Abduction / Kidnapping

Question 1

Abduction for purposes of marriage or civil union or sexual connection
S208 CA61
- ingredients

Answer 1

1. Unlawfully
2. Takes away OR Detains
3. A person
4. Without their consent OR with consent obtained by fraud or duress
5. 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 2

Kidnapping
S209 CA61
- ingredients

Answer 2

1. Unlawfully
2. Takes away OR Detains
3. A person
4. Without their consent OR with consent obtained by fraud or duress
5. With intent to
   a) hold him/her for ransom or to service, OR
   b) cause him/her to be confined or imprisoned, OR
   c) cause him/her to be sent or taken out of New Zealand

Question 3

Abduction of young person under 16

S210 (1) CA61

Answer 3

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,
takes or entices away or detains,
the young person.

Question 4

Abduction of young person under 16

S210 (2) CA61

Answer 4

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 5

Unlawfully

- definition

Answer 5

Without lawful justification or excuse

Question 6

Taking away

- definition

Answer 6

Taken away from where they want to be

“The deprivation of liberty coupled with a carting away from the place where the victim wants to be.” - R V WELLARD

Question 7

Detains

- definition

Answer 7

Detaining is an active concept that involves imposing a constraint or restraint on the person detained.
There is no minimum period for which a person’s freedom must be curtailed before they are deems to be ‘detained’

“Detains is an active concept meaning to keep in confinement or custody. As opposed to the passive concept of ‘harbouring’ or mere failure to hand over.” - R V PRYCE

Question 8

Person

- definition

Answer 8

A person is generally accepted by judicial notice or proved by circumstantial evidence.

Question 9

Consent

- definition

Answer 9

A person’s conscious and voluntary agreement to something desired or proposed by another.

Consent may be conveyed by words, conduct or both.

“Consent must be full, voluntary, free and informed given by a person in a position to form a rational judgment.” - R V COX

Question 10

Consent obtained by fraud

- definition

Answer 10

The offender deceives the victim into agreeing to a proposition by misrepresenting the facts or their intentions.

Question 11

Consent obtained by duress

- definition

Answer 11

Consent based on the fear of the consequences if they refuse.

May be actual or implied threat of force to the victim or another person.

The critical question is whether the threats, pressure or coercion are such that they destroy the reality of consent and overbear the will of the victim.

Question 12

Intent

- definition

Answer 12

A deliberate act to produce a specific result.

Question 13

Proving Intent

Answer 13

Circumstantial evidence from which an offenders intent can be inferred can include:

• Actions and words before, during and after the event
• The surrounding circumstances
• The nature of the act itself

Question 14

Intent in abduction cases

Answer 14

It is not necessary to prove that the intended actions actually occurred or were even attempted.

The offence is complete as soon as the offender detains the victim with one of the specified intents.

“The offence is committed at the time of taking away as long as at that moment there is the necessary intent. It has never been regarded as necessary to prove the intent was carried out.” - R V MOHI

Question 15

Marriage

- definition

Answer 15

The union of 2 people, regardless of their sex, sexual orientation, or gender identity

Question 16

Sexual Connection

- definition

Answer 16

a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of
- a part of the body of another person; or
- an object held or manipulated by another person;
or
b) Connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
c) The continuation of connection of a kind described above

Question 17

Ransom

- definition

Answer 17

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

Question 18

To Service

- definition

Answer 18

Intent to keep the person as a servant or slave.

Question 19

To Be Confined

- definition

Answer 19

Restricting a person’s movements within a geographical area.

But mean more than to curtail their activity and exercise control and influence over them.

Question 20

To Be Imprisoned

- definition

Answer 20

To put a person in prison, or to confine them as if in prison.
Foe example locked in a room or car boot.

It has a narrower meaning than to “confine”.

Question 21

To be sent or taken out of New Zealand

- definition

Answer 21

Sent - intent is for the victim to leave NZ alone.

Taken - suggests that the victim is in the company or custody of another person accompanying them.

Question 22

Proof of Age

- definition

Answer 22

For certain offences the victim’s age at the time of the offence must be proved.

Generally this involves producing the victims birth certificate together with independent evidence that identifies the victim as the person named in the certificate.
For example the parent if possible.

“The best evidence possible in the circumstances should be adduced in proof of the victims age.” - R V FORREST AND FORREST

Question 23

Young person

- definition

Answer 23

A person under the age of 16 years.

Question 24

Possession

- definition

Answer 24

Both a physical and mental element are required.
Physical = physical custody or control of the item.
Mental = knowledge they possess the item and intention to possess the item.

“Possession involves two elements.
The first is called the physical element, is actual or potential physical custody or control.
The second is the mental element, and is a combination of knowledge they have possession and intention to exercise possession.” - R V COX

Question 25

Consent as a defence

Answer 25

Consent is not a defence under S208 - 210 when the person taken is under the age of 16 years.

S209A CA61- A young person cannot consent to being taken away or detained.

S210(3)(a) CA61- For the purpose of subsections (1) and (2), It is immaterial if the young person consents, or is taken, or goes, or is received at their own suggestion.

Question 26

Belief the person was over 16 as a defence

Answer 26

Mistake to age is no defence.

S210(3)(b) CA61 - For the purpose of subsections (1) and (2), it is immaterial whether the offender believes the young person to be of or over the age of 16.

Question 27

Presumption because of age

Answer 27

S127 CA61 - There is no presumption of law that a person is incapable of sexual intercourse because of their age.

Question 28

To deprive a parent, guardian or other person with lawful care or charge of a young person.
- considerations

Answer 28

• It is not an offence against the young person, but rather against the custodial rights of the parent or guardian.
• A parent may commit an offence in respect to their own child if their actions are unlawful, for example, contrary to a court order.
• Depriving the parent of possession may not be the primary intention but if they know that their actions will cause that outcome it can also be considered intentional.
• The length of possession is not relevant and it is not necessary that the offender intended to permanently deprive.

Question 29

Good Faith Defence

S210A CA61

Answer 29

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 under S209 or S210 because he or she gets possession of the young person.

Question 30

What is the Case Law relevant to Abduction and Kidnapping?

Answer 30

Takes away and Detains = R V Crossan
Takes Away = R V Wellard
Detains = R V Pryce

Consent = R V Cox

With intent to = R V Mohi

Question 31

What is the Case Law relevant to Abduction of a Young Person?

Answer 31

Intent to deprive = R V Chartrand
Possession = R V Cox

Proof of age = R V Forrest and Forrest

Knowledge = Simester and Brookbanks