Abduction/kidnapping Flashcards
Unlawfully
Unlawfully means “without lawful justification or excuse”.
Taking away vs detaining
Taking away and detaining are two separate and distinct acts giving rise to two different offences.
R v Crossan
Taking away and detaining are separate and distinct offences. The first consists of taking the victim away; the second of detaining them. 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.
Taking away
Taking away generally refers to situations where the victim is physically removed from one place to another.
Example - a baby that is taken from its mother at gunpoint and driven to another location to be held for ransom.
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”.
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 “harboring” or mere failure to hand over.
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”.
With his or her consent obtained by fraud
An offender may deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions.
With his or her consent obtained by duress
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.
R v Mohi
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.
Marry
In this context, the term “to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955
With Intent to hold him or her for ransom
A “ransom” is a sum of money demanded or paid for the release of a person being held captive.
With Intent to hold him or her to service
This provision relates to situations where the offenders intent is to keep the victim as a servant or slave.
With Intent to cause him or her to be confined
“Confining” a person can include restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them.
With Intent to cause him or her to be imprisoned.
To imprison a person means to put them in prison, or to confine them as if in a prison.
Sent
The offenders intent is for the victim to leave the country.
Taken
The victim is in the company or custody of a person accompanying them out of New Zealand.
Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
Young person
In this section a young person means a person under the age of 16
Entice
To entice means to tempt, persuade, or attract by arousing hope or desire.
Receives a young person
Knowing the young person has been unlawfully taken with the necessary intent.
This may relate to situations where, for example, a father takes his child from its mother contrary to a court order, and hides the child at the grandparents house.
Section 209A Crimes Act 1961
Young person under 16 cannot consent to being taken aware or detained.
For the purposes of sections 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.
Section 210(3)(a) Crimes Act 1961
For the purposes of subsections (1) and (2) it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion.
Belief that person was over 16 is no defence
Mistake as to age is no defence.
Section 210(3)(b), Crimes Act 1961
For the purposes of subsections (1) and (2) if is immaterial whether the offender believes the young person to be of or over the age of 16
Section 127, Crimes Act 1961
No presumption because of age
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Good faith defence
A person who claims in good faith a right to the possession of a child under the age of 16 years cannot be convicted of an offence against section 209 or 210 because he or she gets possession of the young person.
When a defence under this section arises, It lies with the prosecution to negate good faith beyond reasonable doubt.
Abduction for purposes of marriage or civil union or sexual connection liability
Abduction for purposes of marriage or civil union or sexual connection
Section 208, 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.
Kidnapping liability
Kidnapping
Section 209, 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
Abduction of young person under 16
Abduction of young person under 16 Section 210(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.
What must be proved for a conviction under s208.
- The defendant took away or detained a person.
- The taking or detention was intentional and deliberate.
- The taking or detention was unlawful.
- The taking or detention was without that person’s consent (or with consent induced by fraud or duress).
- The defendant knew that there was no consent to the taking or detention
- The defendant intended to:
(a) Marry the person taken or detained; or
(b) Have sexual connection with the person taken or detained; or
(c) Cause the person taken or detained to marry another person or to have sexual connection with another person.
Consent
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
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.
Cause him or her to marry another person.
This relates to situations where the abductor takes away or detains a victim to enable another person to marry them, for example detaining a young hindu woman for the purposes of enforcing an arranged marriage.
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 must be proved for a conviction under s210(1)
- The defendant took, enticed or detained a person under the age of 16 years.
- The taking, enticement or detention was deliberate or intentional.
- The taking, enticement or detention was from a person who had lawful care of the young person.
- The defendant knew the other person had lawful care of the young person.
- The taking, enticement or detention was ‘unlawful’.
- It was done with intent to deprive a parent, guardian, or other person having lawful care or charges of the young person of possession of that young person.
What must be proved for a conviction under 210(2)
- The defendant received a person under the age of 16 years.
- The receiving was deliberate or intentional.
- The 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 or her of the possession of that young person.
- The defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person.
Intent - Section 210(1)
There must be an intention to take, entice or detain a young person and also a specific intent to deprive the parent or other specified person of the possession of the child.
Intent - Section 210(2)
This section could be read as broadening the scope of the offence to include 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 an intent.
Can a young person consent to being taken away for the purpose of sections 209 to 210 Crimes Act 1961?
They cannot consent to being taken away (section 210(3) Crimes Act 1961). For the purposes of subsection (1) and (2) it is immaterial whether the offender believes the young person consents, or is taken or goes or is received at his or her own suggestion.
