Abduction / Kidnapping Flashcards
Taking away and detaining are two seperate and distinct acts.
Outline the difference and the relevant case law that applies
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.
Detail the element of Kidnapping as well as section and act ?
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
What are the three intent required in relations to Abduction ?
(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.
What is the section and act for Abduction ?
S208
CA1961
What is the definition for unlawfully ?
Without lawful justification or excuse
What case law can you consider for element Taking Away ?
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’
What case law can you consider for the element detains ?
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.
What is the definition of the element of ‘a person’ ?
The fact the Victim is a person is generally accepted by judicial notice or prove by circumstance evidence.
Definition of consent ?
A persons conscious and voluntary agreement to something desired or proposed by another
In the case of Abduction, what was held in R v Cox
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.
Define of ‘fraud’
Victim being deceived into the agreement to a proposition by misrepresenting the facts or intentions
Duress
Threats, pressure or coercion, over bearing will.
In relations to abduction, s208 what was held in R v Mohi ?
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.
Define Ransom
A ransom is money demanded or paid for the release of a person being held captive
R v Mohi
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.
Detail the element for abduction of young person under 16 S210(1) CA1961?
- 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
Detail the elements of ‘Abduction of young person under 16 S201(2) CA1961 ?
- 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
What is the difference between Sent and Taken in regard to Kidnapping ?
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
Define Young Person and what case Law R v Forest v Forest ?
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
Good Faith Defence - 210A CA1961
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.
