Abduction

Question 1

Abduction for marriage or sexual connection

Answer 1

Section 208 C A 1961

Every one is liable to imprisonment for a term not exceeding 14 years who

• unlawfully takes away or detains
• a person
• without his or her consent or
• with his or her consent obtained by fraud or duress,—

(a) with intent to marry him or her; or
(b) with intent to have sexual connection with him or her; or
(c) with intent to cause him or her to be married to or to have sexual connection with
some other person.

Question 2

Abduction - What must be

proved

Answer 2

1. The defendant took away or detained a person;
2. The taking or detention was intentional or deliberate;
3. The taking or detention was unlawful;
4. The taking or detention was without that person’s consent (or with
   consent induced by fraud or duress);
5. The defendant knew that there was no consent to the taking or detention;
   and
6. The defendant intended to:
   (a) Marry the person taken or detained; or
   (b) Have sexual connection with the person taken or detained; or
   (c) Cause the person taken or detained to marry another person or to
   have sexual connection with another person.

Question 3

Unlawfully meaning

Answer 3

“Without lawful justification, authority or excuse”.

Question 4

R V WELLARD

Answer 4

Taking away:

The essence of the offence of kidnapping is the “deprivation of liberty coupled with a carrying away from the place where the victim wants to be”.

Question 5

R V CROSSAN

Answer 5

“Taking away and detaining are “separate and distinct offences. The first consists of taking [the victim] away; the second of detaining her.

The first offence was complete when the prisoner took the woman away against her will. Then, having
taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.”

Question 6

R V PRYCE

Answer 6

Detaining is an active concept meaning to “keep in confinement or custody”.

This is to be contrasted to the passive concept of “harbouring” or mere failure to
hand over.

Question 7

Person

Answer 7

Gender neutral, Accepted by judicial notice proven by circumstantial evidence

Question 8

Consent - R V COX

Answer 8

“Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”

Question 9

Consent obtained by fraud example

Answer 9

In R V Wellard - the offender gained the victim’s consent fraudulently by representing himself as a police officer, which he was not.

Question 10

Consent obtained by duress meaning

Answer 10

A victim may acquiesce to an offender’s demands based on fear of the consequences if they refuse.

Note example: A man approaches prostitutes and fraudulently identifies himself as a police
officer. He threatens to arrest the prostitutes, unless he receives free or discounted sexual services. As a result of his fraudulent identification and subsequent threat of arrest they comply with his wishes.

Question 11

MOHI [1982] Complete

Not R V MOHI

Answer 11

The offence is complete once there has been a period of detention or a taking accompanied by the necessary intent, regardless of whether that intent was carried out.

Question 12

R V WAAKA

Answer 12

Intent may be formed at any time during the taking away. If a taking away commences without the intent to have intercourse, but that intent is formed during the taking away, then that is sufficient for the purposes of the section.

Question 13

“To Marry” meaning

Answer 13

means to engage in a marriage in accordance with the provisions of the Marriage Act 1955