Abduction & kidnapping Flashcards
Define “Taking away”
Physically removed from one place to another.
Deprivation of liberty coupled with the carrying away from a place where the victim wants to be. (R v Wellard)
Define “Detains”
Detaining is an active concept. Doing something to impose constraint or restraint.
Detaining is an active concept meaning to keep in “confinement and custody.” this is to be contrasted to the passive concept of “harbouring” or the mere failure to hand over. (R v Pryce)
Kidnapping Ingredients
Kidnapping s209 CA61
Unlawfully
Takes away or Detains
A person
Without his or her consent or With his or her consent obtained by fraud or duress
With intent to -
Hold him/her for Ransom or to Service
Cause him/her to be Imprisoned or Confined
Cause him/her to be Sent or Taken out of NZ
What are the three intents for Abduction
With intent to:
- Marry him/her
- Have sexual connection with him/her
- Cause him/her to be married to OR Cause him/her to have sexual connection with some other person.
What is s209A?
A person under the age of 16 cannot consent to being taken away or detained
R v Wellard
Kidnapping is the deprivation of liberty coupled with a carrying away from the place where the victim wants to be
Define “Consent”
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
Define R v Cox (consent)
Consent must be freely and voluntarily given by a person in a position to form a rational judgement
What is R v Mohi in relation to intent?
The offence is committed at the time of the taking away, so long as there is, at that moment, the necessary intent
What are the three intents of kidnapping?
- Intent to hold him/her for ransom or service
- Intent to cause him/her to be confined/imprisoned
- Intent to cause him/her to be sent/taken from New Zealand
Is the Consent of a young person a defence for the charge of Abduction or Kidnapping?
Consent is not a defence for charges under 208-210 when the person taken is under 16.
As per s 209A, CA61, a person under the age of 16 cannot consent to being taken away or detained
R v Cox
Two elements.
Physical element of actual or potential custody or control. Mental element being knowledge of the possession and intention to keep possession.
R v Pryce
Detaining is an active concept meaning to keep in “confinement and custody.” this is to be contrasted to the passive concept of “harbouring” or the mere failure to hand over.
Define Section 210A, CA61
“Good Faith” defence.
When someone believes they have a right to that child. i.e Custody matters
R v Mohi
The offence is committed at the time of the taking away, so long as there is at that moment, the necessary intent…it is not necessary for the down should show the intent was carried out.
R v Crossan
“Taking away” and “Detains”are two seperate and distinct offences. The first offence was taking away; the second of detaining her.
R v Forrest & Forrest
The best evidence possible in the circumstances should be adduced (cited as evidence) by the prosecution in proof of the [the victims] age.
Define “Possession”
Two elements.
Physical element of actual or potential custody or control. Mental element being knowledge of the possession and intention to keep possession. R v Cox
How do we prove age?
The best evidence possible in the circumstances should be adduced (cited as eividence) by the prosecution in proof of the [the victims] age.
How do we prove “intent”
- The offenders actions before, during and after the event.
- The surrounding circumstances.
- The nature of the act itself.
The defendants intent can be inferred from the circumstances. R v Collister
When is kidnapping/abduction complete
The offence is committed at the time of the taking away, so long as there is at that moment, the necessary intent…it is not necessary for the down should show the intent was carried out.
‘Cause to be married’
The abducter ‘takes’ away or ‘detains’ a victim to enable another person to marry them I.e arranged marriage.
Define ‘intent’
Two types of intention in an offence.
- Intention to commit a specific act.
- Get a specific result.
The defendants intent can be inferred from the circumstances. R v Wellard.
‘Consent by ‘duress’
Consent obtained by actual or implied threat of force to the victim or another person. Can include any form of coercion.
Consent by ‘fraud’
Consent obtained by the misrepresentation of the facts or the offenders intentions.
‘Unlawfully’
Without lawful justification or excuse.
Abduction ingredients
Abduction Sec 208 (c) CA61
- Unlawfully
- Takes OR Detains
- A person
- Without his/her consent OR with his/her consent obtained by fraud or duress
5 with intent to:
(a) Marry him/her
(b) have sexual connection with him/her
(c). cause him/her to be married to OR cause him/her to have sexual connection with some other person.
