Abduction and Kidnapping Flashcards
What are the ingredients for Abduction?
Abduction Section
Section 208(a)(b)(c) CA61
14yrs
- Unlawfully
- Takes away or detains
- A person
- Without their consent OR with their consent obtained by duress or fraud
- With intent to:
(a) Marry him or her OR
(b) Have sexual connection with her or her OR
(c) Cause him or her to be married OR have sexual connection with some other person
What are the ingredients for Kidnapping?
Kidnapping
Section 209(a)(b)(c) CA 1961
14yrs
- Unlawfully
- Takes away or detains
- A person
- Without their consent OR with their consent obtained by duress or fraud
- With intent to:
(a) To Hold him or her for ransom or service OR
(b) Cause him or her to be detained or confined OR
(c) Cause him or her to be sent or taken out of NZ
What is the defence for Kidnapping as under Section 209A, 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 this section because he or she gets possession of the young person. - Crimes Act 1961 s210A
What are the ingredients for Abduction of Young Person Under 16
Section 210(1) and 210(2)
Section 210, Crimes Act 1961
Abduction of young person under 16
Section 210(1) - 7yrs
- 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.
Section 210(2) - 7yrs
- Receives a young person
- Knowing
- They have 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 or her
- The possession of him or her.
Explain Section 210(A) CA 1961 ‘Statutory defence of good faith’
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.
When a defence under s210A arises, it lies with the prosecution to negate good faith beyond reasonable doubt.
The question for the jury will not be whether the defendant was, in fact and law, entitled to the possession of the child or young person – this point being covered by the word “unlawfully” – but whether it is shown beyond reasonable doubt that the defendant did not believe in good faith that he or she was so entitled:
Defintion for the following:
- Person
- Consent
- With consent obtained by fraud (DECEPTION)
- With consent obtained by DURESS.
DEFINITIONS
- PERSON
Gender neutral, proven by judicial notice or circumstantial evidence. - CONSENT
A persons conscious and voluntary agreement to do something desired or proposed by another. - TO OBTAIN CONSENT BY FRAUD
Consent obtained by misrepresentation of the facts or the offenders intentions. - TO OBTAIN CONSENT BY DURESS
Consent obtained by actual or implied threat of force to the victim or another person or fear of the consequence
Definition for the following:
- Intent
- Ransom
- Service
- Imprisoned
- Sent or taken out of NZ
- INTENT
A person does something intentionally of they mean to do it, they desire a specific result and act with the aim or purpose of achieving it. - RANSOM
A sum of money demanded or paid for the release of a person being held captive. - SERVICE
Offender intends to keep the victim as a servant or slave. - IMPRISONED
Put in prison or confine as if in prison - SENT OR TAKEN OUT OF NZ
Sent - offenders intent is that victim leave NZ
Taken suggests victim in company or custody of a person accompanying them out of NZ.
Definition for the following:
- Marry
- When the offence is complete (R v Mohi)
- Sexual Connection - Section 2, Crimes Act 1961
- MARRY
Engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955 - WHEN THE OFFENCE IS COMPLETE - R v MOHI
Offence is committed at the time of the taking away, so long as there is a the moment the necessary intent. Crown does not need to show that the intent was carried out. - SEXUAL CONNECTION
(a) Connected effected by the introduction into the genitalia or anus of one person, otherwise for genuine medical purpose of:
- a part of the body of another person OR
- An object held or manipulated by another person
OR
(b) Connection between the mouth or tongue of one person and part of another person’s genitalia or anus
OR
(c) The continuation of connection of a kind described in paragraph (a) or (b)
CASE LAW
- R v Chartland
- R v Wellard
- R v Pryce
R v CHARTLAND
Unlawfully means “Without lawful justification, authority or excuse”
R v WELLARD
Kidnapping is the ‘deprivation of liberty coupled with a carrying away from the place where the victim wants to be.
R v PRYCE
Active concept meaning to “keep in confinement or custody”. This is to be contrasted to the passive concept of “harboring” or mere failure to hand over.
CASE LAW
- R v Mohi
- R v Crossan
- R v Cox
R v MOHI
Offence is committed at the time of the taking away, so long as there is at the moment the necessary intent. Crown does not need to show that the intent was carried out.
R v CROSSAN
Taking away and detaining are “separate and distinct offences” The first consists of taking (the victim) away; the second of detaining them.
R v COX
Consent must be full, voluntary, free and informed. Freely and voluntary given by a person in a position to form a rational judgement.
What must be proved for a conviction under Section 210(2)?
For a conviction under s 210(2) the Crown must prove that:
- The defendant “RECEIVED” a person under the age of 16;
- The receiving was DELIBERATE or INTENTIONAL;
- The defendant KNEW that the young person had been unlawfully taken, enticed away or detained by another FROM a person WHO HAD LAWFUL POSSESSION of the young person; and
- The defendant INTENDED by reason of the receiving TO DEPRIVE THE PERSON with lawful care of the possession of that young person.
