Violence - Abduction and Kidnapping

Question 1

What is the elements for s208(a) or (b) or (c) CA 1961 - Abduction for the purposes of marriage or sexual connection?

What is the penalty?

Answer 1

Answer:
1. Unlawfully

2. takes away or detains
3. a person
4. Without his or her consent or with his or her
   consent
   obtained by fraud or duress,—
5. With intent to
   (a) To marry him or her; OR(b) To have sexual connection with him or
   her; OR(c) To cause him or her to be married to or
   to have sexual connection with some other
   person.

Answer:
Max 14 years imprisonment

Question 2

What are the elements of s209 (a), (b), (c) CA 1961 - Kidnapping?

Answer 2

Answer:
1. Unlawfully

2. takes away or detains
3. a person
4. Without his or her consent or with his or her
   consent
   obtained by fraud or duress, -
5. With intent to
   (a) To hold him or her for ransom or to service OR(b) To cause him or her to be imprisoned or
   confined OR(c) To cause him or her to be sent or taken out of
   NZ

Question 3

What must be proved by the Crown for a conviction in the charge of s208 CA1961 - Abduction?

Answer 3

Answer:
The Crown must prove that:
1. The defendant took away or detained a person;

2. The taking or detention was intentional or deliberate;
3. The taking or detention was unlawful;
4. The taking or detention was without that person’s consent (or with consent induced by fraud or duress);
5. The defendant knew that there was no consent to the taking or detention; and
6. 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 4

What is meant by “unlawfully?”

Answer 4

Answer:

Without justification, authority or excuse

Question 5

What is the case law relating to takes away and detaining?

Answer 5

Awswer:
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.

Question 6

What is the case law relating to Takes Away?

Answer 6

Answer:
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 7

What is the case law relating to Detains?

Answer 7

Answer:
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 8

Does the Crimes Act specify a minimum period for which a person’s freedom must be curtailed before they are deemed to have been detained?

Answer 8

Answer:
No but mere delay or keeping back for a short or trifling period may not constitute detaining

Whether a person is detained or not will therefore be a question of fact and degree to be decided on the circumstances of each case.

Question 9

What is the definition of Person?

Answer 9

Answer:
Person is gender neutral, generally accepted by judicial notice or proved by circumstantial evidence

The age of the victim is not relevant to offences under ss208 and 209, but is relevant under s210.

Question 10

What is consent in the context of s208 and s209?

Answer 10

Answer:

‘Consent’ is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 11

What is the case law regarding consent?

Answer 11

Answer:
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.”

Question 12

How may consent be conveyed?

Answer 12

Answer:

By words or conduct or both.

Question 13

What is consent obtained by fraud?

Answer 13

Answer:
To obtain consent by fraud is-
consent obtained by the misrepresentation of the facts or the offenders intentions

Question 14

What is consent obtained by duress?

Answer 14

Answer:
To obtain consent by duress is consent obtained by actual or implied threat of force to the victim or another person.
Can include other forms of pressure or coercion.

Victim may agree to an offenders demands based on fear of the consequences if they refuse.

Question 15

Can a child under 16 give consent?

Answer 15

Answer:
No. A child under the age of 16 cannot consent to being taken away or detained
s209A CA 1961

Question 16

What is intent in abduction cases?

It is necessary to prove that the intents occurred?

Answer 16

In abduction, marraige and sexual connection appear only as matters of intent .

No. It is not necessary to prove that they actually occurred or were even attempted.

Question 17

What is the definition of intent?

Answer 17

Answer:
in criminal law there are two specific types of intention.
- An intention to commit the offence
- An intention to get a specific result

Question 18

What is the case law regarding intent in abduction?

Answer 18

Answer:
R v 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.

Question 19

When is the offence of abduction complete?

Answer 19

Answer:
So, the offence is complete, in the sense that the offender becomes criminally liable, as soon as he detains the victim with one of the specified intents.

Question 20

What does the term “to marry” mean?

Answer 20

Answer:
In this context the term “to marry” means to engage in a marriage solemnized in accordance with the provisions of the Marriage Act 1955.

Question 21

What is sexual connection?

Answer 21

Answer:
s2 Crimes Act 1961. 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 o

(b) connection between the mouth or tongue of one person and part of another persons genitalia or anus or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

Question 22

What is the meaning of cause to be married or have sexual connection with another person?

Answer 22

Answer:
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.

Question 23

In relation to s209 what is meant by “to hold him/her to “ransom or service?”

Answer 23

Answer:
Ransom
A sum of money demanded or paid for the release of a person being held captive OR

Service
Hold as a servant or slave

Question 24

In relation to s209 what is meant by “to cause him/her to be “imprisoned or confined?”

Answer 24

Answer:
Confined
Restricting their movements to within a geographical area

Imprisoned
To be held as if in a prison

Question 25

What is meant by “sent or taken out of NZ?”

Answer 25

Answer:
Sent out of NZ
Sent - normal meaning, to be sent outside NZ shores
OR
Taken out of NZ
Taken suggests victim in company or custody of a person accompanying them out of NZ

Question 26

For intent when the “taking away” occurs what case law relates?

Answer 26

Answer:
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 27

What must the Crown prove for a conviction under s209 CA 1961?

