210 of the Crimes Act 1961?
Regarding Abduction of a Young Person Under 16
Statutory defence of good faith (s210A CA61)
A person who claims in good faith a right to the possession of the young person under 16 years of age can not be convicted.
What circumstances do not count as a defence under s210 of the Crimes Act 1961? (3)
1) s209A CA61 - person under 16 can not consent to being taken away/detained.
2) s210(3)(a) CA61 - it is immaterial whether the young person consents, or is taken/goes/recieved at their own suggestion.
3) s210(3)(b) CA61 - it is immaterial whether the offender believes the young person to be of/over 16 years of age.
Explain the “non-presumption of age” concept regarding abduction/kidnapping.
There is no presumption of law that a person is incapable of sexual connection because of their age.
s127 Crimes Act 1961.
Case law:
R v Wellard
Kidnapping is the deprivation of liberty and taking away from where the victim wants to be.
Case law:
R v Crossan
“Taking away” and “detaining” are separate and distinct offences.
Case law:
R v Pryce
“Detaining” is an active concept meaning to keep in confinement or custody.
Contrasts with “harboring” which is the passive concept.
Case law:
R v Cox (consent)
Consent is full, voluntary, free and informed. Freely and voluntarily given by someone capable of forming rational judgement.
Case law:
R v Cox (possession)
Two elements to prove possession:
1) physical (custody and control), and
2) mental (knowledge and intent)
Case law:
R v Mohi
The offence (abduction) is completed at the time of taking away, as long as there is the necessary intent.
Case law:
R v Forrest and Forrest
The best evidence possible should be addicted by the prosecution to prove the victims age.
Case law:
R v Chartrand
Regarding Abduction of a young person under 16
It is not necessary to prove that the accused intended to permanently deprive the caregivers of the young person.
Define “detaining” in terms of abduction/kidnapping.
Doing something to impose a constraint or restraint on the person detained.
