Kidnapping/Abduction Flashcards
Define unlawfully.
R v Chartrand
“Without lawful justification, authority or excuse.”
Discuss the element of taking away.
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.
Takes away:
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.”
Discuss the element Detains.
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.
Detains:
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.
How is consent defined?
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
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 judgment.”
Discuss the findings in R v Mohi and what element does it relate to?
With intent to…
R v Mohi
The offence is committed at the time of 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.
Define sexual connection, including Act and Section.
Crimes Act 1961, Section 2
Sexual connection means
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person, or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
Explain the provisions relating to consent of a young person under 16.
Crimes Act 1961, Section 209A
Young person under 16 cannot consent to being taken away or detained
For the purposes of sections 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.
Crimes Act 1961, Section 210(3)(a)
For the purposes of subsections (1) and (2) it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion.
Explain the provisions relating to good faith defence.
A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or section 210 because he or she gets possession of the young person.
Define person
Gender neutral. Proven by judicial notice or circumstantially.
Discuss the element
With his or her consent obtained by fraud OR duress.
Consent is a person’s conscious and voluntary agreement to something desired or proposed by another.
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 judgment.”
To obtain consent by fraud:
Consent obtained by the misrepresentation of the facts or the offenders intentions.
OR
To obtain consent by duress:
Consent obtained by actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion.
AND
s209A, CA 1961
A child under the age of 16 years cannot consent to being taken away or detained.
List the discussion points for intent for kidnapping/abduction.
Intent
Mohan
Waaka
Mohi
Define marry.
In this context the term “to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.
Define cause him or her to be married to or to have sexual connection with some other person.
EITHER
In this context the term “to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.
OR
Crimes Act 1961, Section 2
Sexual connection means
(a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person, or
(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)
AND EITHER
Cause to be married or have sexual connection with some other person:
This relates to situations where the abductor takes away or detains a victim to enable another person to marry them.
OR
Under this provision the offenders intent is to enable another person to have sexual connection with the victim.
Discuss the element of with intent to hold him or her for ransom or service.
Intent R v Mohan R v Waaka R v Mohi The offence is committed at the time of 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.
AND
Ransom:
A suit of money demanded or paid for the release of a person being held captive.
OR
Service:
Hold as a servant or slave.
Define the element of with intent to cause him or her to be imprisoned or confined.
Intent Mohan Waaka R v Mohi The offence is committed at the time of 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
Imprisoned:
To be held as if in prison.
OR
Confined:
Restricting their movements to within a geographical area.
