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DDP - Violence Offences > Abduction/Kidnapping > Flashcards

Abduction/Kidnapping Flashcards

1
Q

What is the legislation for Abduction (s208)?

A
  1. Everyone is liable to a term of imprisonment for 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress, -
    a. With intent to marry him or her; or
    b. With intent to have sexual connection with him or her; or
    c. With intent to cause him or her to be married or to have sexual connection with some other person.
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2
Q

what are the elements of abduction?

A
  • Unlawfully
  • Takes away or detains
  • A person without their consent, or with consent obtained by fraud or duress
  • With intent to marry him/her, have sexual connection with him/her, with intent to cause to be married or have sexual connection with some other person.
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3
Q

What is the definition of unlawfully?

A

without lawful justification, authority or excuse.

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4
Q

What is held regarding taking away vs detaining? What is the case law?

A

(R v Crossnan)
Taking away and detaining are separate and distinct offences. The first consists of taking the victim away and the second of detaining her.

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5
Q

How can taking away be defined?

A

generally refers to situations where the victim is physically removed from one place to another.

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6
Q

What is the case law regarding taking away?

A

(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.

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7
Q

What is the case law regarding detaining?

A

(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.

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8
Q

What is the case law regarding consent?

A

(R v Cox)
Consent must be “full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgement.”

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9
Q

When is the offence of taking/abduction complete? What is the case law?

A

(R v Mohi)
The offence is complete once there has been a period of detention or a taking accompanied by the necessary intent, regardless of whether that intent was carried out.

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10
Q

What is the case law regarding intent for taking away?

A

(R v Waaka)
Intent may be formed at any time during the taking away. If a taking away commences without the intent to have intercourse, but that intent is formed during the taking away, then that is sufficient for the purposes of the section.

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11
Q

What must be proved for kidnapping? What is the case law?

A

(R v M)
The Crown must prove that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting.

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12
Q

What is the definition of ransom?

A

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

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13
Q

What is the definition of confined vs imprison?

A

Confined – “confining” a person can include restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them.

Imprison – means to put a person in a prison, or to confine them as if in a prison.

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14
Q

What is the legislation for kidnapping (s209)?

A
  1. Everyone is liable to a term of imprisonment of 14 years who unlawfully takes away or detains a person 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; or
    b. With intent to cause him or her to be confined or imprisoned; or
    c. With intent to cause him or her to be sent or taken out of NZ.
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15
Q

what are the elements of kidnapping?

A
  • Unlawfully
  • Takes away or detains
  • A person without their consent, or with consent obtained by fraud or duress
  • With intent to hold him/her for random or to service, with intent to cause him/her to be confined or imprisoned, with intent to cause him/her to be sent or taken out of NZ
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16
Q

what is the legislation for Abduction of a YP Under 16 (s210)?

A
  1. Everyone is liable to a term of imprisonment of 7 years who, 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, unlawfully takes away or entices away or detains the young person.
  2. Everyone who 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 or charge of him or her of the possession of him or her.
17
Q

What is the case law regarding proof of age?

A

(R v Forrest and Forrest)

The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victims] age.

18
Q

What are not defences for abduction of a YP?

A

consent is not a defence as a person under 16 cannot consent to being taken away or detained.

Belief that person is over 16 – it is immaterial whether the offender believes the YP to be of or over 16.

19
Q

What is a defence for abduction of a YP?

A

Defence of good faith – a person who claims in good faith to a right of possession of a YP cannot be convicted. It is up the prosecution to negate good faith beyond reasonable doubt.

20
Q

How would you define migrant smuggling and people trafficking?

A

Migrant smuggling – involves a person who has freely consented to be brought into NZ as an illegal immigrant and is not subjected to coercion or deception.

People trafficking – involves a person who is brought into NZ by means of coercion and/or deception. People are often trafficked in order to exploit them in the destination country.

21
Q

What are the differences between migrant smuggling and people trafficking?

A

consent, the purpose of the travel or movement, the relationship between the person moved and the people enabling movement, violence, intimidation or coercion, liberty, profit.

22
Q

What are the different investigative approaches for migrant smuggling and people trafficking?

A
  • Reactive investigation – victim led and often initiated by an approach to Police.
  • Proactive investigation – Police led using investigation techniques to identify traffickers and instigate proceedings.
  • Disruptive investigation – appropriate where the level of risk to the victim demands an immediate response.
23
Q

What are the penalties for migrant smuggling and people trafficking?

A

20 years imprisonment, a $500,000 fine or both

24
Q

Is Governor General approval required for offences under s98C and s98D?

A

approval is required from the Governor General to prosecute for offences under sections 98C and 98D but do not need approval to arrest and oppose bail.

25
Q

What is the definition of consent?

A

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

26
Q

What are the elements of s210(1)?

A
  • 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
  • Unlawfully takes away, entices or detains
  • The young person
27
Q

What are the elements of s210(2)?

A
  • Receives a young person
  • Knowing that he/she has been unlawfully taken, entice away or detained
  • With intent to deprive a parent or guardian, having the lawful care or charge of him/her, of the possession of him/her
28
Q

What is the definition of service?

A

Hold as a servant or slave

29
Q

What is the definition of obtain consent by fraud vs duress?

A

Fraud - consent obtained by the misrepresentation of the facts or the offenders intentions

Duress - consent obtained by actual or implied threat of force to the victim or another person

30
Q

What is the definition of sexual connection?

A

Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of

1) a part of the body of another person or
2) an object held or manipulated by another person or
3) connection between the mouth or tongue of one person and a part of another persons genitalia or anus or
4) the continuation of connection of a kind

DDP - Violence Offences (4 decks)

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