Abduction and Kidnapping Case Laws Flashcards
R v Wellard - What was it about?
In R v Wellard a man approached a young couple and told them, falsely, that he was a Police officer looking for drugs. He asked the young woman to accompany him, which she did, believing she had to follow his instructions. The girl walked about 100 yards with him and got into the back of his car, before being rescued by her boyfriend.
R v Wellard (essence of kidnapping)
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 - What was it about?
In R v Crossan the defendant took a woman from her home at gunpoint and drove her to another address, where he detained her with intent to “carnally know” her. He was charged that he “did take her away and detain her”. Although affirming Crossan’s convictions, the Court of Appeal criticised the formulation of the charge combining both offences in a single count.
R v Crossan (Taking away vs Detaining)
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”.
R v Pryce (Detaining)
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.
R v Cox (Consent)
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment”.
R v Cox (Possession)
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 intention: knowledge in the sense of an awareness by the accused that the substance is in his possession… and an intention to exercise possession.
R v Mohi - What was it about?
In R v Mohi a man who was charged with abducting his wife argued that the Crown had to prove both a lack of consent to the taking away, and a lack of consent to the subsequent intercourse. The High Court disagreed and held that to satisfy the requirements of section 208, “the time of importance is that of the taking away,” and any subsequent marriage or sexual intercourse without consent would be the subject of a separate investigation.
R v Mohi (Taking away and Intent)
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 Forrest and Forrest (Proof of Age)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age”.
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.
R v Waaka - what was it about?
The defendant, while attending a party, assisted an associate to carry a comatose woman behind a wall some 3–4 metres away, where the associate subsequently raped her.
During the course of carrying her away the defendant gave some thought to raping the woman himself, but then dismissed the idea.
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.
What are the 8 ‘must know’ Abduction and Kidnapping case laws?
- R v Wellard (essence of kidnapping)
- R v Crossan (Taking away vs Detaining)
- R v Pryce (Detaining)
- R v Cox (Consent)
- R v Cox (Possession)
- R v Mohi (Taking away and Intent)
- R v Forrest and Forrest (Proof of Age)
- R v M (Intent)
