Kidnapping / Abduction General Knowledge

Question 1

What does unlawfully mean?

Answer 1

Without lawful justification or excuse

In cases of abduction and kidnapping, the prosecution must prove the act was unlawful beyond reasonable doubt.

Question 2

What are the two separate acts that give rise to different offences in abduction cases?

Answer 2

• Taking away
• Detaining

The prosecution should specify which act is being alleged, and if both are present, two charges should be laid.

R v Crossan

Question 3

In the case of R v Crossan, what was the defendant charged with?

Answer 3

He was charged with taking a woman away and detaining her

The Court of Appeal criticized the combination of both offences in a single count.

Question 4

According to R v Crossan, what constitutes the first offence?

Answer 4

Taking the victim away against her will

Detaining her against her will constitutes a new and different offence.

Question 5

What does taking away generally refer to?

Answer 5

Physically removing the victim from one place to another

Example: A baby taken from its mother at gunpoint.

Question 6

In R v Wellard, what did the man falsely claim to be?

Answer 6

A police officer looking for drugs

He misled the young woman into accompanying him, believing she had to follow his instructions.

Question 7

What is the essence of the offence of kidnapping?

Answer 7

Deprivation of liberty coupled with a carrying away from the place where the victim wants to be

This definition highlights the fundamental elements that constitute kidnapping.

R v Wellard

Question 8

Define detaining in the context of legal terminology.

Answer 8

To keep in confinement or custody

Detaining is an active concept, contrasting with mere harbouring or failure to hand over.

R v Pryce

Question 9

True or false: The Crimes Act specifies a minimum period for which a person’s freedom must be curtailed to be considered detained.

Answer 9

FALSE

The Act does not specify a minimum period; mere delay may not constitute detaining.

Question 10

What may not constitute detaining according to the Crimes Act?

Answer 10

• Mere delay
• Keeping back for a short or trifling period

There is a threshold where detention is too fleeting to be considered an intrusion.

Question 11

In legal cases, whether a person has been detained is determined by what?

Answer 11

A question of fact and degree based on the circumstances of each case

This emphasizes the subjective nature of determining detention.

Question 12

In the case of Boyd v R, what was the duration of the victim’s detention?

Answer 12

10 to 15 minutes

The Court found this period sufficient to constitute an intrusion due to the accused’s control over the victim.

Question 13

Is the age of the victim relevant to offences under sections 208 and 209?

Answer 13

No

The age of the victim is only relevant under section 210.

Question 14

What is the definition of consent in a criminal law context?

Answer 14

A person’s conscious and voluntary agreement to something desired or proposed by another

Relevant consent must be true or valid.

Question 15

According to R V Cox, consent must be full, voluntary, free and informed. What does this mean?

Answer 15

Freely and voluntarily given by a person in a position to form a rational judgment

Consent may be conveyed by words or conduct or both.

Question 16

What happens when consent is obtained by fraud?

Answer 16

The offender deceives the victim into agreeing to a proposition by misrepresenting facts or intentions

This can lead to criminal liability.

R v Wellard

Question 17

In R v Wellard, how did the offender gain the victim’s consent?

Answer 17

By representing himself as a police officer, which he was not

This case illustrates consent obtained through fraud.

Question 18

In R v Cort, what deceitful act did the offender commit?

Answer 18

He falsely told women that the bus had broken down and offered them a lift

This led to his conviction for kidnapping.

Question 19

True or false: In R v Cort, the women were harmed during the incident.

Answer 19

FALSE

The women were unharmed and the offender denied any sinister motive despite condoms, string, handcuffs, Stanley knife and tape being in his vehicle which he claimed were innocent.

Question 20

What is duress in the context of consent?

Answer 20

Obtaining consent based on fear of consequences if refused

Duress may arise from actual or implied threats of force or other forms of pressure.

Hirani v Hirani

Question 21

What is the critical question regarding duress?

Answer 21

Whether threats, pressure, or coercion destroy the reality of consent

This determines if the individual’s will was overborne.

Question 22

In criminal law, what are the two specific types of intention required for an offence?

Answer 22

• Intention to commit the act
• Intention to achieve a specific result

Question 23

In R v Mohi, what did the Crown have to prove regarding the abduction charge?

Answer 23

• Lack of consent to the taking away
• Lack of consent to the subsequent intercourse

The High Court held that the time of importance is that of the taking away.

Question 24

According to the High Court in R v Mohi, when is the offence of abduction considered complete?

Answer 24

At the time of taking away, with the necessary intent

The offender becomes criminally liable as soon as he detains the victim with one of the specified intents.

Question 25

True or false: In **R v Mohi**, the Crown must show that the intent was carried out for the abduction offence.

Answer 25

FALSE ## Footnote It has never been regarded as necessary for the Crown to show that the intent was carried out.

