Abduction/kidnapping

Question 1

Unlawfully

Answer 1

Unlawfully means “without lawful justification or excuse”.

Question 2

Taking away vs detaining

Answer 2

Taking away and detaining are two separate and distinct acts giving rise to two different offences.

Question 3

R v Crossan

Answer 3

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.

Question 4

Taking away

Answer 4

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.

Question 5

R v Wellard

Answer 5

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 6

Detains

Answer 6

Detaining is an active concept rather than a passive one. It involves doing something to impose a constraint or restraint on the person detained.

Question 7

R v Pryce

Answer 7

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.

Question 8

R v Cox

Answer 8

Consent must be “full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgment”.

Question 9

With his or her consent obtained by fraud

Answer 9

An offender may deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions.

Question 10

With his or her consent obtained by duress

Answer 10

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 11

R v Mohi

Answer 11

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 12

Marry

Answer 12

In this context, the term “to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955

Question 13

With Intent to hold him or her for ransom

Answer 13

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

Question 14

With Intent to hold him or her to service

Answer 14

This provision relates to situations where the offenders intent is to keep the victim as a servant or slave.

Question 15

With Intent to cause him or her to be confined

Answer 15

“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.

Question 16

With Intent to cause him or her to be imprisoned.

Answer 16

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

Question 17

Sent

Answer 17

The offenders intent is for the victim to leave the country.

Question 18

Taken

Answer 18

The victim is in the company or custody of a person accompanying them out of New Zealand.

Question 19

Forrest and Forrest

Answer 19

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.

Question 20

Young person

Answer 20

In this section a young person means a person under the age of 16

Question 21

Entice

Answer 21

To entice means to tempt, persuade, or attract by arousing hope or desire.

Question 22

Receives a young person

Answer 22

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.

Question 23

Section 209A Crimes Act 1961

Young person under 16 cannot consent to being taken aware or detained.

Answer 23

For the purposes of sections 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.

Question 24

Section 210(3)(a) Crimes Act 1961

Answer 24

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.

Question 25

Belief that person was over 16 is no defence

Answer 25

Mistake as to age is no defence.

Question 26

Section 210(3)(b), Crimes Act 1961

Answer 26

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

Question 27

Section 127, Crimes Act 1961

No presumption because of age

Answer 27

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 28

Good faith defence

Answer 28

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.

Question 29

Abduction for purposes of marriage or civil union or sexual connection liability

Answer 29

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.

Question 30

Kidnapping liability

Answer 30

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

Question 31

Abduction of young person under 16

Answer 31

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.

Question 32

What must be proved for a conviction under s208.

Answer 32

• 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.

Question 33

Consent

Answer 33

Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 34

R v Waaka

Answer 34

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 35

Cause him or her to marry another person.

Answer 35

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.

Question 36

R v M

Answer 36

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 37

What must be proved for a conviction under s210(1)

Answer 37

1. The defendant took, enticed or detained a person under the age of 16 years.
2. The taking, enticement or detention was deliberate or intentional.
3. The taking, enticement or detention was from a person who had lawful care of the young person.
4. The defendant knew the other person had lawful care of the young person.
5. The taking, enticement or detention was ‘unlawful’.
6. 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.

Question 38

What must be proved for a conviction under 210(2)

Answer 38

1. The defendant received a person under the age of 16 years.
2. The receiving was deliberate or intentional.
3. 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.
4. 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.

Question 39

Intent - Section 210(1)

Answer 39

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.

Question 40

Intent - Section 210(2)

Answer 40

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.

Question 41

Can a young person consent to being taken away for the purpose of sections 209 to 210 Crimes Act 1961?

Answer 41

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.