7.4.20 Kidnapping (Statutory) 1

7.4.20 Kidnapping (Statutory) 1

7.4.20 – Kidnapping (Statutory)[1]

Overview

  1. The offence of kidnapping is created by Crimes Act 1958 s63A.
  2. The common law offence of kidnapping continues to exist, despite the statutory kidnapping offence (R v Nguyen [1998] 4 VR 394). For information on the common law offence, see #Kidnapping (Common Law).

Elements

  1. Statutory kidnapping has the following two elements:

a) The accused lead, took or enticed away or detained a person;

b) The accused did so either:

i) With the intent to demand from that person or any other person any payment by way of ransom for the return or release of that person; or

ii) With intent to gain for him or herself or any other person an advantage, however arising, from the detention of that person (Crimes Act 1958 s63A).

  1. The purpose of the provision is to prevent the interference with the liberty of the victim for the purpose of obtaining an advantage (Davis v R [2006] NSWCCA 392).
  2. Kidnapping is a continuing offence that begins when the victim is initially taken away, and ends when the victim is released. The primary offender is liable at the moment the victim is taken or detained with the necessary intent. Despite that, a secondary offender may be liable for kidnapping by participating in the continued detention of the victim, even if he or she was not involved in initially detaining the victim, provided all the elements are established (see Davis v R [2006] NSWCCA 392; R v Vu [2011] BCCA 112; Charlesworth v R [2009] NSWCCA 27; R v Manwaring [1983] 2 NSWLR 82).
  3. Where the accused takes the victim away and detains him or her, the jury may find the accused guilty of statutory kidnapping if satisfied that the necessary intent was formed during the detention, even if the accused did not have that intention at the time of taking the person away (R v Rowe (1996) 89 A Crim R 467).

Taking or enticing away or detaining of a person

  1. The first element of kidnapping can be satisfied in four different ways. The jury may find that the accused:
  2. Lead a person away;
  3. Took a person away;
  4. Enticed a person away; or
  5. Detained a person (Crimes Act 1958 s63A).
  6. Section 63A does not create multiple separate offences. Instead, the first element can be performed in any of four different ways, and the prosecution may particularise more than one form of interference with liberty, such as that the accused took and detained the victim (Davis v R [2006] NSWCCA 392).
  7. However, while any of those four forms of conduct may constitute the first element, the judge must direct the jury only on the forms of conduct specified by the prosecution and should not include forms of conduct not specifically alleged (R v DMC (2002) 137 A Crim R 246).
  8. Unlike the common law offence of kidnapping, section 63A does not require proof that the offender carried the victim away. It includes culpability on the basis of detention alone (Davis v R [2006] NSWCCA 392).
  9. For the accused’s conduct to amount to “taking away”, that conduct must be an effective cause of the victim accompanying the accused to another place (R v Wellard [1978] 1 WLR 921; Davis v R [2006] NSWCCA 392; R v Fetherston [2006] VSCA 278).
  10. This can also be expressed as a requirement that the victim was taken away from the place s/he wished to be (R v Wellard [1978] 1 WLR 921).
  11. Where the prosecution particularises its case on the basis of “detaining”, it must prove that the victim did not consent to the detaining and that the accused did not believe that the complainant was willing or consenting (R v DMC (2002) 137 A Crim R 246). It is not clear whether the prosecution must prove an absence of consent in relation to the other forms of conduct.
  12. The offence concerns the fact of interference with the liberty of the victim, rather than the duration or magnitude of that interference. Where in issue, the sufficiency of the distance travelled, or the length of time the person is detained, is a jury question and to be decided on the facts of each case (R v Wellard [1978] 1 WLR 921; Davis v R [2006] NSWCCA 392; R v Campbell and Brennan [1981] Qd R 516).
  13. The offence is committed when accused leads, take or entices the victim away from the place the victim wished to be. It is not necessary to show that the victim reached the destination the kidnapper intended (R v Wellard [1978] 1 WLR 921).
  14. An accused cannot rely on a claim of right to justify the detention of a person in order to enforce a debt. The circumstances in which a person has a lawful power to detain another are limited, and include the relationship of parent or guardian and child, or a lawful power to arrest or detain (Williams v R [2006] NSWCCA 26).

Intention

  1. The second element concerns the offender’s intention. Section 63A specifies two forms of intention that may establish the offence.

Intent to demand a ransom

  1. The first way to establish the second element is to show that the offender intended to demand payment by way of ransom for the release or return of the victim (Crimes Act 1958 s63A).
  2. Demand for ransom from a ‘person’ may include a demand made to the State and arguably other organisations that that are not natural persons (R v Boland [1974] VR 849; Austin v R (1988) 49 SASR 108).
  3. The demand may also be made to the person who was detained or taken away or to a third person (Crimes Act 1958 s63A; R v Campbell & Brennan [1981] Qd R 516).
  4. It is not necessary to show that any demand or threat was actually made, or that it reached its intended recipient (Crimes Act 1958 s63A; Austin v The Queen (1989) 166 CLR 669).

Intent to gain an advantage

  1. The second way in which the prosecution may prove the second element is to show that the offender intended to gain an advantage from the detention of the victim (Crimes Act 1958 s63A).
  2. This basis of proving the second element is therefore limited to cases in which the prosecution proves the first element by showing that the accused detained the victim. Merely luring or taking the victim away will not provide the factual basis for meeting this element without also proving that the victim was detained (see Crimes Act 1958 s63A and R v Hendy-Freegard [2008] QB 57). See False Imprisonment for information on when a person is detained.
  3. The advantage need not be a pecuniary one and may be satisfied in a variety of ways. It can include psychological satisfaction from spending time in the company of the victim or sexual gratification (R v Nguyen [1998] 4 VR 394; R v Robson & Collett [1978] 1 NSWLR 73; R v Stuart, NSW DC, 20/5/1976; Davis v R [2006] NSWCCA 392; R v Rowe (1996) 89 A Crim R 467; R v Rose [2003] NSWCCA 411).
  4. The advantage may be obtained from the victim of the detention and the offence is not limited to an intention to gain an advantage from a third person (R v Robson & Collett [1978] 1 NSWLR 73).
  5. An intent to prevent a disadvantage (such as preventing a victim from escaping who could otherwise inform police of the offender’s location) may be treated as an intent to gain an advantage (R v Robson & Collett [1978] 1 NSWLR 73).
  6. The process of detaining the victim may itself provide an advantage, such as where a kidnapper demands transportation from the victim (R v Campbell & Brennan [1981] Qd R 516).

[1] This document was last updated on 2 December 2013.

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