Take/detain for advantage/ransom/serious indictable offence (kidnapping)

[5-6800] Introduction

The current forms of kidnapping offences are found in s 86 Crimes Act 1900 (renumbered from s 85A on 21 December 2001) and commenced operation on 14 December 2001. For offences prior to 14 December 2001 see s 90A Crimes Act (repealed).

Generally see Davis v R [2006] NSWCCA 392 for the history of the offence.

See also Criminal Practice and Procedure NSW at [8-s 86.1]ff; and Criminal Law (NSW) at [CA.86.20]ff.

The Crown must prove for an offence against s 86(1) or its aggravated or specially aggravated forms, that the “taking” or “detaining” was without consent. Section 86(5) creates a presumption that there is an absence of consent if the alleged victim is under the age of 16 subject to the exceptions listed in s 86(6). If the accused relies upon an honest and reasonable mistake of fact as to the age of the alleged victim he or she must meet an evidential burden to establish such a belief. If the evidential burden is satisfied, the onus shifts to the Crown to prove beyond reasonable doubt that the accused did not honestly, on reasonable grounds, hold the belief: Ibrahim v R [2014] NSWCCA 160 at [54].

The accused’s knowledge of a lack of consent can be established by the Crown proving either that the accused actually knew the alleged victim did not consent or that the accused was reckless as to whether the alleged victim consented: R v DMC (2002) 137 A Crim R 246 at [41]–[42]; Castle v R (2016) 92 NSWLR 17 at [32], [66], [106]. Recklessness can be established in a manner similar to that explained in Banditt v The Queen (2005) 224 CLR 262 at [38] where the High Court referred to the expressions used in R v Morgan [1976] AC 182 and by Professor Smith (in JC Smith and BP Hogan, Criminal Law, LexisNexisUK, 2002 (10 ed)) when the High Court defined the concept of recklessness for the purpose of s 61R(1) (rep) Crimes Act: Castle v R at [48], [50].

The court in Castle v R defined recklessness for the purposes of s 86 as being limited to advertent recklessness. An accused is reckless either if he or she proceeds “willy-nilly”, not caring whether the alleged victim consents or not, or, alternatively, where the accused is aware there is any possibility of a lack of consent but he or she proceeds regardless: Castle v R at [49]–[50]. Recklessness for the purposes of s 86 cannot be proved by establishing that the accused did not turn his or her mind to the question of consent in circumstances where the lack of consent would be obvious if the accused had considered it: Castle v R at [38]–[39], [47], [101]. The latter was described in Castle v R as inadvertent recklessness: Castle v R at [101], [106]–[109].

For simplicity, the suggested direction below is for an offence which involves the ingredients: “detaining” and “for advantage”. It can be adapted for offences which involve “taking” and “holding to ransom”, or “committing a serious indictable offence”, or combinations of these ingredients (guidance is provided below). The ingredient “with the intention of committing a serious indictable offence” is only available for offences committed or alleged to have been committed on or after 24 September 2012: Crimes Legislation Amendment Act 2012.

[5-6810] Suggested direction — basic offence (s 86(1))

The accused is charged with the offence of detaining a person for advantage.

In order to prove that [the accused] is guilty of the offence, the Crown must prove beyond reasonable doubt each of the following essential facts (or ingredients):

1.: that [the accused] detained [the alleged victim]
2.: knowing that [he/she] was not consenting to that detention; and
3.: [the accused] did so with the intention of obtaining an advantage by that detention.

1. The accused detained the alleged victim

The first matter for the Crown to prove is that [the accused] detained [the alleged victim]. To detain a person means to prevent that person from leaving should he or she wish to do so. It is an interference with the person’s liberty. It is enough if [the alleged victim] was detained for only a very short time. [Describe the evidence relied upon by the Crown to prove detention.]

[Where the allegation is “taking”, add:

Taking is a form of detention where the accused causes a person to accompany him or her so that the person is compelled to go where he or she did not want to go. It is not necessary for a taking that [the alleged victim] be moved from one place to another.

[The trial judge should give consideration to whether on the evidence the jury need to be informed of the difference between taking and detaining and that taking is a form of detention (see Davis v R above).]

[Describe the evidence relied upon by the Crown to prove taking occurred.]]

[If appropriate, where there is an issue arising on the evidence as to whether the detention was a result of the conduct of the accused, add:

[The accused] relies upon evidence that [the alleged victim] remained in [the place of detainment] for a reason other than any conduct on the part of [the accused].

