Kidnapping Definitions and need to knows

Question 1

UNLAWFULLY

Answer 1

WITHOUT LAWFUL JUSTIFICATION OR EXCUSE

Question 2

TAKING AWAY

Answer 2

Victim physically removed from one place to another.
R V WELLARD

Question 3

DETAINS

Answer 3

Detaining is an active concept rather than a passive one, involves doing something to place a constraint on a person.

R V PRYCE

CA61 does not define a minimum time a person has to be detained for it to be defined as detained. Mere delay or trifling may not constitute detaining

BOYD V R

Question 4

CONSENT

Answer 4

Person conscious and voluntary agreement to something proposed by another.

Conveyed by conduct words or both.

R V COX
CONSENT must be full, voluntary, free and informed given by someone in a position to form a rational judgement.

Question 5

CONSENT OBTAINED BY FRAUD

Answer 5

Offender decieves the victim by a misrepresentation of the facts or intentions

R v wellard guy posed as a police officer

R v cort guy stopped at bus stops and offered people a lift saying bus broke down.

Question 6

CONSENT BY DURESS

Answer 6

Is when a victim acquiesce to a offenders demands based on fear of consequences

Critical question is whether the threats pressure or else is such to destroy the reality of consent and overbears the will of the victim.

Question 7

SEXUAL CONNECTION

Answer 7

DEF S 2 CA

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)

Question 8

What MUST BE PROVED BY CROWN in kidnapping/abduction

Answer 8

Defendant was took away or detained
Taking or detention was intentional
Taking or detention was unlawful
Taking or detention was without that persons consent (or with consent by fraud or duress)
The defendant intended to
HOLD THE person for ransom/servcice
Cause to be confined / imprisoned
Cause to be sent out or taken out of nz

Question 9

Ransom

Answer 9

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

Question 10

Service

Answer 10

Means to keep the victim as a servant or slave.

Question 11

CONFINING

Answer 11

Means to restrict a person’s movements to within a geographical area. Wider meaning includes curtailing activity and exercising control and influence

To cause suggests that the kidnapper must intend to be responsible for the victim being confined; it is not necessary for him to directly affect the confinement himself.

Question 12

IMPRISONED

Answer 12

Means to put them in prison or to confine them as if in prison, has a narrower meaning then confine. May apply when a person is locked in a room or in the boot of a car.

Question 13

To cause to be sent out of NZ

Answer 13

Sent may include situations where the victim leaves under their own accord as a result of threat or duress.

Question 14

To cause to be taken out of NZ

Answer 14

Taken suggests that the victim is in the company or custody of a person accompanying them out of NZ

Question 15

young person

Answer 15

means person under 16

Question 16

For a convictions under s210(1) ca

Answer 16

Crown must prove
Defendant took enticed or detained a person under 16
The taking enticement or detention was intentional
The taking enticement or detention was from as person who had lawful custody of the young person
The taking enticement or was unlawful
It was done with intent to deprive a parent or person who has lawful care of that YP.

Question 17

For a convictions under s210(2) ca

Answer 17

The defendant received a person under 16
Receiving was intentional
Defendant knew the yp had been unlawfully taken
The defendant intended by reason of receiving to deprive a parent guardian or other person having lawful care or possession.

210(2) broadens scope to people who receive a yp with intent to deprive the person who has lawful possession.

Question 18

Who can commit these 210 offences?

Answer 18

A parent may commit an offence against these sections in respect of their own child when their actions contravene a court order.

This is not an offence under the heading of crimes against the people but it is against the custodial rights of the parent/guardian.

Also protects the rights of those having temporary lawful possession.

Question 19

Intent in S210 offences

Answer 19

Depriving a parent of possession may not be the offender’s primary intention however if they know their actions will inevitably cause the outcome, therefore depriving said to be intentional.

In r v chartrand a 43 yr old male enticed a child to a riverbank where he took photos of the boy he argued that he had no intention to deprive possession of the child. But take photos as a surprise for the parents he didn’t know.

Court held it doesn’t matter if an innocent motivation or intended to interfere for a very short time is irrelevant.

Question 20

entices

Answer 20

To entice means to tempt or persuade, or attract by hope or desire.
May be situations where a stranger tempts away a child with sweets or contrary to a parenting order.

Question 21

S210(3)

Answer 21

For the purposes of subsections (1) and (2),—
(a)
it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and
(b)
it is immaterial whether the offender believes the young person to be of or over the age of 16.

Question 22

RECEIVING (in terms of young person)

Answer 22

Knowing a person has been unlawfully taken
Father takes child contrary to order and stashes child at grandparents they may be liable if they know the child is contrary to order.

Receiving physical custody several people could jointly receive a person.

Question 23

MISC PROVISIONS

S209A

Answer 23

For the purposes of sections 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.

Question 24

Presumption of incapability S127 CA

Answer 24

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

Question 25

Statutory good faith defense
S210A

Answer 25

a person who claims in good faith to the possession of a young person under the age of 16 cannot be convicted of an offence under 209/210 CA because he or she gets possession

-Where a defence under 210A arises prosecution must negate claim of right beyond reasonable doubt.

-The question for the jury will not be whether the defendant in law was entitled to possession of the young person.

-This point is being covered by the element unlawfully.

-The question will be whether it is shown beyond a reasonable doubt that the defendant did not believe in good faith that he was entitled to possession