Summative 2 Flashcards
Case Law for Taking away and detaining
R V CROSSAN
Taking away and detaining are “separate and distinct offences. The first consists of taking [the
victim] away; the second of detaining her. 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 different offence”
Abudction
Crimes Act 1961
Section 208
- Unlawfully
- Takes Away OR Detains
- A person
- Without consent OR consent obtained by fraud or duress
- With intent to
A) Go through a form of marriage or civil union
B) Have sexual connection with a person
C) Cause the person to go through a form of marriage or civil union OR to have sexual connection with some other person
Kidnapping
Crime Act 1961
Section 209
- Unlawfully
- Take away or Detain
- A Person
- Without their consent OR consent obtained through fraud or duress
- With intent to
A) Hold him or her for ransom OR to service
B) Cause him or her to be confined OR imprisoned
C) Cause him or her to be sent or taken out of New Zealand
Abduction of a young person under 16
Crimes Act 1961
Section 210(1)
- With intent to deprive
A) A Parent
B) A guardian
C) Other person having lawful care or custody of a young person
- Of the possession of the young person
- Unlawfully
A) Takes away
B) Entices away
C) Detains
- Young Person
Abduction of a young person under 16 (receives)
Crimes Act 1961
Section 210 (2)
- Receives
- A young person
- Knowing that he or she has been
A) taken away
B) Enticed away
C) Detained
- With intent to deprive a parent or guardian or other person having lawful care or charge of him or her of the possession of him or her.
Two types of intent
An intention to commit the act and an intention to get a specific result.
Case law for detain
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.
Definition for Takes Away
Physically removed from one place to another
Case law for Takes Away
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”.
To obtain consent by fraud
Deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions.
Case Law for document
R V MISIC
A document is a thing which provides evidence or information or serves as a record.
Case Law for consent
R V COX
Consent must be full, voluntary free and informed and given by a person in a position to from rational judgement.
Dishonestly taking or using a document (Takes/Obtains)
- Liability offence
Crimes Act 1961
Section 228 (1) (A)
- Dishonestly
- Without claim of right
- Takes OR obtains
- Any Document
- With intent to obtain any
A) Property
B) Service
C) Pecuniary Advantage
D) Valuable consideration
Dishonestly taking or using a document (Use/attempt to use)
- Liability offence
Crimes Act 1961
Section 228 (1) (B)
- Dishonestly
- Without claim of right
- Uses or attempts to use
- any document
- with intent to obtain any
A) Property
B) Service
C) Pecuniary Advantage
D) Valuable consideration
Obtain by deception or cause loss by deception (Obtains ownership)
Crimes Act 1961
Section 240 (1) (A)
- By any deception
- Without claim of right
- obtains
A) Ownership
B) Possession of
C) Control over
- Any
A) Property
B) Privilege
C) Service
D) Pecuniary Advantage
E) Benefit
F) Valuable consideration
- Directly or Indirectly
Obtain by deception or cause loss by deception (debt / liability)
Crimes Act 1961
Section 240 (1) (B)
- By any deception
- Without claim of right
- In incurring any
A) Debt
B) Liability
- Obtains credit
Obtain by deception or cause loss by deception (Cause person to)
Crimes Act 1961
Section 240 (1) (C)
- By any deception
- Without claim of right
- induces or causes any other person to
A) Deliver over
B) Execute
C) Make
D) Accept
E) Endorse
F) Destroy
G) Alter
- Any document or thing capable of being used to derive pecuniary advantage
Obtain by deception or cause loss by deception (cause loss)
Crimes Act 1961
Section 240 (1) (D)
- By any deception
- Without claim of right
- cause loss to any person
Case law for taking away
R V WELLARD
The essence of the offence of kidnapping is the deprivation of liberty coupled with a carrying away from a place where the victim wants to be.
Case law for 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 failure to hand over.
Consent for under 16 (Section 208 and 209)
For the purposes of sections 208 and 209 a person under the age of 16 cannot consent to being taken away.
Case law for intent
R V COLLISTER
Circumstantial evidence from which an offenders intent may be inferred can include:
- Actions and words spoken before the event
- The surrounding circumstances
- The nature of the act itself
Case law for proving age
R V FORREST AND FORREST
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.
Case law for kidnapping / Abduction offence complete
R V MOHI
The offence is committed at the time of taking away, so as long as there is at that moment, the necessary intent.
Case Law for abduction (Young Person)
Whether the defendant may have had an innocent motive, or intended to interfere with possession for a very short time is beside the point.
