Kidnapping/Abduction Flashcards
(33 cards)
Elements and section of abduction
Section 208 CA61
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, OR
(c) cause the person to go through a form of marriage OR civil union, OR to have sexual connection, with some other person
14 yrs
Kidnapping elements and section
S209 CA61
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
14yrs
Abduction of a young person under 16 (deprive) - elements and section
s210(1)
With intent to deprive
- a parent OR a guardian OR other person having the lawful care or charge of a young person
of the possession of the young person
Unlawfully
Takes away OR entices away OR detains
The young person
- It is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and
- it is immaterial whether the offender believes the young person to be of or over the age of 16
7 years
Abduction of a young person under 16 (receives) - elements and section (not a liability)
S210(2)
Receives
A young person
Knowing that he or she has been
- unlawfully taken away 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
- It is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and
- it is immaterial whether the offender believes the young person to be of or over the age of 16
7 years
Definition of unlawfully
Without lawful justification or excuse
Case law - taking away and detaining
R v Crossan
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”
Definition of taking away
Physically removed from one place to another
Definition of detaining
An active concept rather than a passive one. It involves doing something to impose a constraint or restraint on the person detained
Case law - kidnapping and abduction
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”
Case law - detaining
R v Pryce
Detaining is an active concept meaning to “keep in confinement or custody”.
Definition of consent
A person’s conscious and voluntary agreement to something desired or proposed by another
Case law - consent
R v Cox
Consent must be “full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgement”
Consent by fraud
Deception of the victim into agreeing to a proposition by misrepresenting the facts or their intentions
Consent by duress
A victim may acquiesce to an offender’s demands based on fear of the consequences if they refuse.
May arise from the actual or implied threat of force to the victim or other person but can also include other forms of pressure or coercion
The critical question in relation to duress is whether the threats, pressure or coercion are such that they destroy the reality of consent and overbear/override the will of the victim
Definition of intent
Intention to commit the act and an intention to get a specific result
Definition of result
Aim, object or purpose
(Simester and Brookbanks)
Case law - intent
R v Collister
Circumstantial evidence from which an offender’s intent may be inferred can include:
- the offender’s actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself
Case law - completion of offence
R v Mohi
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 as necessary that the Crown should show the intent was carried out)
Definition of 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 tongue of one person and a part of another person’s genitalia or anus; or
(c) the continuation of connection of a kind described in paras (a) or (b)
Definition of ransom
A sum of money demanded or paid for the release of a person being held captive
Definition of holding to service
Intent is to keep the victim as a servant or slave
Definition of confining
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
Definition of imprison
To put them in prison, or confine them as if in prison.
e.g. locked in a room, boot of a car
narrower meaning than confine
Sent vs taken out of NZ - explanation
Sent - offender’s intent is for the victim to leave NZ
Taken - the victim is in the company or custody of a person accompanying them out of NZ
