Abduction and Kidnapping - Case Law

Question 1

Taking away

Answer 1

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”.

Question 2

Taking away vs detaining

Answer 2

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.”

Question 3

Detains

Answer 3

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.

Question 4

Consent

Answer 4

R v Cox
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”.

Question 5

Intent

Offence complete

Answer 5

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.

Question 6

Intent

Formed at any time

Answer 6

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.

Question 7

Kidnapping proof

Answer 7

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.

Question 8

Proof of age

Answer 8

R v Forrest and Forrest
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”