Abduction

Question 1

Abduction

Section and Penalty

Answer 1

CA61; S208 (a); (b); (c)

14 years imprisonment

Question 2

Abduction - Elements

Answer 2

1) Unlawfully
2) Takes away or detains
3) A person

4) Without the person’s consent
OR
With the person’s consent obtained by fraud or duress -

5) With intent to:
a) go through a form of marriage or civil union with the person; 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.

Question 3

What must be proved - R v M

Answer 3

R v M:

The Crown must prove that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting.

Question 4

Unlawfully

Answer 4

Without lawful justification, authority or excuse

Question 5

Taking away

Answer 5

Where the victim is physically removed from one place to another

R v Wellard:

“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 6

Taking away vs detaining

Answer 6

R v Crosson:

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

Question 7

Detains

Answer 7

Doing something to impose a constraint or restraint on the person detained.

R v Pryce:

Detaining is an active concept meaning to “keep in confinement or custody.” This is to be contrasted with the passive concept of “harbouring” or mere failure to hand over.

Question 8

Person

Answer 8

Gender neutral proven by judicial notice or circumstantial evidence.

Question 9

Consent

Answer 9

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Consent may be conveyed by words or conduct or both.

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 judgement.”

Question 10

Consent obtained by fraud

Answer 10

Consent obtained by the misrepresentation of the facts or the offender’s intentions.

Question 11

Consent obtained by duress

Answer 11

Acquiescing to an offender’s demands based on fear of the consequences if they refuse.

Question 12

Child under 16

Answer 12

Section 209A Crimes Act 1961

For the purposes of S208 and S209, a person under the age of 16 years cannot consent to being taken away or detained.

Question 13

Intent

Answer 13

In a criminal law context there are two specific types of an intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.

Case law: Collister.

Question 14

R v Mohi

Answer 14

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 15

R v Waaka

Answer 15

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

Question 16

Sexual connection

Answer 16

CA61; S2:

(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of -
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b).

Question 17

Go through a form of marriage or civil union

Answer 17

To engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.

Question 18

Cause him or her to marry another person

Answer 18

Where the abductor takes away or detains a victim to enable another person to marry them.

Question 19

Cause him or her to have sexual connection with another person

Answer 19

The offender’s intent is to enable another person to have sexual connection with the victim.

Question 20

What definitions and/or case laws should be included in your discussion of the liability of:

• 208(a); (b); (c) - abduction

Answer 20

Definition of unlawfully: without lawful justification or excuse;

Definition of takes away or detains: takes - where the victim is physically removed from one place to another and R v Wellard; detains - an active concept that involves doing something to impose a constraint or restraint on the person detained and R v Pryce;

Taking away and detaining being separate offences: R v Crosson

What must be proved: R v M - The Crown must prove that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting.

Definition of person: CA61; S2 - gender neutral proven by judicial notice or circumstantial evidence

Definition of consent: a person’s conscious and voluntary agreement to something desired and proposed by another; R v Cox;

Definition of consent obtained by fraud or duress: fraud - consent obtained by the misrepresentation of the facts or the offender’s intentions; duress - acquiescing to an offender’s demands based on fear of the consequences if they refuse.

When offence is complete: R v Mohi;

Definition of intent: 2 specific types; R v Collister; R v Waaka

Definition of marriage: to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.

Definition of sexual connection: S2 CA61

Definition of causing the two previous: where the abductor takes away or detains a victim to enable another person to marry them; the offender’s intent is to enable another person to have sexual connection with the victim.