Abduction/Kidnapping Flashcards
Ingredients for Abduction
• Everyone who • Unlawfully • Takes away / Detains • A person • Without their consent / with consent obtained by Fraud or Duress • With intent to: o Marry him/her o Have sexual connection with him/her o To cause him/her to be married o To cause him/her to have sexual connection with some other person
Ingredients for Kidnapping
• Everyone who
• Unlawfully
• Takes away / Detains
• A person
• Without their consent / with consent obtained by Fraud or Duress
• With intent to:
o Hold him/her for ransom / to service
o Cause him/her to be Confined / Imprisoned
o Cause him/her to be sent / taken out of NZ
Ingredients for Abduction of young person under 16
• Everyone who • With intent to deprive o Parent o Guardian o person having lawful care / charge of • A young person • Of the possession of the young person • Unlawfully • Takes away / Detains • Young person
(2) Receives young person knowing he/she has been unlawfully taken away/detained
Immaterial whether young person consents, or is received at their own suggestion
Immaterial whether offender believes they are over 16.
Case law - R v mohi
The offence is committed at the time of taking away, with the necessary intent.
Crown needn’t show intent was carried out.
MOHI, MOHAIR – from an angora goat – intends to shave the goat at the time of taking him away
Case law - R V Crossan x
Taking away and detaining are “separate and distinct offences”.
(First offence was complete victim was taken away against her will. Second when she was detained against her will – new/different offence. ) the offences “cross” over.
Case law -R v Wellard x
Kidnapping = deprivation of liberty AND a carrying away from the place where the victim wants to be.
(It’s WELL HARD… to carry a person away)
Case law - R v Pryce
Detain = Active concept, “keep in confinement or custody”.
It’s not Passive = “harbouring or failing to hand over.
(Pryce, price, money = ransom.)
Case law -R v COX (1)
Consent must be full, voluntary, free and informed.
Freely and voluntarily given by a person in a position to form a rational judgment.
(Lots and lots of cocks - no one is going to give full, voluntary, free or informed consent for lots of cocks)
Case law -R v COX (2)
Possession = 2 elements.
- Physical element: actual or potential physical custody or control
- Mental element: combination of knowledge and intention, knowledge something is in his possession, intention to exercise possession.
(perhaps think of a male with his ‘member’ – he has physical control over it, and has an intention to exercise his possession… you do the math)
Case law - R v FORREST & FORREST
Proof of age = Producing birth certificate & evidence that victim is person named in birth certificate.
(forrest, trees, paper, birth cert.)
Person
A “person” is generally proven by judicial notice or by circumstantial evidence.
Without his or her consent -Consent
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
With his or her consent obtained by fraud -Consent
In some cases the offender may deceive the victim into agreeing to a proposition by misrepresenting the facts or their intentions. E.g pretending to be Police
Duress
A victim may acquiesce to an offender’s demands based on fear of the consequences if they refuse.
Duress may arise from the actual or implied threat of force to the victim or another person
(acquiesce - accept something reluctantly but without protest.)
GTK - The critical question in relation to duress is whether the threats, pressure or coercion were such that they destroy the reality of consent and overbear the will of the individual.
Intent
There are two specific types of intent in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.
