Kidnapping Offences

Taking a person includes causing the person to accompany another person and causing the person to be taken.

Detaining a person includes causing the person to remain where he or she is. The Prosecution must prove that your conduct materially contributed to the detention of the victim. There does not have to be an actual physical detention to satisfy the requirement of detaining and it can be as a result of threats and/or violence that materially contributed to depriving the victim of their liberty.  

 The Prosecution must not only prove that the victim did not consent to the detaining but also that you knew that he or she was not consenting.  Knowledge of the lack of consent can be established either by proving that you knew the victim did not consent or that you were reckless as to whether there was consent.  

Intent to Commit Serious Indictable Offence or Obtain an Advantage 

The Crimes Act 1900 (NSW) defines ‘serious indictable offence’ as one that is punishable by at least five years imprisonment. For example, detaining someone for the purpose of stealing something from them would fall within the definition of serious indictable offence as the maximum penalty for larceny is five years imprisonment.  

The word ‘advantage’ has a wide scope is not limited to the obtaining of some monetary payment or some similar concession from a third party but extends to a situation where the object of the detention is to force the detainee to do something for the detainer. The advantage obtained can also consist of a psychological satisfaction or gratification derived by you.   

There have been regular examples of persons taking vigilante action in circumstances where it is believed that the detained person has committed some wrong against the offender, or persons associated with the offender. 

If you commit this crime with another person, or people, the maximum penalty increases. This is commonly referred to as ‘in company.’ To establish whether you were in company at the time of the commission of the offence, the Prosecution must establish that you and the other person shared the relevant common purpose for the commission of the offence. In other words, there must be an expressed or implied agreement between you to achieve a common result. A mere coincidence of common actions is insufficient.

Actual bodily harm is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt, or injury need not be permanent but must be more than merely transient and trifling. The phrase ‘actual bodily harm’ can include psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition. Typical injuries include redness, bruising, broken bones, and swelling. 

Furthermore, although it is not necessary that more than one person threaten or assault the victim, the constructive presence of more than one person is not sufficient. What this means is that a person keeping watch is not ‘in company’. The necessary intent that must be proven is that you knew or expected that the victim would know of the presence of more than one person at the time of the commission of the offence and the ability of more than one person to assist if called upon to do so. 

The law states that: 

1. A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. 
2. A person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary:
   • to defend himself or herself or another person, or
   • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
   • to protect property from unlawful taking, destruction, damage or interference, or
   • to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 

Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence. 

Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.  

Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence. 

For necessity to be established, the following must exist at the time of the commission of the offence: 

• You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect; 
• You honestly and reasonably believed that you were in a situation of immediate peril; and  
• Your actions were reasonable and proportionate to the situation. 

As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.