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7.4.19.1 - Charge: Kidnapping (Common Law)

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When to use this charge

This charge can be used when the accused is charged with kidnapping at common law. If the accused is charged with kidnapping under Crimes Act 1958 s63A, use Charge: Kidnapping (Statutory) instead.

The Elements

I must now direct you about the crime of kidnapping. That crime has the following five elements:

One – The accused took or carried the complainant away.

Two – The accused deprived the complainant of his or her liberty.

Three – The accused did this by force or fraud.

Four – The complainant did not consent.

Five – The accused acted without lawful justification or excuse.

Before you can find NOA guilty of kidnapping you must be satisfied that the prosecution has proved all five of these elements beyond reasonable doubt.

I will now explain each of these elements in more detail.

Take or Carry Away

The first element that the prosecution must prove is that the accused took or carried NOC away.

The words “took” and “carried” are ordinary words that have their ordinary meaning. The element looks at whether NOA took NOC from where s/he wished to be to some other place.

[If the NOA only took NOC a short distance, add the following shaded section.]

The law does not proscribe a minimum distance that must be travelled before this element may be met. It is a matter for you to consider whether NOA took NOC far enough from where NOC wished to be that you can say the accused took or carried him/her away.

[Summarise competing prosecution and defence evidence and arguments]

Deprivation of liberty

The second element that the prosecution must prove is that the accused deprived another person of his or her liberty.

To establish this element, the prosecution must show that NOA prevented NOC from freely moving from one place to another.

[If the reasonableness of any means of escape are in issue, add the following shaded section]

In deciding whether NOA deprived NOC of his/he liberty, you must consider whether NOC had a reasonable means of escape. A person who has a reasonable means of escape is not unlawfully imprisoned. To determine whether a means of escape was reasonable, you must consider [describe factors relevant to the reasonableness of escape, including risks to the victim, risks to property, distance and time required to escape and the legality of the means of escape].

[Summarise competing prosecution and defence evidence and arguments]

Force or Fraud

The third element that the prosecution must prove is that the accused deprived NOC of liberty and took or carried him/her away by force or fraud.

[Summarise competing prosecution and defence evidence and arguments]

Without consent

The fourth element that the prosecution must prove is that the accused deprived NOC of liberty and took or carried him/her away without consent. That is, the conduct alleged must have occurred against the will of the complainant.

[If fraud is capable of vitiating consent, add the following shaded section.]

In this case, the prosecution have argued that while NOC willingly accompanied NOA, this consent was obtained by fraud and should not be treated as real and effective consent. If you find that NOC only accompanied NOC because [describe factual findings necessary for fraud to vitiate consent, e.g. “NOA impersonated a police office and told NOC that s/he must go with him/her to the police station”], then you may find this fourth element proven.

[If the complainant is a young child, add the following shaded section.]

As NOC is a child of [insert age of child], there are two matters you should consider when determining whether the prosecution has proven this element. First, you should consider whether NOC was old enough to have sufficient understanding and intelligence that s/he was capable of consenting. If you find that NOC did not have sufficient maturity to be capable of freely agreeing to being deprived of his/her liberty and taken or carried away, then you may find this element proven. Secondly, if you find that NOC did have sufficient understanding and intelligence to be capable of consenting, then you must consider whether the prosecution has proved that s/he did not consent to being deprived of his/her liberty and taken or carried away.

[Summarise competing prosecution and defence evidence and arguments]

Without lawful excuse

The fifth element that the prosecution must prove is that the accused acted without lawful justification or excuse.

This means that the prosecution must prove that [describe facts required to disprove any alleged lawful excuse].

[Summarise competing prosecution and defence evidence and arguments]

Summary

To summarise, before you can find NOA guilty of kidnapping the prosecution must prove to you beyond reasonable doubt:

One – That NOA deprived NOC of his/her liberty;

Two – That NOA took or carried away NOC;

Three – That NOA did so by force or fraud;

Four – That NOC did not consent;

Five – That NOA acted without any lawful justification or excuse.

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of kidnapping.

Last updated: 18 November 2013

See Also

7.4.19 - Kidnapping (Common Law)

7.4.19.2 - Checklist: Kidnapping (Common Law)