Abduction / Kidnapping

Question 1

Taking away and detaining are two seperate and distinct acts.

Outline the difference and the relevant case law that applies

Answer 1

Taking away and Detaining are two separate and distinct acts giving rise to two different offences and the prosecution should specify which of the acts is being alleged. Where there is evidence of both taking away and detaining, two charges should be laid.

R v Crossan
Taking away and detaining are separate and distinct offences.
The first consist of taking away and 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.

Question 2

Detail the element of Kidnapping as well as section and act ?

Answer 2

S209
CA1961

Unlawfully

Takes away OR details

A person

Without consent OR With consent obtained by fraud or obtained by duress

With intent to
(A) hold her or him for Ransom or to Services
(B) cause him or her to be Confined or Imprisoned
(C) cause him or her to be Sent or Taken out of New Zealand

Question 3

What are the three intent required in relations to Abduction ?

Answer 3

(A) with intent to go through 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.

Question 4

What is the section and act for Abduction ?

Answer 4

S208

CA1961

Question 5

What is the definition for unlawfully ?

Answer 5

Without lawful justification or excuse

Question 6

What case law can you consider for element Taking Away ?

Answer 6

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’

Question 7

What case law can you consider for the element detains ?

Answer 7

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 ‘harbouring’ or mere failure to hand over.

Question 8

What is the definition of the element of ‘a person’ ?

Answer 8

The fact the Victim is a person is generally accepted by judicial notice or prove by circumstance evidence.

Question 9

Definition of consent ?

Answer 9

A persons conscious and voluntary agreement to something desired or proposed by another

Question 10

In the case of Abduction, what was held in R v Cox

Answer 10

R v Cox

Consent must be 
Full 
Voluntary 
Free and 
Informed 

Freely and Voluntary given by the person in a position to form a rational judgment.

Question 11

Define of ‘fraud’

Answer 11

Victim being deceived into the agreement to a proposition by misrepresenting the facts or intentions

Question 12

Duress

Answer 12

Threats, pressure or coercion, over bearing will.

Question 13

In relations to abduction, s208 what was held in R v Mohi ?

Answer 13

R v Mohi

Offence is committed at the time of the taking away, so long as there is, at that time of the taking away the necessary intent.

Crown does not need to show that the intent was carried out.

Question 14

Define Ransom

Answer 14

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

Question 15

R v Mohi

Answer 15

The offence is committed at the time of taking away, so long as, at that moment, the necessary intent.

It have never been regarded as necessary … that the Crown should show the intent was carried out.

Question 16

Detail the element for abduction of young person under 16 S210(1) CA1961?

Answer 16

- With intent to deprive 
A parent 
A 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 17

Detail the elements of ‘Abduction of young person under 16 S201(2) CA1961 ?

Answer 17

• 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 of him of her of the possession of him or her

Question 18

What is the difference between Sent and Taken in regard to Kidnapping ?

Answer 18

Sent - may include situation where the Victim leaves on their own out of New Zealand perhaps as the result of a threat or other form of duress

Taken - Victim is in the company or custody of people accompanying them out of New Zealand

Question 19

Define Young Person and what case Law R v Forest v Forest ?

Answer 19

Young person means under the age of 16

R v Forest v Forest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of (the Victim’s) age

Question 20

Good Faith Defence - 210A CA1961

Answer 20

People claiming in good faith right to possession of young person under 16 …

It lies with the Prosecution to negate good faith beyond reasonable doubt.

Needs to be shown beyond reasonable doubt the Defendant did not believe in good faith that he or she was so entitled.