Abduction and Kidnapping

Question 1

Abduction for purposes of marriage or civil union or sexual connection

Answer 1

Section 208 CA

• Unlawfully
• Takes away or detains a
  person
• Without consent or with
  consent obtained by fraud or
  duress

(a) with intent to go through a form of marriage or civil union

(b) with intent to have sexual connection

(c) with intent to cause a person to go through a form of marriage or civil union or to have sexual connection with some other person

14 years

Question 2

In terms of Abduction what must the crown prove?

Answer 2

1) took away or detained

2) taking or detention was
intentional

3) taking or detention was
unlawful

4) without consent

5) knew that there was no
consent

6) had one of the intents listed
in a,b, or c

Question 3

Define ‘unlawfully’

Answer 3

Without lawful justification, authority or excuse

Question 4

Define ‘taking away’

Answer 4

Generally refers to situations where the victim is physically removed from one place to another

Question 5

R v Wellard

Answer 5

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

R v Wellard circumstances

Answer 6

Women accompanied someone falsely misrepresenting themselves as a Police Officer

Question 7

R v Crossan

Answer 7

Taking away and detaining are “separate and distinct offences. The first offence was complete when the prisoner took the victim 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 8

Explain ‘detaining’

Answer 8

Detaining is an active concept rather than a passive one. It involves doing something to impose a constraint on the person detained.

Question 9

R v Pryce

Answer 9

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

Question 10

Boyd v R circumstances

Answer 10

Women at a lake with her dog was robbed then the man stood next to her talking for 15 before she was able to drive off.

Court found he had detained

Question 11

Minimum time period for detaining

and

Age factors for 208 and 209

Answer 11

The Crimes Act does not specify a minimum period for which a persons freedom must be impacted before they are deemed to be ‘detained’.

Age is not relevant for 208 and 209.

Question 12

Explain ‘consent’

Answer 12

A persons conscious and voluntary agreement to something proposed or desired

Question 13

R v Cox (consent)

Answer 13

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

Question 14

Explain ‘duress’ in regards to Abduction

Answer 14

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

Question 15

Hirani v Hirani circumstances

Answer 15

Obtained by duress

A young Hindi girl forced into arranged marriage because of fear she would be kicked out of the family home.

Question 16

R v Mohi

Answer 16

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 17

R v Waaka

Answer 17

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 18

Kidnapping

Section, elements and penalty

Answer 18

Section 209

• Unlawfully
• Takes away or detains
• Without consent or with
  consent obtained by fraud or
  duress

(a) with intent to hold him for
ransom or cause to service

(b) with intent to cause him to
be confined or imprisoned

(c) with intent to cause him to
be sent or taken out of NZ

Question 19

What must be proved for conviction under 209

Answer 19

1) Took away or detained

2) Taking away or detention was
intentional

3) Taking away or detention was
unlawful

4) Done without consent or
under fraud or duress

5) Defendant knew there was
no consent

6) Defendant had one of the
intents in a, b or c

Question 20

Define ‘ransom’

Answer 20

A ransom is a sum of money demanded or paid for the release of a person being held captive

Question 21

Define ‘confine’

Answer 21

Restricting movement to within a geographical area but also has a wider meaning includes imposing constraint and exercising control over them

Question 22

Abduction of a young person under 16 (1)

Section, Elements and penalty

Answer 22

Section 210 (1)

• With intent to deprive a parent
  or guardian or other person
  having the lawful care or
  charge of a young person
• Of the possession of the young
  person
• Unlawfully takes or entices
  away or detains
• The young person

7 years

Question 23

Abduction of a young person under 16 (2)

Section, Elements and penalty

Answer 23

• Receives a young person
• Knowing that he/she has been
  unlawfully taken or enticed
  away or detained
• With intent to deprive a parent
  or guardian or other person
  having the lawful care or
  charge of him/her of the
  possession of him

7 years

Question 24

Section 210 (3)(a) and (b)

Answer 24

For the purposes of subsection 1 and 2

(a) it is immaterial whether the young person consents, or is taken or goes or is received at their own suggestion

(b) It is immaterial whether the offender believes the young person to be of or over the age of 16

Question 25

What must be proved for a conviction under S210 (1)

Answer 25

1) Took, enticed or detained

2) Intentional

3) Taking was unlawful

4) Taking away was from person who had lawful care

5) Defendant knew the person had lawful care

6) Intent to deprive parent

Question 26

What must be proved for a conviction under S210 (2)

Answer 26

1) Received

2) Intentional

3) Knew the young person had
been unlawfully taken,
enticed or detained from a
parent

4) Intended to deprive parent

Question 27

Explain intent in terms of depriving parent of custody

Answer 27

Depriving may not be the primary intent, however, if they know that their actions will inevitably cause that outcome then can be said to be “intentional”

Question 28

R v Chartrand circumstances

Answer 28

A 43 year old man enticed away an 8 year old to take photos.

“Whether the defendant had an innocent motive or intended to interfere with possession for only a short time is beside the point”

Question 29

R v Forrest and Forrest

Answer 29

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age

Question 30

Define ‘unlawfully’

Answer 30

Without lawful authority

Question 31

Define ‘enticed’

Answer 31

To tempt, persuade or attract by arousing hope or desire

Question 32

Section 127

Answer 32

There is no presumption of law that a person is incapable of sexual connection because of their age

Question 33

Section 210A

Answer 33

Statutory defence of good faith

A person who claims in good faith a right to possession of a young person under 16 years cannot be convicted against 209 or 210

Question 34

R v Chartrand

Answer 34

Depriving might not be primary intent, however it’s sufficient if the actions are likely to result in depriving

Question 35

R v M

Answer 35

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 36

Fraud meaning:

Answer 36

Deceiving victim by misrepresenting facts

Question 37

Section 209A

Answer 37

For the purposes of Section 208 and 209 a young person under 16 cannot consent to being taken away or detained