Abduction/Kidnapping Flashcards
R v Pryce
Detaining is an active concept meaning to “keep in confinement or custody”
R v Crossan
TAKES AWAY / DETAINS
Taking away and detaining are two separate and distinct defences
Define TAKING AWAY
The victim is physically removed from one place to another
Define DETAINS
Doing something to impose a constraint or restraint
R v Mohi
TAKING AWAY
Offence is completed at the time of taking away, so long as there was a necessary intent at the time.
Define UNLAWFULLY
Without lawful justification, authority or excuse
R v Cox (re consent)
Consent must be full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgement
Define CONSENT
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another
Define OBTAINED BY FRAUD
Deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions
Define OBTAINED BY DURESS
From actual or implied threat of force or other pressure/coercion.
A victim may “acquiesce to an offenders demands based on fear of the consequences if they refuse”
CRITICAL QUESTION: whether threats/pressure/coercion are such that they destroy the reality of consent and overbear the will of the individual
R v Wellard
(Relevant to all abduction/kidnapping offences)
The essence of the offence is the deprivation of liberty coupled with a carrying away from the place the victim wants to be
Define: …with intent to have SEXUAL CONNECTION with the person
Sexual connection in this context:
connection effected by the introduction into genitalia/anus otherwise than for genuine medical purposes of a part of the body or object held/manipulated…
Define RANSOM
A sum of money demanded or paid for the release of a person being held captive
Define CONFINED/IMPRISONED
Confined: restricting movements to within a geographical area… exercising control and influence…”
Imprisoned: put them in prison or to confine them as if in prison
210 Abduction of a young person
How old is a young person?
Under 16 years old
R v Forrest & Forrest!
R v Cox (re possession)
Possession involves 2 elements:
Physical: actual or potential physical custody or control
Mental: knowledge of it AND an intention to exercise possession
Define ENTICES AWAY
To tempt, persuade, or attract by arousing hope or desire
What is the good faith defence?
A person who claims in good faith a right to the possession of a YP cannot be convicted of 210 Abduction.
Can a young person consent to being taken away?
NO!
The abductor was mistaken about the YP’s age… thought she was 18 etc… is this a defence?
NO
R v Forrest & Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in the victim’s age.
What section is ABDUCTION?
Section 208, crimes act 1961
What section is Kidnapping?
Section 209, crimes act 1961
Elements of ABDUCTION?
- unlawfully
- takes away/detains
- a person
- without their consent/with consent obtained by fraud/duress
- with intent to
a) go through a form of marriage/civil union
b) have sexual connection with the P
c) cause the P to go through a or b with some other person
Elements of Kidnapping? S209
- unlawfully
- takes away/detains
- a person
- without their consent/with consent obtained by fraud/duress
- with intent to
a) hold him/her for ransom/service
b) cause him/her to be confined/imprisoned
c) cause him/her to be sent/taken out of NZ
Elements of 210 Abduction of a YP
- with intent to deprive a (parent/guardian/other P having lawful care/charge)
- of the possession of a YP
- unlawfully (takes away/entices away/detains)
- the YP
