Abduction / kidnapping

Question 1

Section 208, Crimes Act 1961

Abduction for purpose of marriage / civil union / sexual connection

Answer 1

(1) Unlawfully
(2) Takes away or detains
(3) A person
(4) Without that person’s consent or with that person’s consent obtained by fraud or duress
(a) with intent to go through a form of marriage or civil union with that person
(b) with intent to have sexual connection with that person
(c) with intent to cause that person to go through a form of marriage or civil union, or to have a sexual connection, with some other person

Question 2

What must be proved under s208

Answer 2

(1) Defendant took away or detained a person
(2) Taking/detention was intentional
(3) Taking/detention was unlawful
(4) Taking/detention was without that person’s consent (or with consent obtained by fraud or duress)
(5) Defendant knew there was no consent
(6) Defendant intended to:
- Go through a form of marriage or civil union with the person taken / detained
- Have sexual connection with the person taken / detained
- Cause the person taken or detained to go through a form of marriage or civil union to another person or to have sexual connection with some other person

Question 3

Unlawfully

Answer 3

Without lawful justification, authority or excuse

generally shown through offender’s actions

Question 4

Taking away

Answer 4

Victim is physically removed from one place to another

Question 5

Detains

Answer 5

Involves doing something to impose a constraint or restraint on the person detained

Question 6

Consent

Answer 6

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

Question 7

Consent obtained by fraud

Answer 7

Deceiving the victim into agreeing to a proposition by misrepresenting the facts or their intentions

Question 8

Consent obtained by duress

Answer 8

Consent obtained based on victim’s fear of the consequences if they refuse.

The critical question is whether the threats, pressure etc is such to destroy the reality of consent and overbears the will of the individual

Question 9

Intent - abduction

Answer 9

Do not need to prove that the intent occurred or attempted. Only need to prove that they had the necessary intent at the time of the taking away/detention.

The offender’s intent need not be specific at the time the victim is detained and may be formed later in the course of the offending

Question 10

Section 209, Crimes Act 1961

Kidnapping

Answer 10

(1) Unlawfully
(2) Takes away or detains
(3) A person
(4) Without his or her consent or with his or her consent obtained by fraud or duress -
(a) with intent to hold him or her for ransom or to service
(b) with intent to cause him or her to be confined or imprisoned
(c) with intent to cause him or her to be sent or taken out of NZ

Question 11

What must be proved under s209

Answer 11

(1) Defendant took away / detained a person
(2) Taking / detention was intentional
(3) Taking / detention was unlawful
(4) Taking was done without that person’s consent (or with consent obtained by fraud / duress)
(5) Defendant knew that there was no consent
(6) Defendant intended to:
- Hold the person for ransom / to service
- Cause the person to be confined / imprisoned
- Cause the person to be sent or taken out of NZ

Question 12

Ransom

Answer 12

Ransom is a sum of money demanded or paid for the release of a person being held captive

Question 13

Service

Answer 13

To keep as a servant or slave

Question 14

Confined

Answer 14

Restricting their movements to within a geographical area and exercising control and influence over them

Question 15

Imprisoned

Answer 15

Put them in prison or confine them as if they were in prison e.g. locked in a room, inside the boot of a car

Question 16

Taken out of NZ

Answer 16

Implies that the victim is in the company or custody of a person accompanying them out of NZ

Question 17

Section 210(1), Crimes Act 1961
(Abduction of a young person under 16)

Answer 17

(1) 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
(2) Unlawfully
(3) Takes or entices away or detains
(4) The young person

Question 18

Section 210(2), Crimes Act
(Abduction of a young person under 16)

Answer 18

(1) Receives a young person
(2) Knowing that he or she has been unlawfully taken or enticed away or detained
(3) With intent to deprive a parent or guardian or other person having the lawful care of charge of him or her of the possession of him or her

Question 19

Section 210(3), Crimes Act 1961

Answer 19

(1) It is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion, and
(2) it is immaterial whether the offender believes the young person to be of or over the age of 16

Question 20

What must be proven under s210

Answer 20

(1) Defendant took, enticed or detained a person under the age of 16
(2) Taking, enticing or detaining was intentional
(3) Taking, enticing or detaining was from a person who had lawful care or charge of the young person
(4) Defendant knew the other person had lawful care of charge of the young person
(5) Taking, enticement or detention was unlawful
(6) It was done with intent to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that young person

Question 21

What must be proven under s210(1)

Answer 21

(1) Defendant took, enticed or detained a person under the age of 16
(2) Taking, enticing or detaining was intentional
(3) Taking, enticing or detaining was from a person who had lawful care or charge of the young person
(4) Defendant knew the other person had lawful care of charge of the young person
(5) Taking, enticement or detention was unlawful
(6) It was done with intent to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that young person

Question 22

What must be proven under s210(2)

Answer 22

(1) Defendant received a person under the age of 16
(2) Receiving was intentional
(3) 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 the young person of possession of that young person
(4) Defendant intended by reason of receiving to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that young person

Question 23

What are the two intents under s210(1)

Answer 23

(1) Intention to take, entice away of detain a young person

(2) Intention to deprive the parent or other specified person of the possession of the child

Question 24

Person having lawful care or charge

Answer 24

Offence against the custodial rights of the parents or guardian.

Depriving a parent of possession may not be the offender’s primary intention, however if the offender knows their actions will inevitably cause that outcome, then depriving the parent can also be said to be intentional

Question 25

Proof of age

Answer 25

The prosecution must prove the victim’s age at the time of the alleged offence. In practice, this generally involves producing the victim’s birth certificate in conjunction with independent evidence (i.e. parent giving evidence of child’s age)

Question 26

Possession

Answer 26

R v Cox. Physical and mental elements must be proved to satisfy possession.

Physical - actual or potential custody or control over the item (person)

Mental - combination of both knowledge and intent. Knowledge that the person possesses the item (person) in question and an intention to possess the item (person)

Question 27

Entice

Answer 27

Tempt, persuade or attract by arousing hope or desire

Question 28

Receives (young person)

Answer 28

Receiving physical custody of the young person

Question 29

Knowing

Answer 29

Knowing or correctly believing

The offender must know that the young person they are receiving has been abducted

Question 30

Statutory defence of good faith (section 210A, Crimes Act 1961)

Answer 30

A person who claims in good faith a right to the possession of a young person under the age of 16yrs cannot be convicted of an offence under section 209 or 210 because he or she gets possession of the young person.

It lies with the prosecution to negate ‘claim of right’ beyond reasonable doubt

Question 31

No presumption of law because of age - Section 127, Crimes Act 1961

Answer 31

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