Abduction/kidnapping Flashcards
(26 cards)
S 208, CA 61
- Unlawfully
- Takes away
Or
Detains - A person
- Without their consent
Or
With consent obtained by fraud or duress - with intent to…
(a) go through a form of marriage or civil union
Or
(b) have sexual connection with the person
(c) cause the person to go through a form of marriage or civil union, or to have sexual connection, with some other person
Unlawfully
Without lawful justification or excuse
Takes away
The victim is physically removed from one place to another
R v Crossan
Taking away and detaining are seperate and distinct offences. The first part taking away, the second detaining. Conduct of detaining (after taking away) constitutes a new and different offence
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
Detains
Is an active concept. It incovles doing something to impose restraint
R v Crossan
Taking away and detaining are seperate and distinct offences. The first part taking away, the second detaining. Conduct of detaining (after taking away) constitutes a new and different offence
R v Pryce
Detaining is an active concept meaning to keep in confinement or custody. This is to be contested to the passive concept of harbouring or mere failure to handover
Person
X is a person. The fact that X is a person is generally accepted by judicial notice and proven by circumstantial evidence.
Gender neutral. Age is not relevant for 208/209, but is for 210
Without their Consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
Consent may be converted by words or conduct or both
R v Cox
Consent must be full, voluntary, free and informed, and freely and voluntarily given by a person in a position to form a rational judgement
With consent obtained by fraud or duress
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
Consent may be converted by words or conduct or both
R v Cox
Consent must be full, voluntary, free and informed, and freely and voluntarily given by a person in a position to form a rational judgement
obtained by fraud
Deceive the victim into agreeing to a proposition by misrepresenting the faces or their intentions
obtained by duress
Acquiesce to the offenders demand based on fear of the consequences if they refuse
May arise from actual or implied threat of force to the victim or another person, can also include pressure and coercion.
(The critical question is whether the threats/pressure destroy the reality of consent and over ears the will of the individual)
*s209A
For purposes of 208/209, a person under age of 16 cannot consent to being taken away or detained
With intent to
(a) go through a form of marriage or civil union
There are two types of intent. Intention to commit the act and intention to get a specific result.
R v Collister
Circumstantial evidence from which intent can be inferred:
1) offenders actions and words before/during/after
2) surrounding circumstance
3) nature of the act
Marriage appears only as a matter of intent, it is not necessary to prove they actually occurred or were even attempted
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
R v Waaka
Intent may be formed at any time during the taking away. If taking away commended 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
With intent to
b) have sexual connection with the person
There are two types of intent. Intention to commit the act and intention to get a specific result.
R v Collister
Circumstantial evidence from which intent can be inferred:
1) offenders actions and words before/during/after
2) surrounding circumstance
3) nature of the act
Sexual connection appears only as a matter of intent, it is not necessary to prove they actually occurred or were even attempted
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
R v Waaka
Intent may be formed at any time during the taking away. If taking away commended 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
SEXUAL CONNECTION
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 tounge of one person and a part of another persons genitalia or anus, or
(c) The continuation of connection of a kind of described in paragraph a) or b)
With intent to
c) cause the person to go through a form of marriage or civil union or have sexual connection with some other person
Definition
R v Collister
Marriage and sexual connection appear only as matters of intent, it is not necessary to prove the actuallly occurred or were even attempted
Mohi
R v Waaka
Sexual connection
Explain doing it for another person
S 209, ca61
Kidnapping
- 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 for 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 New Zealand
With intent to
a) hold him or her for ransom or to service
There are two types of intent. Intention to commit the act and intention to get a specific result.
R v Collister
Circumstantial evidence from which intent can be inferred:
1) offenders actions and words before/during/after
2) surrounding circumstance
3) nature of the act
Ransom
Sum of money demanded or paid for the release of the captive prisoner
To service
The offenders intent is to keep the victim as a servant or slave
With intent to
b) cause him or her to be confined or imprisoned
There are two types of intent. Intention to commit the act and intention to get a specific result.
R v Collister
Circumstantial evidence from which intent can be inferred:
1) offenders actions and words before/during/after
2) surrounding circumstance
3) nature of the act
Confined
Restricting their movement within a geographical area.
Included curtailing their activity and exercising control and influence over them
Imprisoned
To put them in prison or to confine them as if in prison
With intent to
c) cause him or her to be sent or taken out of NZ
There are two types of intent. Intention to commit the act and intention to get a specific result.
R v Collister
Circumstantial evidence from which intent can be inferred:
1) offenders actions and words before/during/after
2) surrounding circumstance
3) nature of the act
Sent out
Intent is for the victim to leave NZ
Victim may be own there own, possibly under threat/duress
Taken out
Victim in company or custody of a person accompanying them out of Nz
S 210(1), ca 61
Abduction of Young Person Under 16
- 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
- Takes
Or
Entices away
Or
Detains - The young person
S 210(2), ca 61
Abduction of Young Person Under 16
- Receives
- A young person
- Knowing that he or she has been unlawfully taken/enticed away or detainedf with intent to deprive a parent or guardian or other person having the lawful care or charge of him/her of the possession of him/her
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
Intent
Definition and R v Collister
Depriving a parent of possession may not be the offenders primary intention, however they know that their actions will inevitably cause that outcome, then depriving the parent can also be said to have been intentional
Possession
R v Cox
Not necessary to prove the defendant intended a permanent deprivation
Entices away
To entice means to tempt, persuade or attract by arousing hope or desire
S210(3)(a)
For the purposes of 210(1) and 210(2)
It is immaterial whether the young person consents, or is taken or goes or is received at his/her own suggestion
And
Immaterial whether the offender believes the young g person to be of or over the age a16
Young person
R v Forrest and Forrest
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age
Receives
Receives.. knowing the young person has been unlawfully taken with the necessary intent
In each case will be a question of face and degree. Includes receiving physical custody of the 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 of the possession of him or her
Knowledge
The offender much know that the young person that are receiving has been abducted
Simester and Brookbanks
Knowing means knowing or correctly believing. You cannot know something that is false
What does section 209A state
For sections 208-210.. consent is not a defence where the person taken is under 16 years of age
A person under 16 cannot consent to be taken away or detained
Section 210(3)(b)
For purposes of 210(1) and (2)
Immaterial whether the offender believes the young person to of or over 16
