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7.4.19 - Kidnapping (Common Law)

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Scope

  1. Kidnapping is both an offence under the common law and an offence contrary to Crimes Act 1958 s63A.[1]
  2. This topic looks at the common law offence.[2] For an examination of the statutory offence see Kidnapping (Statutory).

    Overview

  3. Kidnapping at common law has the following five elements:
    1. The accused took or carried that person away;
    2. The accused deprived another person of his or her liberty
    3. The accused did this by force or fraud;
    4. The person taken or carried away did not consent to that conduct; and
    5. The accused acted without lawful justification or excuse (R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394; R v McEachran (2006) 15 VR 615; R v Hendy-Freegard [2008] QB 57; R v Vu [2011] BCCA 112).
  4. While it has been suggested that the element of taking or carrying away is the only matter that distinguishes kidnapping from false imprisonment, this Charge Book refers to the traditional elements of kidnapping, rather than treating the offence as an aggravated form of false imprisonment (see Davis v R [2006] NSWCCA 392).
  5. The elements of the offence are the same regardless of the victim’s age (R v Nguyen [1998] 4 VR 394; Evans v His Honour Judge Shelton [1998] VSCA 29).
  6. Kidnapping is a continuing offence that begins when the victim is initially taken away, and ends when the victim is released. It is not necessary to separately charge false imprisonment when the victim taken away and then detained at a fixed location. In addition, a co-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 taking the victim (see Davis v R [2006] NSWCCA 392; R v Vu [2011] BCCA 112).

    Taking or Carrying Away

  7. For the first element to be met, the jury must be satisfied that the accused took or carried the victim from one place to another (R v Wellard [1978] 1 WLR 921; R v Reid [1973] QB 299; R v Hendy-Freegard [2008] QB 57; R v Vu [2011] BCCA 112; R v Pollitt (2007) 97 SASR 332; R v Fetherston [2006] VSCA 278).
  8. 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. It is not necessary to prove that the accused physically “carried away” or otherwise physically “removed” the victim (R v Wellard [1978] 1 WLR 921; Davis v R [2006] NSWCCA 392; R v Fetherston [2006] VSCA 278).
  9. 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).
  10. The victim does not have to be taken away any great distance, but there must be sufficient movement from where the victim wished to be for the conduct to amount to a “carrying away”. Where in issue, the sufficiency of the distance travelled 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).
  11. The offence is committed when accused takes the victim away from the place the victim wished to be. It is not necessary to show that the victim was taken to the place the kidnapper intended (R v Wellard [1978] 1 WLR 921).

    Deprivation of Liberty

  12. For the second element to be met, the jury must be satisfied that the accused deprived the victim of his or her liberty (R v Hendy-Freegard [2008] QB 57; R v Tremblay (1997) 117 CCC (3d) 86. See also R v D [1984] AC 778; R v Wellard [1978] 1 WLR 921).
  13. A misrepresentation to the effect that the accused has lawful authority to direct a person’s movements may be sufficient to deprive the person of their liberty. However a misrepresentation that induces the other person to choose to go to or stay at a particular place will not establish this element (R v Hendy-Freegard [2008] QB 57).
  14. For information on the meaning of deprivation of liberty, see False Imprisonment.

    By force or by fraud

  15. The third element of kidnapping requires the prosecution to prove that the accused committed the conduct constituting the first and second elements “by force or fraud” (R v Wellard [1978] 1 WLR 921; R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394; R v McEachran (2006) 15 VR 615; R v Hendy-Freegard [2008] QB 57).
  16. It has been questioned whether this should be treated as a separate element or simply as part of the fourth element requirement that the “carrying away” be without consent. However, it currently remains a separate element (R v Nguyen [1998] 4 VR 394).[3]

    Kidnapping by Force

  17. Force may be understood to mean “a hostile intent calculated to cause apprehension in the mind of a complainant, together with the acts that caused the complainant to apprehend immediate and unlawful violence” (R v Pollitt (2007) 97 SASR 332 at 346).
  18. There is no legal standard for the minimum physical contact capable of constituting a “use of force”. If placed in issue, it is for the jury to determine whether a particular physical contact amounts to a “use of force” (R v Dawson & James (1976) 64 Crim App R 170).
  19. It is not necessary to show that the accused physically carried the victim off. For the purpose of kidnapping, force includes a threat of force (R v Wellard [1978] 1 WLR 921; R v Pollitt (2007) 97 SASR 332).

