Abduction and Kidnapping - Case law and definitions

Question 1

R v WELLARD

Answer 1

The essence of the offence of kidnapping is the deprivation of liberty coupled with a taking away from the place where the victim wants to be

Question 2

R v PRYCE

Answer 2

Detaining is an active concept meaning to keep in confinement or custody. This is to be contrasted to the passive concept of “harbouring” or a mere failure to hand over

Question 3

R v MOHI

Answer 3

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 4

R v CROSSAN

Answer 4

Taking away and detaining are two separate and distinct offences. The first consists of taking (the victim) away, and 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 5

R v COX (possession)

Answer 5

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

Question 6

R v WAAKA

Answer 6

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

Person

Answer 7

gender neutral; proved by judicial notice or circumstantially

Question 8

Consent

Answer 8

Consent is a persons conscious and voluntary agreement to something desired or proposed by another

Question 9

Consent by fraud

Answer 9

Consent obtained by a misrepresentation of facts or of the offenders intentions.

Question 10

Consent by duress

Answer 10

Consent obtained by actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion.

Question 11

R v COX (consent)

Answer 11

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

Question 12

Defence sec 209A

Answer 12

Sec 209A - Consent is not a defence to charges under sec 208 - 210 when the person taken is under the age of 16years

Question 13

Intent

Answer 13

In criminal law there are two types of intent.
Firstly, Intent means the act or omission must be done deliberately. The act or omission must be more than accidental.
The second type of intent is an intent to produce a specific result. In this context, result means “aim, object or purpose”

Question 14

RANSOM

Answer 14

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

Question 15

Service

Answer 15

Hold as a servant or slave

Question 16

Imprisoned

Answer 16

To be held as if in prison, (includes locked in a boot of a car or in a room)

Question 17

Sent or taken out of NZ

Answer 17

Sent - normal meaning, to leave the shores of NZ (includes situations where the victim leaves the country on their own, perhaps as the result of a threat or other form of duress)

Taken - suggests the victim is in the company or custody of another accompanying them out of NZ

Question 18

Marry

Answer 18

In this context, “to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1995

Question 19

Sexual connection

Answer 19

sexual connection - sec 2 CA61
Sexual connection means:
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 persons genitalia or anuse; OR
c) continuation of a kind described in paragraph (a) or (b)