VIOLENCE - ABDUCTION AND KIDNAPPING

Question 1

Name the key liabilities you must remember for kidnapping / abduction

Answer 1

208 - Abduction
209 - Kidnapping
210(1) - Abduction of a YP under 16
210(2) - Abduction of a YP under 16

Question 2

Name the key case laws you must remember for kidnapping / abduction

Answer 2

R v Crossan 
R v Wellard 
R v Pryce 
R v Cox
R v Mohi 
R v Waaka 
R v M
R v Forrest and Forrest

Question 3

Define the following:
- confinement

• imprisonment

Answer 3

• confined
  restricting their movements to within a geographical area
• imprisoned
  to be held as if in prison

Question 4

R v Cox

Answer 4

Consent must be full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment

A persons voluntary and conscious agreement to do something proposed or desired by another person.

Question 5

When is the offence of abduction complete

Answer 5

As soon as the offender detains the victim with one of the specified intents.

Question 6

Is it a defence to say that a person is incapable of sexual connection because of his or her age?

Answer 6

NO

Section 127, Crimes Act 1961

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

Question 7

Explain the statutory defence in Section 210A, CA 1961

Answer 7

A person who claims in good faith a right to the possession of a young person under the age of 16 yrs cannot be convicted Kidnapping or Abduction of a Young Person Under 16 because he or she gets possession of the young person.

When a defence under this section arises, It lies with the prosecution to negate good faith beyond reasonable doubt.

Question 8

Section 210(3)(a) Crimes Act 1961

Is it a defence to the abduction of a child to say that they child consented to being taken away?

Answer 8

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.

Question 9

Section 210(3)(b), Crimes Act 1961

Is it a defence to abduction of a child for the defendant to say they believed the person was over 16?

Answer 9

For the purposes of subsections (1) and (2) if is immaterial whether the offender believes the young person to be of or over the age of 16

Question 10

R v Wellard

Answer 10

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

(taking away)

Question 11

R v Pryce

Answer 11

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

(detainment)

Question 12

R v Mohi

Answer 12

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

(offence complete upon taking)

Question 13

R v Forrest and Forrest

Answer 13

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age

(age)

Question 14

Define sexual connection

Answer 14

Section 2, CA1961

(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)

Question 15

Can a child under 16 consent to being taken away or detained

Answer 15

Section 209A, CA1961

NO.

Question 16

R v Crossan

Answer 16

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 different offence.

Question 17

Detains

Answer 17

Detaining is an active concept rather than a passive one. It involves doing something to impose a constraint or restraint on the person detained.

Question 18

Explain consent obtained by:

• fraud
• duress

Answer 18

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

Duress - The critical question in relation to duress is whether the threats, pressure or coercion are such that they destroy the reality of consent and overbear the will of the individual.

Question 19

Define ransom

Answer 19

A “ransom” is a sum of money demanded or paid for the release of a person being held captive.

Question 20

Explain ‘with Intent to hold him or her to service’

Answer 20

This provision relates to situations where the offenders intent is to keep the victim as a servant or slave.

Question 21

To be guilty of receiving a young person, what must you know

Answer 21

Knowing the young person has been unlawfully taken with the necessary intent.

This may relate to situations where, for example, a father takes his child from its mother contrary to a court order, and hides the child at the grandparents house.

Question 22

Define entice

Answer 22

To entice means to tempt, persuade, or attract by arousing hope or desire.

Question 23

Section 209A Crimes Act 1961 - what does this section set out

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

What must be proved for a conviction under 210(1)

Answer 24

1. The defendant took, enticed or detained a person under the age of 16 years.
2. The taking, enticement or detention was deliberate or intentional.
3. The taking, enticement or detention was from a person who had lawful care of the young person.
4. The defendant knew the other person had lawful care of the young person.
5. The taking, enticement or detention was ‘unlawful’.
6. It was done with intent to deprive a parent, guardian, or other person having lawful care or charges of the young person of possession of that young person.

Question 25

What must be proved for a conviction under 210(2)

Answer 25

1. The defendant received a person under the age of 16 years.
2. The receiving was deliberate or intentional.
3. The defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person.
4. The defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person.

Question 26

R v M

Answer 26

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 27

R v Waaka

Answer 27

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 28

Intent - Section 210(1)

Answer 28

There must be an intention to take, entice or detain a young person and also a specific intent to deprive the parent or other specified person of the possession of the child.

Question 29

Intent - Section 210(2)

Answer 29

This section could be read as broadening the scope of the offence to include people who receive a young person without an intent to deprive the person with lawful care of possession provided the defendant knew that the person responsible for the taking had such an intent.

Question 30

Can a young person consent to being taken away for the purpose of sections 209 to 210 Crimes Act 1961?

Answer 30

They cannot consent to being taken away (section 210(3) Crimes Act 1961). For the purposes of subsection (1) and (2) it is immaterial whether the offender believes the young person consents, or is taken or goes or is received at his or her own suggestion.

Question 31

What must be proved for an abduction conviction

Answer 31

• The defendant took away or detained a person.
• The taking or detention was intentional and deliberate.
• The taking or detention was unlawful.
• The taking or detention was without that person’s consent (or with consent induced by fraud or duress).
• The defendant knew that there was no consent to the taking or detention
• The defendant intended to:
  (a) Marry the person taken or detained; or
  (b) Have sexual connection with the person taken or detained; or
  (c) Cause the person taken or detained to marry another person or to have sexual connection with another person.

Question 32

Define unlawfully

Answer 32

Unlawfully means “without lawful justification or excuse”.

Question 33

For the charges of abduction and kidnapping, does the crown have to prove marriage or sexual connection occurred.

Answer 33

No - they are matters of intent, it is not necessary to prove that they occurred or were even attempted, just that the intent to do so existed at the time of taking away

This holds true for robbery also.

R v Mohi