Case Law for document
R V MISIC
A document is a thing which provides evidence or information or serves as a record.
Case law for uses document (attempts)
Hayes V R
An unsuccessful use of a document is as much use as a successful one.
Case Law for Service (Deception)
R V CARA
Service is limited to economic value and exclude privileges or benefits.
Case law for pecuniary advantage
HAYES V R
A pecuniary advantage is anything that enhances the accused financial position.
Case Law for valuable consideration
A valuable consideration is anything capable of being valuable consideration, whether of a momentary kind or any other kind.
Case Law for intent to deceive
R V MORLEY
An intention to deceive requires that the deception is practised in order to deceive the affected party.
Case Law for Cause Loss
MORLEY V R
The loss alleged by the victim must have been induced by, or caused by reliance upon the deception.
Obtain definition
To obtain or retain for himself or herself or for any other person.
What is the required factor with regard to deception of an offender’s ‘intent to obtain’.
They must intend to obtain BY the deception.
Property Definition
Property includes any real and personal property, and any estate or interest in any real or personal property, money, electricity and any debt, and any thing in action, and any other right or interest.
What are three examples of valuable consideration?
- Monetary payment for goods or services
- Goods given in return for services provided
- Issuing a false invoice to receive payment for goods never supplied
Dishonestly definition
Acting without a belief that there was expressed or implied consent from a person in a position to give such consent or authority.
Claim of Right Definition
A belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed.
Takes Definition
Move the property or causes it to be moved.
Document definition (CA)
a document, or part of a document, in any form.
Use
To use in any way
Attempts elements
- Actus Reus
- Mens Rea
- Sufficiently proximate
Deception definition
A false representation, whether oral, documentary or by conduct, where the person making the representation intends to deceive any other person
Control over definition
The power of directing and command
Privilege/Benefit definition
A special right or advantage
Debt definition
Money owed from one person to another
Credit definition
An obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.
Deliver over definition
To surrender something
Execute definition
To put a course of action into effect
Make definition
Make it up or create it
Endorse definition
To write or sign a document
Alter definition
To change a character or composition
Loss definition
Financial detriment to the victim
To any other person definition
A person other than the defendant
False representation
The representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless whether it is false. Absolute certainty is not required and wilful blindness as to falsity of the statement will suffice.
What are the three points that are required to be proved with regard to deception?
- That there was an intent to deceive
- That there was a representation by the defendant
- That the representation was false, and that the defendant either knew it to be false in a material particular OR was reckless whether it was false in a material particular.
Is silence or non-disclosure regarded as a representation? Are there any exceptions to this? Case law?
Generally not, however there can be exceptions, such as in R v Dronjak or Rao v Police.
Does a thief ever obtain title to stolen goods?
No
What are the two necessary actions to avoid title?
- Communicating with the defrauder
- advising the police
What is the name of a title obtained by deception?
A “voidable title” - this means that the title can be “avoided” or vacated by the seller, however until the title is avoided, the defrauder has a title (albeit a voidable one) and can confer good title on anyone who acquires the goods from him or her in good faith.
Can a seller pass title on to a buyer when they have no rights of ownership to the goods themselves?
They can pass on no better title to property than they themselves own - the buyer can receive no greater interest in the goods than the seller had.
What is “title”?
A legal right to property.
What are the two concepts on which the difference between theft and obtaining by deception hinges?
- Possession
- Ownership
Knowledge case law
AP SIMESTER AND WJ BROOKBANKS
Knowing means knowing or correctly believing, the defendant may believe something wrongly but cannot know something that is false.
Definition of unlawfully
without lawful authority or excuse
To obtain consent by fraud definition
Deceive the victim into agreeing to a proposition by misrepresenting the fact or their intentions.
To obtain consent by duress definition
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.
Entices
To tempt, persuade or attract by arousing hope or desire
Types of intent
An intent to commit an act
An intent to get a specific result
Marry defintion
To engage in marriage in accordance with the marriage act 1955
Sexual Connection definition
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
Ransom definition
A sum of money demanded or paid for the release of a person being held captive.
Service definition (kidnapping)
To keep as a servant or slave
Confined definition
Restricting their movements to within a geographical area but also means curtailing their activity and exercising control and influence over them.
Imprisoned definition
To put or confine a person as if they are in prison. This has a narrower meaning than ‘confine’.
List other miscellaneous provisions regarding abduction of YP under 16
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
Case law for kidnapping