Answer 27

Answer:
Crown must prove that the:
1. Defendant took away or detained a person;

2. Taking or detention was intentional or deliberate;
3. Taking or detention was unlawful;
4. Taking was done without that person’s consent (or
   with consent induced by fraud or duress);
5. Defendant knew that there was no consent to the
   taking or detention; and
6. Defendant intended to:

(a) Hold the person for ransom or to service; or
(b) Cause the person to be confined or imprisoned; or
(c) Cause the person to be sent or taken out of New
Zealand.

Question 28

What case law relates to what the Crown needs to prove?

Answer 28

Answer:
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

Question 29

What is the difference between abduction and kidnapping?

Answer 29

Answer:

The actus reus elements of kidnapping are identical to those of abduction; the only difference is the offender’s intent.

Question 30

Is it necessary for the kidnapper to directly effect confinement of the victim?

Answer 30

Answer:
No. The inclusion of the words “to cause” suggests that although the kidnapper must intend for the victim to be confine he does not have to do it himself

Question 31

What is an example of “imprison”

Answer 31

Answer:

• locked in a room
• locked in the boot of a car

Imprison has a narrower meaning to that of confine

Question 32

What situations can the term “sent” include?

Answer 32

Answer:
Situations where the victim leaves the country on their own , perhaps as a result of a threat or other form of duress
Victim may be drugged and put on a plane or vessel to be transported from NZ

Question 33

What are the elements of s210 (1) CA 1961 ? - Abduction of a young person under 16

What is the penalty?

Answer 33

Answer:
1. With intent

2. To deprive a parent or guardian or other person
   having lawful care or charge of a young person or
   the possession of the young person
3. Unlawfully takes or entices away or detains the
   young person

Answer:
Max 7 years imprisonment

Question 34

What are the elements of s210 (2) CA 1961 ? - Abduction of a young person under 16

What is the penalty?

Answer 34

Answer:
1. Receives a young person

2. Knowing that he or she has been unlawfully taken
   or enticed away or detained
3. With intent To deprive a parent or guardian or other
   person having the lawful care or charge of a
   him or her of the possession of him or her.

Answer:
Max 7 years imprisonment

Question 35

What must be proved for s210 (1)?

Answer 35

For a conviction under s210(1) of the Crimes Act 1961 the Crown must prove that:

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”; and
6. It was done with intent to deprive a parent,
   guardian” or other person having lawful care or
   charge of the young person” of possession of that
   young person.

Question 36

What must be proved for s210 (2)?

Answer 36

Answer:
For a conviction under s 210(2) the Crown must prove that:
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 the him or her of
   the possession of that young person; and
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 37

In regard to s210 CA 1961 What must the intent of the offender be?

Answer 37

Answer:
The intent must be to take a, entice or detain a young person and also a specific intent to deprived the parent or other specified person of the possession of the child

Question 38

Is it necessary to prove the accused intended permanent deprivation of the child from its parents, care givers?

Answer 38

Answer:

No

Question 39

What would an example be of a parent committing an offence against s210 (2)

Answer 39

Answer:

A father who takes his own child from its mother contrary to a Court Order.

Question 40

What is the term young person?

Answer 40

Answer:

The term “young person” for the purposes of s210 is defined in subs (4) as someone under 16 years old.

Question 41

How is proof of age determined?

Answer 41

Answer:
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
Ideally the independent evidence will be that of a parent, but that will not always be possible.

Question 42

What case law relates to proof of age?

Answer 42

Answer - R v Forest and Forest

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

Question 43

What is defined by possession?

Answer 43

Answer:
The physical element requires the physical custody or control over the item in question and can be either “actual” or “potential”.

Actual possession arises where the thing in question is in a person’s physical custody or control.

Potential possession arises when the person has the potential to have the thing in question in their control.

Question 44

What is meant by unlawfully?

When lawfulness is raised, what must he prosecution prove?

Answer 44

Answer:
In this context the word ‘unlawfully’ means no more than “without lawful authority”.

Answer:
Where lawfulness is raised, it is for the prosecution to prove beyond reasonable doubt that the kidnapping was unlawful.

Question 45

What is meant by takes, entices?

Answer 45

Answer:
To “entice” means to tempt, persuade, or attract by arousing hope or desire.

eg.
- stranger tempts a child away by offering sweets, or
- a parent, contrary to a court order, persuades their
child to come with them by promising to take the
child to the playground. -

Question 46

What is meant by “receives” a young person?

Answer 46

Answer:
Subsection (2) creates the offence of “receiving” a young person, knowing the young person has been unlawfully taken with the necessary intent.

Question 47

In the context of s210 (2) What is meant by “knowing?”

Answer 47

Answer:
Subsection (2) creates the offence of “receiving” a young person, knowing the young person has been unlawfully taken with the necessary intent.

They must not only believe in that fact, but they must be correct about it
If the child has not been abducted then there is no offence

Question 48

What is s210A CA 1961 relate to in possession of a young person?

Answer 48

Answer:
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

When a defence under s210A arises, it lies with the prosecution to negate good faith beyond reasonable doubt.

Question 49

Can consent of a young person be given when being taken away or detained?

Answer 49

Answer:
No. Under s210 (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.

Question 50

Is it a defence for the accused to beleive that the young person is over 16?

Answer 50

Answer:
No. For the purposes of subsections (1) and (2), it is immaterial whether the offender believes the young person to be of or over the age of 16.