Abduction and Kidnapping Flashcards
Abduction for purposes of marriage or civil union or sexual connection
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
In terms of Abduction what must the crown prove?
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
Define ‘unlawfully’
Without lawful justification, authority or excuse
Define ‘taking away’
Generally refers to 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 Wellard circumstances
Women accompanied someone falsely misrepresenting themselves as a Police Officer
R v Crossan
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”.
Explain ‘detaining’
Detaining is an active concept rather than a passive one. It involves doing something to impose a constraint 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 mere failure to hand over.
Boyd v R circumstances
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
Minimum time period for detaining
and
Age factors for 208 and 209
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.
Explain ‘consent’
A persons conscious and voluntary agreement to something proposed or desired
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 judgement
Explain ‘duress’ in regards to Abduction
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
Hirani v Hirani circumstances
Obtained by duress
A young Hindi girl forced into arranged marriage because of fear she would be kicked out of the family home.
R v Mohi
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
Kidnapping
Section, elements and penalty
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
What must be proved for conviction under 209
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
Define ‘ransom’
A ransom is a sum of money demanded or paid for the release of a person being held captive
Define ‘confine’
Restricting movement to within a geographical area but also has a wider meaning includes imposing constraint and exercising control over them
Abduction of a young person under 16 (1)
Section, Elements and penalty
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
Abduction of a young person under 16 (2)
Section, Elements and penalty
- 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
Section 210 (3)(a) and (b)
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
What must be proved for a conviction under S210 (1)
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
What must be proved for a conviction under S210 (2)
1) Received
2) Intentional
3) Knew the young person had
been unlawfully taken,
enticed or detained from a
parent
4) Intended to deprive parent
Explain intent in terms of depriving parent of custody
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”
R v Chartrand circumstances
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”
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
Define ‘unlawfully’
Without lawful authority
Define ‘enticed’
To tempt, persuade or attract by arousing hope or desire
Section 127
There is no presumption of law that a person is incapable of sexual connection because of their age
Section 210A
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
R v Chartrand
Depriving might not be primary intent, however it’s sufficient if the actions are likely to result in depriving
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
Fraud meaning:
Deceiving victim by misrepresenting facts
Section 209A
For the purposes of Section 208 and 209 a young person under 16 cannot consent to being taken away or detained
