What is the legislation for Abduction (s208)?
- Everyone is liable to a term of imprisonment for 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress, -
a. With intent to marry him or her; or
b. With intent to have sexual connection with him or her; or
c. With intent to cause him or her to be married or to have sexual connection with some other person.
what are the elements of abduction?
- Unlawfully
- Takes away or detains
- A person without their consent, or with consent obtained by fraud or duress
- With intent to marry him/her, have sexual connection with him/her, with intent to cause to be married or have sexual connection with some other person.
What is the definition of unlawfully?
without lawful justification, authority or excuse.
What is held regarding taking away vs detaining? What is the case law?
(R v Crossnan)
Taking away and detaining are separate and distinct offences. The first consists of taking the victim away and the second of detaining her.
How can taking away be defined?
generally refers to situations where the victim is physically removed from one place to another.
What is the case law regarding taking away?
(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.
What is the case law regarding detaining?
(R v Pryce)
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.
What is the case law regarding 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.”
When is the offence of taking/abduction complete? What is the case law?
(R v 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.
What is the case law regarding intent for taking away?
(R v Waaka)
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.
What must be proved for kidnapping? What is the case law?
(R v M)
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.
What is the definition of ransom?
a sum of money demanded or paid for the release of a person being held captive.
What is the definition of confined vs imprison?
Confined – “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.
Imprison – means to put a person in a prison, or to confine them as if in a prison.
What is the legislation for kidnapping (s209)?
- Everyone is liable to a term of imprisonment of 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress, -
a. With intent to hold him or her for ransom or to service; or
b. With intent to cause him or her to be confined or imprisoned; or
c. With intent to cause him or her to be sent or taken out of NZ.
what are the elements of kidnapping?
- Unlawfully
- Takes away or detains
- A person without their consent, or with consent obtained by fraud or duress
- With intent to hold him/her for random or to service, with intent to cause him/her to be confined or imprisoned, with intent to cause him/her to be sent or taken out of NZ
what is the legislation for Abduction of a YP Under 16 (s210)?
- Everyone is liable to a term of imprisonment of 7 years who, 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 away or entices away or detains the young person.
- Everyone who receives a 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.
What is the case law regarding proof of age?
(R v Forrest and Forrest)
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victims] age.
What are not defences for abduction of a YP?
consent is not a defence as a person under 16 cannot consent to being taken away or detained.
Belief that person is over 16 – it is immaterial whether the offender believes the YP to be of or over 16.
What is a defence for abduction of a YP?
Defence of good faith – a person who claims in good faith to a right of possession of a YP cannot be convicted. It is up the prosecution to negate good faith beyond reasonable doubt.
How would you define migrant smuggling and people trafficking?
Migrant smuggling – involves a person who has freely consented to be brought into NZ as an illegal immigrant and is not subjected to coercion or deception.
People trafficking – involves a person who is brought into NZ by means of coercion and/or deception. People are often trafficked in order to exploit them in the destination country.
What are the differences between migrant smuggling and people trafficking?
consent, the purpose of the travel or movement, the relationship between the person moved and the people enabling movement, violence, intimidation or coercion, liberty, profit.
What are the different investigative approaches for migrant smuggling and people trafficking?
- Reactive investigation – victim led and often initiated by an approach to Police.
- Proactive investigation – Police led using investigation techniques to identify traffickers and instigate proceedings.
- Disruptive investigation – appropriate where the level of risk to the victim demands an immediate response.
What are the penalties for migrant smuggling and people trafficking?
20 years imprisonment, a $500,000 fine or both
Is Governor General approval required for offences under s98C and s98D?
approval is required from the Governor General to prosecute for offences under sections 98C and 98D but do not need approval to arrest and oppose bail.
