Abduction / Kidnapping Definitions

Question 1

Unlawfully

Answer 1

Without lawful justification, or excuse.

Question 2

Takes Away or Detains

(R v Crosson)

Answer 2

R V CROSSAN

Taking away and detaining are separate and distinct offences.

The first consists of taking the victim away, the second of detaining them.

Question 3

Takes Away

Answer 3

Physically removed from one place to another.

R V WELLARD

The essence of the offence of kidnapping is the “deprivation of liberty coupled with carrying away from the place where the victim wants to be”.

Question 4

Detains (case law)

Answer 4

R V PRYCE

Detaining is an active concept meaning to “keep in confinement or custody”. This is contrasted to the passive concept of “harbouring” or mere failure to hand over.

Question 5

Consent

Answer 5

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.

Question 6

To obtain consent by fraud

Answer 6

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

Question 7

To obtain consent by duress

Answer 7

Acquiesce to an offender’s demands based on fear of the consequences if they refuse.

Duress may arise from the actual or implied threat of force to the victim or another person, but can also include other forms of pressure or coercion.

Question 8

Entices

Answer 8

To tempt, persuade, or attract by arousing hope or desire

Question 9

Intent, two types

Answer 9

An intention to commit the act with an intention to bring about a specific outcome

Question 10

R V MOHI

Answer 10

The offence is committed at the time of the taking away, so long as there is, at that moment, the necessary intent. It has never regarded as necessary …. that the intent is carried out.

Question 11

Marry

Answer 11

Engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.

Question 12

Sexual Connection

Answer 12

a) connection effected by the introduction into the genitalia or anus of one person (otherwise than for genuine medical purposes) of
- a part of the body of another person
- an object manipulated by another person
b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus
c) the continuation of connection in a kind described

Question 13

Ransom

Answer 13

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

Question 14

Service

Answer 14

to keep as a servant or slave.

Question 15

Confined

Answer 15

Restricting their movements to within a geographical area but also means curtailing their activity and exercising control and influence over them.

Question 16

Imprisoned

Answer 16

To put or confine a person as if they are in prison. This has a narrower meaning than ‘confine’.

Question 17

R v Cox

(Lots and lots of Cox!)

Answer 17

Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment Application: consent

Question 18

R v Forrest and Forrest

(Forest, trees, paper)

Answer 18

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age Application: proving age

Question 19

R v Wellard

(It’s ‘well hard’ to carry a person away)

Answer 19

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”.

Application: kidnapping (takes away)

Question 20

R v Pryce (Pryce - price - $$$ = ransom)

Answer 20

Detaining is an active concept meaning to “keep in confinement or custody”. This is to be contrasted with the passive concept of “harbouring” or mere failure to hand over.

Application: kidnapping (detains)

Question 21

R v Mohi

(Mohi - Mohair - from an Angoran goat - intends to shave the goat for the mohair at the time of taking him away)

Answer 21

The offence is committed at the time of the taking away, so long as there is, at that moment, the necessary intent. It has never been regarded as necessary … that the Crown should show the intent was carried out.

Application: kidnapping/abduction - offence complete

Question 22

R v Chartrand

(He sharted and ran when he was busted for abduction)

Answer 22

“Whether the defendant may have had an innocent motive, or intended to interfere with possession for a very short time is beside the point”. Application: abduction (young person)

Question 23

R v Cox

(Coxen in a rowing 8 - think of a coxen in a rowing 8 - steroids for the team are in the back but he knows where they are - they’re under his control and he has an intention to dish them out to the team before the race)

Answer 23

Possession involves two … elements.

The first, often called the physical element, is actual or potential physical custody or control.

The second, often described as the mental element … is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession … and an intention to exercise possession.

Application: possession

Question 24

What is the statutory defence to possession of a young person

Answer 24

S210A - People claiming in good faith right to possession of a young person under 16

Question 25

List other miscellaneous provisions regarding abduction of YP under 16

Answer 25

S209A - U16 cannot consent to being taken away or detained

S210(3)(b) - Belief that person over 16 is no defence

S127 - No presumption because of age

Question 26

What is the crictical question regarding duress?

Answer 26

Whether the threats, pressure, or coercion are such that they destroy the reality of consent and overbear the will of the individual.