Abduction and Kidnapping Flashcards
Criminal Liability for Abduction for Marriage or Sexual Connection
Abduction - Section 208 Crimes Act 1961
- Unlawfully
- takes away OR detains
- a person (P)
- without P’s consent OR with P’s consent obtained by fraud or duress
- A) With intent to go through a form of marriage or civil union with P OR
- B) With intent to have sexual connection with P OR
- C) With intent to cause P to go through a form of marriage or civil union, or to have sexual connection, with some other person.
What must be proved for a charge of Abduction
For a conviction under s208 the Crown must prove that:
- The defendant took away or detained a person;
- The taking or detention was intentional;
- 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) Go through a form of marriage, or civil union with 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 go through a form of marriage, or civil union to another person or to have sexual connection with another person.
Unlawfully
Unlawfully means “without lawful justification, authority or excuse”.
Taking Away
situations 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”.
R v Crossan
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.”
Detains
“Detaining” is an active concept rather than a passive one. It involves 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 to the passive concept of “harbouring” or mere failure to hand over.
Consent
‘Consent’ is a person’s conscious and voluntary agreement to something desired or proposed by another.
R v Cox (Consent)
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”
Consent obatianed by fraud
deceiving the victim into agreeing to a proposition by misrepresenting the facts or their intentions
Consent obtained by duress
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.
A victim agrees to the offender demand based on fear of the consequences if they refuse.
Mohi (Case Law)
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.
R v Waaka
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.
Criminal Liability for Kidnapping
Kidnapping - s209 Crimes Act 1961
- Unlawfully
- takes away or detains
- a person
- without his or her consent OR with his or her consent obtained by fraud or duress
- With intent to
- (a) with intent to hold him or her for ransom or to service; or
- (b) with intent to cause him or her to be confined or imprisoned; or
- (c) with intent to cause him or her to be sent or taken out of New Zealand.
What must be proved for a conviction under 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.
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: