Abduction and Kidnapping Flashcards
Penalty
14 years imrprisonment
Ingredients Abduction for marriage or sexual connection
1) Unlawfully
2) Takes away OR Detains
3) A Person
4) Without his or her consent OR With his or her consent obtained by fraud or duress
5) With Intent to:
a) marry him or her OR
b) have sexual connection with him or her
c) cause him or her to be married to some other person OR cause to have sexual connection with some other person
Unlawfully
R v Chartrand
Without lawful justification, authority or excuse
Takes Away OR Detains
R v Crossan
R v Wellard
R v Pryce
Taking away and detaining are “separate and distinct offences. The first consists of taking the victim away. The second of detaining them.
R v Crossan
Takes Away:
Kidnapping is the deprivation of liberty coupled with carrying away from the place where the victim wants to be.
R v Wellard
Detains:
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 have over.
R v Pryce
Person
Gender neutral proven by judicial notice or circumstantial evidence.
Without his or her consent OR
With his or her consent obtained by fraud or duress
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person to form a rational judgement.
R v Cox
To Obtain Consent by Fraud
Consent obtained by the misrepresentation of the facts or the offenders intentions.
To obtain consent by Duress
Consent obtained actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion.
Sec 209A Crimes Act 1961
Can a child under 16years consent?
A child under the age o 16 years cannot consent to being taken away or detained.
With Intent to (a) (b) or (c)
a) marry him or her OR
b) have sexual connection with him or her OR
c) cause him or her to be married to or to have sexual connection with some other person
Intent
A person does something intentionally if they mean to do it. They desire a specific result and act with the aim or purpose of achieving it.
R v Mohan - A decision to bring about, in so far as it lies within the accused power, the commission of the offence.
R v Mohi - The offence is committed at the time of taking away, so long as there is, at that moment, the necessary intent. It has never been regarded as necessary… that the crown should show the intent was carried out.
R v Waaka - A fleeting or passing thought is not sufficient. There must be a firm intent or firm purpose to effect an act.
a) Marry him or her
In this context, “to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.
b) Have Sexual Connection With Him or her
Sexual Connection - Sec 2 Crimes Act 1961
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of-
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b).
c) Cause to be married or have sexual connection with some other person:
This relates to situations where the abductor takes away or detains a victim to enable another person to marry them.
OR
Under this provision, the offenders intent is to enable another person to have sexual connection with the victim.
Kidnapping
Section
Sec 209 (a) (b) or (c) Crimes Act 1961
Ingredients of Kinapping
1) Unlawfully
2) Takes away or detains
3) A person
4) Without consent OR with consent obtained by Fraud or Duress
5) With intent to:
a) To hold him or her for ransom or to service OR
b) To cause him or her to be imprisoned or confined OR
c) To cause him or her to be sent or taken out of NZ.
Note: the ingredients and definitions for kidnapping are the same as abduction.
eg
1) Unlawfully - R v Chartrand
2) Takes Away - R v Wellard
Or Detains - R v Pryce
3) A person
4) Without Consent - R v Cox
Or Consent obtained by fraud or duress.
Sec 209A Crimes Act applies - child under 16 can’t consent to being taken away or detained.
5) Intent - R v Mohan and R v Waaka and R v Mohi
With Intent to:
a) Hold him or her for ransom or to service OR
b) To cause him or her to be imprisoned or confined OR
c) To cause him or her to be sent or taken out of NZ
Ransom:
A sum of money demanded or paid, for the release of a person being held capture.
Service:
Hold as a servant or slave.
Confined:
Restricting their movements to within a geographical area.
Imprisoned:
To be held as if in prison.
Sent out of New Zealand:
Sent - normal meaning, to be sent out of NZ shores.
Taken out of New Zealand:
Taken suggests victim in company or custody of a person accompanying them out of New Zealand.
Section 209A Crimes Act 1961
For the purposes of S208 and S209, a person under the age of 16 years cannot consent to being taken away or detained.
Good to Knows
Sec 210 (3)(a) CA 1961 immaterial whether the young person consents or goes or is taken at his or her own suggestion.
Sec 127 CA 1961
There is no presumption of law that a person is incapable f sexual connection because of his or her age.
Statutory Defence
A person who claims in good faith a right to the possession of a young person under the age of 16 cannot be convicted of an offence against S209 or 210 because he or she gets possession of the young person.
Abduction - Section
Sec 208 (a) (b) or (c) Crimes Act 1961
When there evidence of both taking and detaining what should you do
Taking away and detaining are two seperate offences. Where there is evidence of both two charges should laid