    Kidnapping by Fraud

  20. The form of fraud relied upon must be a kind of fraud which vitiates the consent of the victim, as the prosecution must show that the conduct was against the will of the victim (R v Gallup [2002] ABQB 638; Go v R (1990) 73 NTR 1; R v Awang [2004] 2 Qd R 672).
  21. Where fraud is relied upon, it must be a positive misrepresentation rather than just the suppression of the truth (R v Cort [2003] 3 WLR 1300).
  22. Kidnapping by fraud can raise difficult issues associated with other elements of the offence in particular circumstances. Judges will need to consider whether the fraud affects the issue of whether the victim was deprived of his or her liberty and whether the fraud vitiates consent.[4]

    Absence of Consent

  23. The fourth element of the kidnapping requires that the deprivation of liberty and the taking away were against the will of the victim (R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394; R v McEachran (2006) 15 VR 615; R v Hendy-Freegard [2008] QB 57).
  24. The prosecution must prove that there was not informed consent which was freely and voluntarily given. Submission, or consent that is vitiated by fraud, does not disprove this element (R v Gallup [2002] ABQB 638).
  25. Regardless of the age of the alleged victim, in all cases the jury must consider whether the alleged victim consented to the kidnapping. Consent of the parent of a child under the age of discretion is relevant only to the extent that it may separately provide a lawful excuse (R v Hendy-Freegard [2008] QB 57; R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394; Evans v Shelton [1998] VSCA 29; c.f. R v Gallup [2002] ABQB 638).
  26. Even if consent is vitiated by fraud, the jury must still consider whether the taking away involved a deprivation of liberty. In some cases, a fraudulent ruse that leads someone to go to another place does not involve a deprivation of liberty (R v Hendy-Freegard [2008] QB 57).

    Consent by children

  27. The relevant state of consent is that of the person taken or carried away, even where that person is a very young child. At no point does this element depend upon the consent of a third party, such as the parent or guardian of a child (R v D [1984] AC 778).
  28. As the element concerns the absence of consent, proof that the victim is incapable of consenting will establish this element. In the case of a very young child, a jury may readily infer that the child was incapable of consenting. For older children, the jury must consider whether the child had sufficient understanding and intelligence in order to consent (R v D [1984] AC 778).
  29. The absence of consent may be a necessary inference from the age of a child who is very young and does not have the understanding or the intelligence to consent (R v D [1984] AC 778).
  30. If capacity to consent is in issue (for example, for older children) it is a jury question. If the jury is satisfied that the child does have capacity to consent the jury must then consider whether it is satisfied that the child did in fact give consent. There is no arbitrary “age of discretion” (R v D [1984] AC 778).

    Without lawful excuse

  31. The final element of the offence is that the offender acted without lawful excuse (R v D [1984] AC 778).
  32. Consent by the lawful guardian of a child may provide a lawful excuse, though there is little clear guidance on when consent of the guardian will be relevant.[5] As the parent of a child may be guilty of kidnapping the child, there are circumstances where consent of the parent is not a lawful excuse (See R v Hendy-Freegard [2008] QB 57; R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394; Evans v Shelton [1998] VSCA 29).
  33. The relationship of husband and wife does not provide a lawful excuse for kidnapping (R v Reid [1973] QB 299; R v C (1981) 3 A Crim R 146).

    Obsolete Elements of the Offence

  34. While it is no longer an element of the offence that the victim is taken to a place outside the “country” (or jurisdiction), such conduct may be an aggravating feature for the purpose of sentencing (R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394).
  35. “Secreting” the person is also no longer a further or alternative element of the offence (R v D [1984] AC 778; R v Reid [1973] QB 299).

    Notes

[1] The enactment of Crimes Act 1958 s63A did not abolish the common law offence (R v Nguyen [1998] 4 VR 394; Evans v His Honour Judge Shelton [1998] VSCA 29).

[2]For a detailed discussion of the history of the offence of kidnapping see R v D [1984] AC 778; R v Nguyen [1998] 4 VR 394 at 407-411.

[3] In the case of very young children, courts may be willing to adopt a wide definition of fraud, due to the risk of a child willingly accompanying a stranger who merely asks the child to do so without any force or fraud (See R v Gallup [2002] ABQB 638).

[4] For example, a person might, by fraud, induce another person to travel to another location. Depending on the nature of the fraud, this may or may not involve a deprivation of liberty and so that part of the first element might not be met (see R v Hendy-Freegard [2008] QB 57).

[5] Kidnapping by one parent in the context of family law disputes should generally be dealt with as a contempt of court if there are relevant family law orders. The matter should be treated as kidnapping only if the conduct of the parent was so serious that the ordinary person would regard it as criminal (R v D [1984] AC 778).

Last updated: 18 November 2013

In This Section

7.4.19.1 - Charge: Kidnapping (Common Law)

7.4.19.2 - Checklist: Kidnapping (Common Law)

See Also

7.4 - Other Offences Against the Person

7.4.1 - Intentionally Causing Serious Injury in circumstances of gross violence

7.4.2 - Intentionally Causing Serious Injury

7.4.3 - Intentionally Causing Injury

7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

7.4.5 - Recklessly Causing Serious Injury

7.4.6 - Recklessly Causing Injury

7.4.7 - Negligently Causing Serious Injury

7.4.8 - Common Law Assault

7.4.9 - Statutory Assault

7.4.10 - Threats to Kill

7.4.11 - Threats to Inflict Serious Injury

7.4.12 - Stalking (From 7/6/11)

7.4.13 - Stalking (10/12/03 - 6/6/11)

7.4.14 - Conduct Endangering Life

7.4.15 - Conduct Endangering Persons

7.4.16 - Extortion

7.4.17 - False Imprisonment

7.4.18 - Child Stealing

7.4.20 - Kidnapping (Statutory)

7.4.21 – Common law riot

7.4.22 - Affray