ABDUCTION AND KIDNAPPING

Question 1

Liability: ABDUCTION (sex)

Answer 1

S208 (a), (b) or (c) Crimes Act 1961

Unlawfully
Takes away or
Detains
A person
Without their consent or
With consent obtained by fraud or duress
With intent to
(a) Go through a form of marriage or civil union or
(b) Have sexual connection with the person or
(c) Cause the person to go through a form of marriage or civil union or to have sexual connection with some other person

Question 2

UNLAWFULLY *

Answer 2

Without lawful justification or excuse

Question 3

TAKES AWAY *

Answer 3

The victim is physically removed from one place to another.

Question 4

R v WELLARD *

Answer 4

The essence of the offence of kidnapping is the ‘deprivation or liberty coupled with a carrying away from the place where the victim wants to be’.

Question 5

DETAINS *

Answer 5

Doing something to impose a constraint or restraint on the person detained.

Question 6

R v PRYCE *

Answer 6

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.

Question 7

R v CROSSAN *

Answer 7

Taking away and detaining are ‘separate and distinct offences’.

Question 8

PERSON *

Answer 8

Gender neutral. Determined by circumstantial evidence, judicial notice.

Question 9

CONSENT *

Answer 9

A person’s conscious and voluntary agreement to something desired or proposed by another.

Question 10

R v COX (consent) *

Answer 10

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

Question 11

AT WHAT AGE CAN A PERSON GIVE CONSENT? *

Answer 11

S209A 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.

Question 12

CONSENT OBTAINED BY FRAUD *

Answer 12

Deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions.

Question 13

CONSENT OBTAINED BY DURESS *

Answer 13

Acquiesce to an offender’s demands based on fear of the consequences if they refuse.

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 14

HIRANI v HIRANI

Answer 14

The critical question in relation to duress is whether the threats, pressure or coercion are such that they destroy the reality of consent and overbear the will of the individual.

Question 15

R v MOHI *

Answer 15

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.

Question 16

DEFENCE TO KIDNAPPING S209 and S210 *

Answer 16

S210A 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 s209 or s210 because he or she gets possession of the young person.

The prosecution must negate good faith beyond reasonable doubt.

Question 17

RANSOM *

Answer 17

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

Question 18

CONFINE *

Answer 18

Restricting a person’s movements to within a geographical area but also has a wider meaning that includes curtaining their activity and exercising control and influence over them.

Question 19

IMPRISON *

Answer 19

To put a person in prison or to confine them as if in prison.

Question 20

Liability: KIDNAPPING

Answer 20

S209 Crimes Act 1961

Unlawfully
Takes away or
Detains
A person
Without their consent or
With consent obtained by fraud or duress
With intent to
(a) Hold him or her for ransom or to service or
(b) Cause him or her to be confined or imprisoned or
(c) Cause him or her to be sent or taken out of New Zealand

Question 21

INTENT *

Answer 21

A deliberate act or omission done to achieve a specific outcome.

Question 22

R v CHARTRAND

Answer 22

Whether the defendant may have had an innocent motive or intended to interfere with possession for a very short period of time is beside the point.

Question 23

R v COX *

Answer 23

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession.

Question 24

ENTICE

Answer 24

To tempt, persuade or attract by arousing hope or desire.

Question 25

YOUNG PERSON *

Answer 25

A person under the age of 16 years

Question 26

R v FORREST and FORREST *

Answer 26

The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.

AKA birth certificate produced by a parent

Question 27

WHAT MUST A PERSON KNOW TO BE GUILTY OF RECEIVING? *

Answer 27

The offender must know that the young person they are receiving has been abducted.

Question 28

SIMESTER and BROOKBANKS *

Answer 28

Knowing means knowing or correctly believing. The defendant may believe something wrongly but cannot know something that is false.

Question 29

Liability: ABDUCTION OF A YOUNG PERSON UNDER 16

Answer 29

S210(1) Crimes Act 1961

With intent to deprive a parent or guardian or other person having lawful care or charge or a young person the possession of the young person
Unlawfully
Takes or
Entices away or
Detains
The young person

Question 30

SERVICE *

Answer 30

To keep the victim as a servant or slave

Question 31

Liability: ABDUCTION OF A YOUNG PERSON UNDER 16 (receiving)

Answer 31

S210(2) Crimes Act 1961
Receives
A young person
Knowing that he or 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 or her of the possession of him or her.