Question 26

In **R v Waaka**, what did the Court suggest about the formation of intent during the **taking away**?

Answer 26

Intent may be formed at any time during the taking away ## Footnote If intent is formed during the taking away, it is sufficient for the purposes of the section.

Question 27

Define **'sexual connection'** as per the statute.

Answer 27

* Connection by introduction into genitalia or anus * Connection between mouth or tongue and genitalia or anus * Continuation of such connection ## Footnote Defined under Section 2, Crimes Act 1961.

Question 28

True or false: **'Sexual connection'** includes genuine medical purposes.

Answer 28

FALSE ## Footnote The definition excludes connections for genuine medical purposes.

Question 29

What does the provision regarding **intent to cause P to go through a form of marriage** relate to?

Answer 29

Abduction or detention of a victim ## Footnote This includes situations like enforcing an arranged marriage.

Question 30

Under Section 209 of the Crimes Act 1961, what are the three intents that can lead to a charge of **kidnapping**?

Answer 30

* To hold for ransom or service * To cause confinement or imprisonment * To send or take out of New Zealand ## Footnote Each intent specifies the purpose behind the unlawful taking or detaining of a person.

Question 31

True or false: A person can be charged with **kidnapping** if they detain someone with their consent obtained by fraud.

Answer 31

TRUE ## Footnote Consent obtained by fraud is not considered valid under the law for kidnapping.

Question 32

Fill in the blank: **Section 209** of the **Crimes Act 1961** addresses the crime of __________.

Answer 32

kidnapping ## Footnote This section outlines the legal implications and penalties associated with kidnapping.

Question 33

What are the **actus reus elements** of kidnapping identical to?

Answer 33

Abduction ## Footnote The difference lies in the offender's intent.

Question 34

Is it necessary to prove that the **intent** of kidnapping was actually carried out?

Answer 34

No ## Footnote The offence is complete as soon as the victim is detained.

Question 35

What is the purpose of kidnapping often used for?

Answer 35

To extort money ## Footnote This is typically from the victim's family or those seeking their return.

Question 36

Define **ransom** in the context of kidnapping.

Answer 36

A sum of money demanded or paid for the release of a person ## Footnote This applies to individuals being held captive.

Question 37

What does **intent to hold him or her to service** refer to in kidnapping?

Answer 37

Keeping the victim as a servant or slave ## Footnote This provision addresses situations of servitude.

Question 38

What does **confining** a person include?

Answer 38

* Restricting movements within a geographical area * Curtailing activity * Exercising control and influence ## Footnote The term suggests the kidnapper must intend to be responsible for the victim's confinement.

Question 39

What does it mean to **imprison** a person?

Answer 39

To put them in prison or confine them as if in prison ## Footnote This has a narrower meaning than 'confine'.

Question 40

What does the term **sent** imply in the context of kidnapping?

Answer 40

The victim leaves New Zealand ## Footnote This may occur under threat or duress.

Question 41

What does the term **taken** suggest in the context of kidnapping?

Answer 41

The victim is in the company or custody of a person ## Footnote This refers to the victim being accompanied out of New Zealand.

Question 42

In the context of section 210, what does **'young person'** refer to?

Answer 42

A person under the age of 16 years ## Footnote This definition is crucial for the application of the law.

Question 43

True or false: It is material whether the young person **consents** to being taken under section 210.

Answer 43

FALSE ## Footnote Consent is immaterial in determining the legality of the act.

Question 44

What sections of the **Care of Children Act 2004** should be considered in relation to child custody disputes?

Answer 44

* Section 78: Contravening parenting order * Section 80: Taking child from New Zealand ## Footnote These provisions are relevant when considering charges under section 210.

Question 45

What is the intent required for someone to be liable under section 210 for **abduction**?

Answer 45

To deprive a parent or guardian of possession ## Footnote The intent must be to unlawfully take or detain the young person.

Question 46

What is the definition of **intent to deprive** a parent or guardian of a young person?

Answer 46

To take possession of a young person unlawfully, affecting the custodial rights of the parent or guardian ## Footnote This offence is categorized under 'crimes against the person' but targets custodial rights rather than the child directly.

Question 47

True or false: A parent can commit an offence against the section in respect of their own child if their actions are unlawful.

Answer 47

TRUE ## Footnote An example includes a father taking his child from the mother contrary to a court order.

Question 48

In the case of **R v Chartrand**, what was the defendant's argument regarding his intention?

Answer 48

He claimed his intention was not to deprive the parents of possession but to take photos as a surprise ## Footnote The court ruled that the defendant's motive was irrelevant to the offence.

Question 49

What did the court in **R v Chartrand** conclude about the necessity of proving permanent deprivation?

Answer 49

It is not necessary to prove the accused intended a permanent deprivation ## Footnote The court emphasized that even a temporary interference with possession suffices.

