Abduction and Kidnapping Flashcards
What must be proved for s208
For a conviction under s208 the Crown must prove that:
- The defendant took away or detained a person;
- The taking or detention was intentional or deliberate;
- The taking or detention was unlawful;
- The taking or detention was without that person’s consent (or with consent induced by fraud or duress);
- The defendant knew that there was no consent to the taking or detention; and
- 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.
Consent obtained by Fraud
In some cases the offender may deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions.
In R v Wellard62 the offender gained the victim’s consent fraudulently by representing himself as a police officer, which he was not.
In R v Cort63 a man stopped his car at several bus stops where women were waiting on their own. He falsely told them that the bus had broken down and offered to give them a lift. On two occasions women voluntarily got into his car on the basis of his deceit, and he was convicted of kidnapping.
The women in this case were unharmed and Cort denied any sinister motive, claiming that the handcuffs, Durex, string, Stanley knife and tape located in his car were there for innocent purposes.
Consent obtained by duress
In other cases a victim may acquiesce to an offender’s demands based on fear of the consequences if they refuse.
Duress may arise from the actual or implied threat of force to the victim or another person, but can also include other forms of pressure or coercion.
In a civil case, Hirani v Hirani64, a young Indian Hindi girl successfully sought a divorce after being forced by her family to enter into an arranged marriage. The girl went through with the ceremony under threat of being kicked out of the family home if she did not, which would have left her with nowhere to live and no means to support herself.
The critical question is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.
In the following example, the “consent” of the victims was obtained by a combination of fraud and duress.
Intent in abduction cases
In abduction, marriage and sexual connection appear only as matters of intent, and it is not necessary to prove that they actually occurred or were even attempted.
In R v Mohi65 a man who was charged with abducting his wife argued that the Crown had to prove both a lack of consent to the taking away, and a lack of consent to the subsequent intercourse.
The High Court disagreed and held that to satisfy the requirements of s208, “the time of importance is that of the taking away,” and any subsequent marriage or sexual intercourse without consent would be the subject of a separate investigation.
What must be proved for s209
For a conviction under s209 the Crown must prove that the:
- Defendant took away or detained a person;
- Taking or detention was intentional or deliberate;
- Taking or detention was unlawful;
- Taking was done without that person’s consent (or with consent induced by fraud or duress);
- Defendant knew that there was no consent to the taking or detention; and
- Defendant intended to:
(a) Hold the person for ransom or to service; or
(b) Cause the person to be confined or imprisoned; or
(c) Cause the person to be sent or taken out of New Zealand.
Intent to cause to be confined meaning
“Confining” a person can include restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them.
Note that the inclusion of the words “to cause” in this section suggest that although the kidnapper must intend to be responsible for the victim being confined, it is not necessary for him to directly effect the confinement himself.
What must be proved for s210(1)
For a conviction under s210(1) of the Crimes Act 1961 the Crown must prove that:
- The defendant took, enticed or detained a person under the age of 16 years;
- The taking, enticement or detention was deliberate or intentional;
- The taking, enticement or detention was from a person who had lawful care of the young person;
- The defendant knew the other person had lawful care of the young person;
- The taking, enticement or detention was “unlawful”; and
- It was done with intent to deprive a parent, guardian” or other person having lawful care or charge of the young person” of possession of that young person.
What must be proved for s210(2)
For a conviction under s 210(2) the Crown must prove that:
- The defendant recieved a person under the age of 16 years;
- The receiving was deliberate or intentional;
- The defendant knew the yound person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of the him or her of the possession of that young person; and
- The defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person.
Person having lawful care or charge meaning for abduction under 16
Although this offence falls under the heading of “Crimes Against the Person” it is not an offence against the person of the child, but rather against the custodial rights of the parent or guardian.
The section also protects the rights of those having temporary lawful possession of a young person, such as Child Youth & Family caregivers.
A parent may commit an offence against this section in respect of their own child where their actions are unlawful; for example a father who takes his own child from its mother contrary to a Court Order.
Depriving a parent of possession may not be the offender’s primary intention, however if they know that their actions will inevitably cause that outcome, then depriving the parent can also be said to have been “intentional”.
The Court in this matter said it was sufficient that the taker knows or foresees that his or her actions would be certain or substantially certain to result in the parents (guardians, etc.) being deprived of the ability to exercise control over the child.
The Court went on to say that “whether the defendant may have had an innocent motive, or intended to interfere with possession for a very short period of time is beside the point”.
It is not necessary to prove the accused intended a permanent deprivation.
How to prove age of child
The Court of Appeal suggested that in that case it might have been sufficient if, along with producing her birth certificate, the girl had given additional testimony, for instance as to the day on which she habitually celebrated her birthday, the age at which she first went to school, and in what year, and so on.
What if the child consents to be taken?
Subsection (3)(a) provides that it is immaterial that the child consents to or even instigates the departure, although a person “takes” a child only if his or her conduct is an effective cause of it.
Consent is not a defence to charges under ss208–210 when the person taken is under the age of 16 years: s209A Crimes Act 1961.
For the purposes of ss208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.
For the purposes of subsections (1) and (2), it is immaterial whether the offender believes the young person to be of or over the age of 16.
Statutory defence of good faith
Section 210A, Crimes Act 1961
A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or section 210 because he or she gets possession of the young person.
