Abduction/Kidnapping

Question 1

Meaning of unlawful

Answer 1

Without justification or excuse

Question 2

R v Crossan

Answer 2

Taking away and detaining are two separate and distinct offences

Question 3

Taking away definition

Answer 3

Situations where the victim is physically removed from one place to another.

Question 4

R v Wellard

Answer 4

The essence of kidnapping is the deprivation of liberty coupled with a carrying away from the place where the victim wants to be

Question 5

Detaining definition

Answer 5

An active concept rather than a passive one

Doing something to inlay a constraint or restraint.

Mere delay for a short or trifling period is not sufficient.

What her or not a person has been detained will be a question of fact and degree

Question 6

Consent definition

Answer 6

Consent is a persons concious and voluntary agreement to something desired or proposed by another

Question 7

R v Cox

Answer 7

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

Question 8

Consent obtained by fraud definition

Answer 8

Deceive the victim into agreeing to a proposition by misrepresenting facts or intentions

Question 9

Consent obtained by duress definition

Answer 9

Victim agrees to offenders demands based on fear of consequences if they refuse

Can arise from actual or implied threat

Can include pressure or coercion

Question 10

What is the critical question in relation to duress?

Answer 10

Whether the threats pressure or coercion are such that they destroy the reality of consent and overbearing the will of the individual

Question 11

R v Collister

Answer 11

Circumstantial evidence from which an offenders intent can be inferred

Offenders actions words before during after event

Surrounding circumstances

Nature of the act

Question 12

Intent in abduction cases

Answer 12

Marriage and sexual connection appear only as matters of intent, and it is not necessary to prove that they actually occurred or were even attempted.

Question 13

R v Mohi

Answer 13

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 for the crown to show that intent was carried out.

Question 14

To marry definition

Answer 14

Engage in marriage solemnised in accordance with the marriage act.

Expanded to include civil union

Question 15

Ransom definition

Answer 15

Sum of money demanded it laid for the release of a person being held captive

Question 16

Intent to hold him or her service definition

Answer 16

Keep the victim as a servant or a slave

Question 17

Confining definition

Answer 17

Can include restricting their movement to within a geographical area

Includes curtailing their activity and exercising control and influence over them

Question 18

Imprison definition

Answer 18

To put them in jail , or confine as if they were in prison

Narrower definition than confine

Question 19

Who is abduction of a young person an offence against?

Answer 19

Offence against the custodial rights of the parent or guardian

Question 20

Definition of a young person

Answer 20

A person under the age of 16

Question 21

R v Forrest and Forrest

Answer 21

The best evidence passive in the circumstances should be adduced by the prosecution in proof of the persons age

Question 22

Entice definition

Answer 22

Means to tempt, persuade, or attract by a rousing hope or desire

Question 23

Simester and Brookbanks definition of knowing:

Answer 23

Means knowing or correctly believing.

The defendant may believe something wrongly, but cannot know something that is false.

Question 24

When is consent not a defence?

Answer 24

Section 209A: Consent is no defence on charges under sections 208-210 when the person taken is under the age of 16 years

Section 210(3): 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.

No presumption because of age.

Question 25

Good faith defence

Answer 25

Defence against kidnapping:

A person who claims in good faith to a right of possession if the young person ages under 26 cannot be charged of offence against 209 or 210.

Question 26

Abduction liability

Answer 26

s208 CA 1961

Unlawfully
Takes away OR detains
A person
Without their consent OR with consent obtained by fraud or duress
With intent to:
- a: go through with a form of marriage or civil union
-b: have sexual connection with the person OR
-c: cause the person to go through a form of marriage or civil union or to have sexual connection with some other person

Question 27

Kidnapping liability

Answer 27

s209 CA 1961

Unlawfully
Takes away OR detains
A person
Without their consent OR with consent obtained by fraud or duress
With intent to:
-a: hold him or her ransom or to service OR
-b: cause him or her to be confined or imprisoned OR
-c: cause him or her to be sent or taken out of NZ

Question 28

Abduction of young person liability

Answer 28

s210(1) CA 1961

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

Take OR entices OR detains

The young person

Question 29

Abduction of young person under 16(2)

Answer 29

s 210(2)

Receives

A young person

Knowing that he or she has been unlawfully taken 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 the possession of him or her

Question 30

R v Chartrand

Answer 30

Whether or not the defendant had an innocent motive, or intended to interfere with possession, is beside the point