Previous Topic

Next Topic

Book Contents

Book Index

7.4.20.1 - Charge: Kidnapping (Statutory)

Click here to obtain a Word version of this document for adaptation.

When to use this charge

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

The Elements

I must now direct you about the crime of kidnapping. That crime has the following two elements which the prosecution must prove beyond reasonable doubt:

One – The accused lead, took or enticed the complainant away, or detained the complainant.

Two – The accused did so with the intention of demanding a ransom or gaining an advantage.

I will now explain each of these elements in more detail. [1]

Leading, taking, enticing or detaining

The first element that the prosecution must prove is that the accused lead, took or enticed NOC away, or detained NOC.

[If the accused is alleged to have lead, took or enticed the complainant, add the following shaded section]

To establish this element, the prosecution must prove that NOA’s actions were an effective cause of NOC accompanying him/her to another place. It does not matter whether this was accomplished by violence or by persuasion. What matters is whether NOA caused NOC to accompany him/her.

[If the accused is alleged to have detained the complainant, add the following shaded section]

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 darker shaded section]

In deciding whether NOA detained NOC, you must consider whether NOC had a reasonable means of escape. A person who has a reasonable means of escape is not detained. 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]

Intention

The second element is that at the time of [leading NOC away / taking NOC away / enticing NOC away / detaining NOC], NOA intended to demand a ransom or gain an advantage from detaining NOC. There are two possible intentions that will meet this element – intending to demand a ransom or gain an advantage from detaining NOC.

In this case, the prosecution says that NOA intended to [demand a ransom / gain an advantage from detaining NOC].

[If the prosecution relies on an intent to demand a ransom, add the following shaded section]

A ransom is a payment for the release or return of a person. The law says that a person may be guilty of this offence by intending to demand a ransom from either NOC, or from another person. In considering this element, it does not matter if NOA did not demand a ransom or did not successfully communicate this demand. This element is only concerned with NOA’s intention at the time s/he [lead NOC away / took NOC away / enticed NOC away / detained NOC]. [2]

[If the prosecution relies on an intent to gain an advantage, add the following shaded section]

The law says that NOA may intend to gain an advantage for him/herself or another, and that advantage has a very broad meaning. If you are satisfied that, by detaining NOC, NOA intended [describe advantage relied upon by the prosecution, e.g. “to have the benefit of NOC’s company” / “to stop NOC from reporting his location to police”], then you may find this element proven.

[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 lead, took or enticed NOC away, or detained NOC;

Two – That NOA did so with the intention of demanding a ransom or gaining an advantage.

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

 

Notes

[1] If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: “It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven.”

[2] If the accused’s intention may have changed over time, the judge should explain how those changes may be relevant.

Last updated: 2 December 2013

See Also

7.4.20 - Kidnapping (Statutory)

7.4.20.2 - Checklist: Kidnapping (Statutory)