Abduction & kidnapping

Question 1

Define “Taking away”

Answer 1

Physically removed from one place to another.

Deprivation of liberty coupled with the carrying away from a place where the victim wants to be. (R v Wellard)

Question 2

Define “Detains”

Answer 2

Detaining is an active concept. Doing something to impose constraint or restraint.

Detaining is an active concept meaning to keep in “confinement and custody.” this is to be contrasted to the passive concept of “harbouring” or the mere failure to hand over. (R v Pryce)

Question 3

Kidnapping Ingredients

Answer 3

Kidnapping s209 CA61
Unlawfully
Takes away or Detains
A person
Without his or her consent or With his or her consent obtained by fraud or duress
With intent to -
Hold him/her for Ransom or to Service
Cause him/her to be Imprisoned or Confined
Cause him/her to be Sent or Taken out of NZ

Question 4

What are the three intents for Abduction

Answer 4

With intent to:

1. Marry him/her
2. Have sexual connection with him/her
3. Cause him/her to be married to OR Cause him/her to have sexual connection with some other person.

Question 5

What is s209A?

Answer 5

A person under the age of 16 cannot consent to being taken away or detained

Question 6

R v Wellard

Answer 6

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

Question 7

Define “Consent”

Answer 7

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

Question 8

Define R v Cox (consent)

Answer 8

Consent must be freely and voluntarily given by a person in a position to form a rational judgement

Question 9

What is R v Mohi in relation to intent?

Answer 9

The offence is committed at the time of the taking away, so long as there is, at that moment, the necessary intent

Question 10

What are the three intents of kidnapping?

Answer 10

• Intent to hold him/her for ransom or service
• Intent to cause him/her to be confined/imprisoned
• Intent to cause him/her to be sent/taken from New Zealand

Question 11

Is the Consent of a young person a defence for the charge of Abduction or Kidnapping?

Answer 11

Consent is not a defence for charges under 208-210 when the person taken is under 16.

As per s 209A, CA61, a person under the age of 16 cannot consent to being taken away or detained

Question 12

R v Cox

Answer 12

Two elements.
Physical element of actual or potential custody or control. Mental element being knowledge of the possession and intention to keep possession.

Question 13

R v Pryce

Answer 13

Detaining is an active concept meaning to keep in “confinement and custody.” this is to be contrasted to the passive concept of “harbouring” or the mere failure to hand over.

Question 14

Define Section 210A, CA61

Answer 14

“Good Faith” defence.

When someone believes they have a right to that child. i.e Custody matters

Question 15

R v Mohi

Answer 15

The offence is committed at the time of the taking away, so long as there is at that moment, the necessary intent…it is not necessary for the down should show the intent was carried out.

Question 16

R v Crossan

Answer 16

“Taking away” and “Detains”are two seperate and distinct offences. The first offence was taking away; the second of detaining her.

Question 17

R v Forrest & Forrest

Answer 17

The best evidence possible in the circumstances should be adduced (cited as evidence) by the prosecution in proof of the [the victims] age.

Question 18

Define “Possession”

Answer 18

Two elements.
Physical element of actual or potential custody or control. Mental element being knowledge of the possession and intention to keep possession. R v Cox

Question 19

How do we prove age?

Answer 19

The best evidence possible in the circumstances should be adduced (cited as eividence) by the prosecution in proof of the [the victims] age.

Question 20

How do we prove “intent”

Answer 20

1. The offenders actions before, during and after the event.
2. The surrounding circumstances.
3. The nature of the act itself.

The defendants intent can be inferred from the circumstances. R v Collister

Question 21

When is kidnapping/abduction complete

Answer 21

The offence is committed at the time of the taking away, so long as there is at that moment, the necessary intent…it is not necessary for the down should show the intent was carried out.

Question 22

‘Cause to be married’

Answer 22

The abducter ‘takes’ away or ‘detains’ a victim to enable another person to marry them I.e arranged marriage.

Question 23

Define ‘intent’

Answer 23

Two types of intention in an offence.

1. Intention to commit a specific act.
2. Get a specific result.

The defendants intent can be inferred from the circumstances. R v Wellard.

Question 24

‘Consent by ‘duress’

Answer 24

Consent obtained by actual or implied threat of force to the victim or another person. Can include any form of coercion.

Question 25

Consent by ‘fraud’

Answer 25

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

Question 26

‘Unlawfully’

Answer 26

Without lawful justification or excuse.

Question 27

Abduction ingredients

Answer 27

Abduction
Sec 208 (c) CA61

1. Unlawfully
2. Takes OR Detains
3. A person
4. Without his/her consent OR with his/her consent obtained by fraud or duress
   5 with intent to:
   (a) Marry him/her
   (b) have sexual connection with him/her
   (c). cause him/her to be married to OR cause him/her to have sexual connection with some other person.