Abduction Flashcards
Abduction
ABDUCTION FOR PURPOSE OF MARRIAGE OR SEXUAL CONNECTION - S208
Everyone who/ Unlawfully (without lawful justification, authority or excuse) 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
(b) with intent to have sexual connection (S2 CA61) with him or her
(c) with intent to cause him or her to be married to or to have sexual connection with some other person.
Kidnapping
KIDNAPPING - S209
Everyone who/ Unlawfully (without lawful justification, authority or excuse) 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 hold him/her for ransom or to service
(b) with INTENT to cause him/her to be confined/imprisoned
(c) with INTENT to cause him/her to be sent/taken out of NZ
To prove S208 and S209
WHAT MUST BE PROVED - S208 or S209
- The defendant took away or detained a person
- Was intentional or deliberate;
- The taking or detention was unlawful
- Was without that person’s consent (or with consent induced by fraud or duress) and defendant knew this
- The defendant intended (a), (b), or (c) - only difference in 208/209 is intent
Takes Away Vs Detains
R V CROSSAN - TAKES V DETAIN
Taking away and detaining are separate and distinct offences. First consists of taking away; the second of detaining. 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.
R V Wellard - Takes Away
Deprivation of liberty coupled with a carrying away from the place where the victim wants to be. Physically removed from one place to another.
R V Pryce
Detaining is an active concept - “keep in confinement or custody”. Compared to the passive concept of harbouring or mere failure to hand over.
R V Cox
Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgment.
R V Mohi
INTENT - 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.
R V Waaka
R V WAAKA - INTENT
Intent may be formed at anytime during the taking away. If a taking away commences without intent to have intercourse, but that is formed during the taking away, then that is sufficient for the purposes of the section.
R V M
Must prove that the accused intended to take away/detain the complainant and that he or she knew that complainant was not consenting.
Confine/Imprison
Confining can include restricting movements to within a geographical area, includes curtailing their activity and exercising control over them. Imprisoned narrower.
Abduction of Young Person
ABDUCTION OF YOUNG PERSON UNDER 16 - S210(1)
Everyone/ With intent to deprive a parent OR guardian OR other person having lawful care or charge of a young person/ Of the possession of the young person/ Unlawfully (without lawful justification, authority or excuse)/ Takes OR Entices away (persuade) OR detains/ The young person.
Receives Young Person
ABDUCTION OF YOUNG PERSON UNDER 16 - S210(2)
Everyone who/ Receives a young person/ Knowing he or she has been unlawfully taken OR enticed away OR detains/ With intent to deprive parent or guardian or other young person having lawful care or charge of him/her of the possession of him or her.
Intent of 210(1) and 210(2)
210(1) INTENT - Intention to take, entice, detain young person and intent to deprive parent etc of the child
R V Cox
COX - Possession
Possession involves two elements. The first, the physical element, is actual or potential physical custody/control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession.
