Kidnapping

Question 1

Kidnapping

Section and penalty

Answer 1

CA61; S209(a); (b); (c)

14 years imprisonment

Question 2

Kidnapping Elements

Answer 2

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 -

5) With intent to:
a) hold him or her for ransom or to service; or

b) cause him or her to be confined or imprisoned; or
c) cause him or her to be sent or taken out of NZ.

Question 3

What must be proved - R v M

Answer 3

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.

Question 4

Unlawfully

Answer 4

Without lawful justification, authority or excuse

Question 5

R v Crossan

Answer 5

Taking away and detaining are “separate and distinct offences. The first consists of taking [the victim] away; the second of detaining them. The first offence was complete when the prisoner took the woman away against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and separate offence.”

Question 6

Takes Away

R v Wellard

Answer 6

Where the victim is physically removed from one place to another

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.”

Question 7

Detaining

R v Pryce

Answer 7

Doing something to impose a constraint or restraint on the person detained.

R v Pryce:

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.

Question 8

Person

Answer 8

Gender neutral proven by judicial notice or circumstantial evidence.

Question 9

Consent and Cox

Answer 9

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

Consent may be conveyed by words or conduct or both.

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 10

Consent obtained by fraud

Answer 10

Consent obtained by the misrepresentation of the facts or the offenders intentions.

Question 11

Consent obtained by duress

Answer 11

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

Question 12

Child under 16

Answer 12

Section 209A Crimes Act 1961

For the purposes of S208 and S209, a person under the age of 16 years cannot consent to being taken away or detained.

Question 13

Intent

Answer 13

In a criminal law context there are two specific types of an intention in an offence. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.

R v Collister.

Question 14

R v Mohi

Answer 14

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.

Question 15

R v Waaka

(Hint: Intent being taken away in a waka)

Answer 15

Intent may be formed at any time during the taking away. If the taking away commences without the intent to have sexual intercourse, but that intent is formed during the taking away, then that is sufficient for the purposes of this section.

Question 16

With intent to:

a) hold him or her for ransom or to service

Answer 16

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

Service:
The offender’s intent is to keep the victim as a servant or slave.

Question 17

b) to cause him or her to be confined or imprisoned

Answer 17

Confined:

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.

Imprisoned:

To put them in prison, or to confine them as if in prison. It has a narrower meaning than ‘confine’ and may apply in situations where the victim is, for example, locked in a room or in the boot of a car.

Question 18

c) To cause him or her to be sent or taken out of NZ

Answer 18

Sent out of New Zealand:
Sent - normal meaning, to be sent out of NZ shores.

Taken out of New Zealand:
Taken suggests victim in company or custody of a person accompanying them out of New Zealand.

Question 19

What definitions and/or case laws should be included in your discussion of the liability of:

• 209(a); (b); (c) - kidnapping

Answer 19

Definition of unlawfully: without lawful justification or excuse;

Definition of takes away or detains: takes - where the victim is physically removed from one place to another and R v Wellard; detains - an active concept that involves doing something to impose a constraint or restraint on the person detained and R v Pryce;

Taking away and detaining being separate offences: R v Crosson

What must be proved: 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;

Definition of person: CA61; S2 - gender neutral proven by judicial notice or circumstantial evidence

Definition of consent: a person’s conscious and voluntary agreement to something desired and proposed by another; R v Cox;

Definition of consent obtained by fraud or duress: fraud - consent obtained by the misrepresentation of the facts or the offender’s intentions; duress - acquiescing to an offender’s demands based on fear of the consequences if they refuse.

When offence is complete: R v Mohi;

Definition of intent: 2 specific types; R v Collister; R v Waaka

Definition of ransom/service: ransom - a sum of money demanded or paid for the release of a person being held captive; service - the offender’s intent is to keep the victim as a servant or slave;

Definition of confined/imprisoned: confined - 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; imprisoned - to put them in prison, or to confine them as if in prison. It has a narrower meaning than ‘confine’ and may apply in situations where the victim is, for example, locked in a room or in the boot of a car;

Definition of sent or taken out of New Zealand: sent - normal meaning, to be sent out of NZ shores; taken - suggests victim in company or custody of a person accompanying them out of New Zealand;