Kidnapping and Abduction

Question 1

Elements for abduction

Answer 1

Section 208
Unlawfully
Takes Away OR Detains
A person
Without the person’s consent OR With the person’s consent obtained by fraud or duress
With intent to:
a. Go through a form of marriage or civil union with the person.
b. Have sexual connection with the person.
c. Cause the person to go through a form of marriage or civil union or to have sexual connection with some other person.

Question 2

What must be proved

Answer 2

• The defendant took away or detained a person
• The taking or detention were unlawful
• The taking or detention was intentional
• The taking or detention was without that person’s consent (or fraud or duress)
• The defendant knew that there was no consent to the taking or detention
• The defendant intended to go through with one of the specified intents

Question 3

Unlawful

Answer 3

Without lawful justification or excuse

Question 4

Taking away

Answer 4

The victim is physically removed from one place to another.

Question 5

Case law for taking away

Answer 5

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 6

Case law for taking away and detaining

Answer 6

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

Question 7

Detains

Answer 7

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

Question 8

Case law for detains

Answer 8

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.

Question 9

Consent

Answer 9

Conscious and voluntary agreement to something proposed or desired by another.

Question 10

Case law for consent

Answer 10

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 11

Consent obtained by fraud

Answer 11

The offender may deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions.

Question 12

Consent obtained by duress

Answer 12

A victim may 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. The threats and pressure is such as to destroy the reality of consent and overbears the will of the individual.

Question 13

Case law for abduction intent

Answer 13

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.

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.

Question 14

Sexual connection

Answer 14

Connection effected by the introduction into the genitalia or anus of one person, a part of the body of another person or an object held or manipulated by another person.

Question 15

Elements of kidnapping

Answer 15

Section 209
Unlawfully
Takes Away OR Detains
A person without the person’s consent OR With the person’s consent obtained by fraud or duress
With intent to:
a. Hold him/her for ransom or service
b. Cause him/her to be confined or imprisoned
c. Cause him/her to be sent or taken out of New Zealand

Question 16

Ransom

Answer 16

Sum of money demanded or paid for the release.

Question 17

Service

Answer 17

Servant or slave.

Question 18

Confined

Answer 18

Restricting their movements to within a geographical area. Curtailing their activity and exercising control and influence over them. Not necessary for the kidnapper to directly effect the confinement.

Question 19

Imprisoned

Answer 19

Put them in a prison or confine them as if in a prison. (locked in a room or boot of a car)

Question 20

Elements for abduction of a young person under 16 (1)

Answer 20

Section 210(1)
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

Question 21

Elements for abduction of a young person under 16 (2)

Answer 21

Receives a young person
Knowing that he or she had been unlawfully taken away 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

Question 22

Case law for proof of age

Answer 22

R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

Question 23

Section 210(3)(a)

Answer 23

It is immaterial whether the young person consents or is taken or goes or is received at his or her own suggestion.

Question 24

Section 210(3)(b)

Answer 24

It is immaterial whether the offender believes the young person to be of or over the ages of 16.

Question 25

Section 127

Answer 25

There is no presumption of law that a person is incapable of sexual connection because of his or her age.

Question 26

Section 210A

Answer 26

A person who claims in good faith a right to the possession of a young person under the age of 16 cannot be convicted of an offence because he or she gets possession of the young person.

Question 27

Case law for kidnapping intent

Answer 27

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.