Abduction/Kidnapping Flashcards
Meaning of unlawful
Without justification or excuse
R v Crossan
Taking away and detaining are two separate and distinct offences
Taking away definition
Situations where the victim is physically removed from one place to another.
R v Wellard
The essence of kidnapping is the deprivation of liberty coupled with a carrying away from the place where the victim wants to be
Detaining definition
An active concept rather than a passive one
Doing something to inlay a constraint or restraint.
Mere delay for a short or trifling period is not sufficient.
What her or not a person has been detained will be a question of fact and degree
Consent definition
Consent is a persons concious and voluntary agreement to something desired or proposed by another
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 judgement
Consent obtained by fraud definition
Deceive the victim into agreeing to a proposition by misrepresenting facts or intentions
Consent obtained by duress definition
Victim agrees to offenders demands based on fear of consequences if they refuse
Can arise from actual or implied threat
Can include pressure or coercion
What is the critical question in relation to duress?
Whether the threats pressure or coercion are such that they destroy the reality of consent and overbearing the will of the individual
R v Collister
Circumstantial evidence from which an offenders intent can be inferred
Offenders actions words before during after event
Surrounding circumstances
Nature of the act
Intent in abduction cases
Marriage and sexual connection appear only as matters of intent, and it is not necessary to prove that they actually occurred or were even attempted.
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 for the crown to show that intent was carried out.
To marry definition
Engage in marriage solemnised in accordance with the marriage act.
Expanded to include civil union
Ransom definition
Sum of money demanded it laid for the release of a person being held captive
Intent to hold him or her service definition
Keep the victim as a servant or a slave
Confining definition
Can include restricting their movement to within a geographical area
Includes curtailing their activity and exercising control and influence over them
Imprison definition
To put them in jail , or confine as if they were in prison
Narrower definition than confine
Who is abduction of a young person an offence against?
Offence against the custodial rights of the parent or guardian
Definition of a young person
A person under the age of 16
R v Forrest and Forrest
The best evidence passive in the circumstances should be adduced by the prosecution in proof of the persons age
Entice definition
Means to tempt, persuade, or attract by a rousing hope or desire
Simester and Brookbanks definition of knowing:
Means knowing or correctly believing.
The defendant may believe something wrongly, but cannot know something that is false.
When is consent not a defence?
Section 209A: Consent is no defence on charges under sections 208-210 when the person taken is under the age of 16 years
Section 210(3): for the purposes of subsections 1 and 2, it is immaterial whether the offender believes the young person to be of or over the age of 16.
No presumption because of age.
Good faith defence
Defence against kidnapping:
A person who claims in good faith to a right of possession if the young person ages under 26 cannot be charged of offence against 209 or 210.
Abduction liability
s208 CA 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 with a form of marriage or civil union
-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
s209 CA 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 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 NZ
Abduction of young person liability
s210(1) CA 1961
With intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person
Unlawfully
Take OR entices OR detains
The young person
Abduction of young person under 16(2)
s 210(2)
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 the possession of him or her
R v Chartrand
Whether or not the defendant had an innocent motive, or intended to interfere with possession, is beside the point