Question 50

Fill in the blank: The section also protects the rights of those having temporary lawful possession of a young person, such as _______.

Answer 50

Oranga Tamariki caregivers ## Footnote This highlights the importance of lawful custody in the context of the offence.

Question 51

What must the **prosecution** prove when age is an essential ingredient of a charge?

Answer 51

The victim's age at the time of the alleged offence ## Footnote This is typically done using the best evidence available, such as the victim's birth certificate.

Question 52

What is generally required to prove the victim's age in practice?

Answer 52

* Victim's birth certificate * Independent evidence identifying the victim ## Footnote Ideally, the independent evidence will be from a parent, but this is not always possible. R v Forrest and Forrest

Question 53

According to the Court of Appeal in **R v Forrest and Forrest**, what should be adduced by the prosecution?

Answer 53

The best evidence possible in the circumstances ## Footnote This includes additional testimony from the victim regarding her age.

Question 54

In **R v Clancy**, what evidence was deemed sufficient to prove the victim's age?

Answer 54

Evidence of the victim's date of birth given by her mother ## Footnote The victim's birth certificate was not produced in this case.

Question 55

In R v Cox, what are the **two elements** required to satisfy possession?

Answer 55

* Physical element * Mental element ## Footnote The physical element involves actual or potential custody or control, while the mental element combines knowledge and intention.

Question 56

What does the **physical element** of possession require?

Answer 56

* Actual custody * Potential custody ## Footnote Actual possession occurs when the item is in a person's physical custody, while potential possession refers to the ability to control the item.

Question 57

Define **actual possession**.

Answer 57

Actual possession arises when the item is in a person's physical custody or control ## Footnote This means the person has direct control over the item in question.

Question 58

Define **potential possession**.

Answer 58

Potential possession arises when a person has the potential to control the item ## Footnote Examples include storing the item at an associate's house or through an agent.

Question 59

What is the **mental element** of possession?

Answer 59

* Knowledge of possession * Intention to possess ## Footnote The mental element requires awareness that the item is possessed and the intention to exercise that possession.

Question 60

What does it mean to **entice** someone?

Answer 60

To tempt, persuade, or attract by arousing hope or desire ## Footnote This can include situations like a stranger tempting a child with sweets.

Question 61

What does subsection (2) create regarding **receiving a young person**?

Answer 61

The offence of receiving a young person knowing they have been unlawfully taken ## Footnote This applies if, for example, a father takes a child contrary to a court order and the grandparents hide the child.

Question 62

In the context of receiving a young person, what is required for liability?

Answer 62

Knowledge that the young person has been unlawfully taken ## Footnote This knowledge is crucial for the grandparents' liability in the example provided.

Question 63

What does **receiving** a young person include?

Answer 63

Receiving physical custody of the young person ## Footnote Several people could jointly 'receive' a young person for liability under this provision.

Question 64

According to Simester and Brookbanks, what does **knowing** mean?

Answer 64

'Knowing or correctly believing' ## Footnote The defendant may believe something wrongly, but cannot 'know' something that is false.

Question 65

To be liable under section 210(2), what must the offender know about the young person they are receiving?

Answer 65

That the young person has been abducted ## Footnote They must be correct about this fact; if the child has not been abducted, subsequent receiving is not an offence.

Question 66

What is the **statutory defence** provided under section 210A of the Crimes Act 1961?

Answer 66

Claiming in good faith a right to possession of a young person under 16 ## Footnote A person cannot be convicted of an offence against section 209 or section 210 for obtaining possession of the young person.

Question 67

In a defence under section 210A, who bears the burden of proof to negate good faith?

Answer 67

The prosecution ## Footnote They must negate good faith beyond reasonable doubt.

Question 68

What question will the jury consider regarding the defendant's belief in good faith?

Answer 68

Whether it is shown beyond reasonable doubt that the defendant did not believe in good faith they were entitled to possession ## Footnote This is separate from whether the defendant was actually entitled to possession.

Question 69

Under what circumstances is **consent** not a defence to charges under sections 208 - 210?

Answer 69

When the person taken is under the age of 16 years ## Footnote This applies specifically to the provisions outlined in the Crimes Act 1961.

Question 70

According to **Section 209A, Crimes Act 1961**, what is stated about a young person under 16?

Answer 70

Cannot consent to being taken away or detained ## Footnote This section emphasizes the legal incapacity of individuals under 16 to provide consent.

Question 71

True or false: A **mistake as to age** is a valid defence under Section 210(3)(b), Crimes Act 1961.

Answer 71

FALSE ## Footnote It is immaterial whether the offender believes the young person to be of or over the age of 16.

Question 72

What does **Section 127, Crimes Act 1961** state about presumption of incapacity due to age?

Answer 72

No presumption of law that a person is incapable of sexual connection because of his or her age ## Footnote This section clarifies that age alone does not determine legal capacity for sexual connection.