abduction/kidnapping

Question 1

Section 208 CA1961 - ingredients

Answer 1

• Unlawfully
• takes away or detains
• a person
• without his or her consent or with consent obtained by fraud or duress
• with intent to
  (a) marry him or her; or
  (b) have sexual connection with him or her; or
  (c) cause him or her to be married to or have sexual connection with some other person

Question 2

Unlawfully

Answer 2

Unlawfully means without lawful justification, authority or excuse

Question 3

Taking away

Answer 3

“taking away” generally refers to situations where the victim is physically removed from one place to another

Question 4

R v Wellard

Answer 4

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 5

R v Crossnan

Answer 5

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

Question 6

R v Pryce

Answer 6

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 7

Consent

Answer 7

Consent is a person’s conscious and voluntary agreement to do something desired or proposed by another.
In a criminal law context what is relevant is true or valid consent.
Consent may be conveyed by words or conduct or both.

Question 8

R v Cox

Answer 8

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

Question 9

Obtain consent by fraud

Answer 9

Consent obtained by the misrepresentation of the facts or the offenders intentions.

Question 10

Obtain consent by duress

Answer 10

Consent obtained by actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion

Question 11

intent

Answer 11

There are two types of intention in an offence

• there must be an intention to commit the act; and
• there must be an intention to get a specific result

Question 12

Intent - deliberate act

Answer 12

Intent means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Question 13

Intent - produce a result

Answer 13

The second type of intent is an intent to produce a specific result. In this context result means “aim, object or purpose”.

Question 14

Mohi

Answer 14

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 15

R v Waaka

Answer 15

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 16

Marry

Answer 16

In this context the term to marry means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.

Question 17

Cause to be married or have sexual connection with some other person

Answer 17

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 18

s208 Crown must prove

Answer 18

• The defendant took away / detained a person
• The taking/detention was intentional or deliberate
• The taking/detention was unlawful
• The taking/detention was without consent or with consent obtained by fraud or duress
• The defendant intended to:
  (a) marry the person or
  (b) have sexual connection with the person or
  (c) cause the person to be married to or have sexual connection with another person

Question 19

Ingredients of Kidnapping

Answer 19

• unlawfully
• takes away or detains
• a person
• without consent or with consent obtained by fraud or duress
• with intent to
  (a) hold him or her for ransom or to service or
  (b) to cause him or her to imprisoned or confined
  (c) to cause him or her to be sent or taken out of NZ

Question 20

Ransom

Answer 20

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

Question 21

To service

Answer 21

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

Question 22

To be confined

Answer 22

“confining” a person can include restricting their movements to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them

Question 23

To be imprisoned

Answer 23

To “imprison” a person means to put them in prison or to confine them as if in a prison. e.g. locked in a room or car boot.

Question 24

To be sent out of NZ

Answer 24

This relates to the offenders intent for the victim to leave NZ. Sent may include situations where the victim leaves NZ on their own, perhaps as the result of a threat or some other form of duress

Question 25

To be taken out of NZ

Answer 25

The word “taken” suggests that the victim is in the company or custody of a person accompanying them out of NZ

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