Abduction and Kidnapping Flashcards
Liability
Abduction
Section 208
Crimes Act 1961
Pen: 14yrs
Section 208
- Unlawfully
- Takes away OR detains
- Person
- Without consent OR with consent obtained by fraud/duress
- With intent to:
(a) intent to marry OR
(b) intent of have sexual connection OR
(c) intent to cause him/her to be married or have sexual connection with some other person
What must be proved for an offence under 208
- defendant took away or detained a person
- taking or detention was intentional or deliberate
- taking or detaining was unlawful
- taking or detention was without that persons consent (or with consent by fraud/duress)
- defendant knew that there was no consent to the taking or detention
- defendant intended to marry, have sexual connection or cause to marry another person or have sexual connection
Definition of “Unlawfully”
Without lawful justification, authority or excuse
Definition of “Taking away”
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
Definition of “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
Definition of “Person”
Gender neutral, accepted by judicial notice or proved circumstantially
Definition of “Consent”
A 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 forma rational judgement
Definition of “Consent obtained by fraud”
Deceiving someone into agreeing to a proposition by misrepresenting the facts of their intentions
Definition of “Consent obtained by duress”
Give in to an offenders demands based on fear of the consequences if they refuse
When is the offence of abduction complete
At the time of detaining with one of the specified intents
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 purpose of the section
Definition of “Marry”
Engage in marriage solemnised in accordance with the provisions of the marriage act 1955
Definition of “Sexual connection”
As defined in s2 of the Crimes Act 1961
Definition of “Causes him/her to marry another person”
Takes away or detains to enable another person to marry them
Causes him/her to have sexual connection with another person
Takes away or detains to enable another person to have sexual connection with them
Liability
Kidnapping
Section 209
Crimes Act 1961
Pen: 14yrs
- Unlawfully
- Takes away OR detains
- Person
- Without consent OR with consent obtained by fraud/duress
- With intent to:
(a) intent to hold for ransom or service
(b) intent to cause to be confined or imprisoned
(c) intent to cause to be sent or taken out of NZ
What must be proved
- defendant took away or detained a person
- taking or detention was intentional or deliberate
- taking or detaining was unlawful
- taking or detention was without that persons consent (or with consent by fraud/duress)
- defendant knew that there was no consent to the taking or detention
- defendant intended to hold for ransom or service, cause to be confined or imprisoned or cause to be sent or taken out of NZ
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
Definition of “intent to hold for ransom”
A sum of money demand or paid for the release of a person being held captive
Definition of “intent to hold to service”
To keep the victim as a slave or servant
Definition of :Intent to cause to be confined”
Includes restricting their movements to within a geographical area and curtailing their activity and exercising control and influence over them
Definition of “Intent to cause to be imprisoned”
To put them in prison or to confine them as if in prison, eg. locked in a room or in the boot of a car
Definition of “Intent to cause to be sent or taken out of NZ”
SENT
Victim leaves the county on their own as a result of a threat or form of duress
TAKEN
The victim is in the company or custody or a person accompanying them out of NZ
Liability
Abduction of Young Person under 16
Section 210
Crimes Act 1961
Section 210(1)
- Intent to deprive a parent OR guardian OR other person having the lawful care or charge
- Young person
- Unlawfully takes away OR entices away OR detains the young person
Section 210(2)
- Receives a young person
- Knowing that he/she has been
- Unlawfully taken away OR enticed away OR detained
- Intent to deprive a parent OR guardian OR other person having the lawful care or charge of the possession of him/her
What must be proved for a charge under Section 210
210(1)
1) Defendant took, enticed or detained a person under 16yrs
2) The taking, enticement or detention was deliberate or intentional
3) The taking, enticement or detention was from a person who had lawful care of the young person
4) The defendant knew the other person had lawful care of the young person
5) The taking, enticement or detention was unlawful and
6) It was done with intent to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that young person
210(2)
1) Defendant received a person under 16yrs
2) The receiving was deliberate and intentional
3) Defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of him/her of the possession of that young person and
4) Defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care of charge of him or her of the possession of that young person
Intent - section 210(1) and (2)
210(1)
Intention to take, entice or detain and also specific intent to deprive the parent or other specified person of the possession of the child
210(2)
Includes people who receive a young person without an intent to deprive the person with lawful care of possession provided the defendant knew that the person responsible for the taking had such intent
Is it necessary to prove that the accused intended permanent depravation from a a lawful carer
No. It can be for a short period of time
R v Chartrand
Enticed boy away to riverbank and took photographs of him, intending to give the photos to the childs parents whom he did not know
Definition of “young person”
Someone under 16 years old
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
Definition of “unlawfully”
Means no more than without lawful authority
Definition of “takes, entices etc”
To entice means to tempt, persuade or attract by arousing hope or desire
Definition of “knowing”
Simester and Brookbanks
Knowing means “knowing or correctly believing”. The defendant may believe something wrongly but cannot know something this is false.
Is consent by the young person a defence to charges under S208-210
No, a child under 16 cannot consent
It is immaterial whether the offender believes the young person consents or is taken or goes or is received by their own suggestion
Is it a defence if the offender believes that the person to be of or over the age of 16
No
No presumption of law because of age
There is no presumption of law that a person is incapable of sexual connection because of their age
What is the Statutory defence to a charge abduction of a young person
Claim in “good faith” a right to the possession of a young person under 16yrs