[Detail the evidence relied upon.]

In such a case the Crown must prove beyond reasonable doubt that the conduct of the accused materially contributed to the detention of [the alleged victim]. It does not mean that [the alleged victim] remained only because of [the accused’s] conduct. But the conduct alleged by the Crown must have been significant in the decision of [the alleged victim] to remain. That means that if there is a real possibility that [the alleged victim] remained in the [place of detention] for a reason that had no real or significant connection with the conduct of [the accused], the Crown will have failed to prove beyond reasonable doubt that [the accused] detained [the alleged victim] for the purpose of the offence and you must find the accused “not guilty”.]

2. The accused knew the alleged victim did not consent to the detention

The next matter that the Crown must prove beyond reasonable doubt is that [the accused] knew that [the alleged victim] did not consent to being detained by [the accused]. Consent must be free and voluntary consent. Consent is not given if [the alleged victim] is detained by [the accused] as a result of force or threats.

[If appropriate, add:

Consent is not given if [the alleged victim] initially consents to being detained by [the accused] but later withdraws it, making that withdrawal known to [the accused] by [his/her] words or conduct.]

[An absence of consent is presumed if the alleged victim is under 16 years of age. A direction as to honest and reasonable mistake by the accused as to the age of the alleged victim should be given if it is raised in the evidence: see Ibrahim v R [2014] NSWCCA 160 at [54].]

[If appropriate, add where the Crown relies upon recklessness and Castle v R [2016] 92 NSWLR 17 applies:

The Crown can prove [the accused] knew [the alleged victim] did not consent to the detention by proving beyond reasonable doubt either that [the accused] actually knew [the alleged victim] did not consent to the detention or that [he/she] was reckless as to whether [the alleged victim] consented to the detention.

If [the accused] was reckless as to whether [the alleged victim] consented to the detention, then it is the law that [the accused] will be taken to know that [the alleged victim] did not consent to the detention.

The Crown will prove [the accused] was reckless by proving that [the accused’s] state of mind was such that [he/she] realised the possibility that [the alleged victim] was not consenting but [he/she] detained [the alleged victim] regardless.

Alternatively, the Crown can prove [the accused] was reckless by proving that [the accused] could not care less whether [the alleged victim] consented to the detention or not but [he/she] detained [the alleged victim] regardless.

Let me repeat. If [the accused] was reckless then it is the law that [the accused] will be taken to know that [the alleged victim] did not consent to the detention.]

[Describe the evidence relied upon by the Crown to prove that the alleged victim was not consenting and the accused knew of that fact.]

3. The accused detained with the intention of obtaining an advantage

Finally, the Crown must prove that [the accused] detained [the alleged victim] with the intention of obtaining an advantage. It is not necessary that the advantage be actually achieved. It is sufficient if [the accused] had the intention of achieving an advantage by detaining [the alleged victim]. The advantage sought to be achieved need not be financial. Psychological or sexual gratification is enough to prove this ingredient of the offence. Here, the Crown allegation is that the advantage [the accused] intended to obtain by the detention was [state the Crown allegation]. The Crown must prove that the intention to obtain this advantage existed at some time during the period [the alleged victim] is detained. The intention need not exist for the whole of that period.

[Describe the evidence relied upon by the Crown to prove intention.]

[Where the allegation is “holding the person to ransom”:

The Crown alleges that [the accused] detained [the alleged victim] with the intention of holding [him/her] to ransom. This means that the Crown has to prove beyond reasonable doubt that [the accused] intended to detain [the alleged victim] in order to demand and obtain a sum of money for [the alleged victim’s] release. It does not matter whether [the accused] in fact demanded money or whether [he/she] succeeded in obtaining any money.

[Describe the evidence relied upon by the Crown to prove holding to ransom.]]

[Where the allegation is “with the intention of committing a serious indictable offence” - only available for offences alleged to have been committed on or after 24 September 2012:

The Crown alleges that [the accused] detained [the alleged victim] with the intention of committing a serious indictable offence. This means that the Crown has to prove beyond reasonable doubt that [the accused] intended to detain [the alleged victim] in order to commit [state the offence]. It does not matter whether [the accused] in fact succeeded in committing the offence.

[Describe the evidence relied upon by the Crown to prove the accused’s intention of committing a serious indictable offence.]]

Finding(s)

If you find that all three of these essential facts (or ingredients) have been proved by the Crown beyond reasonable doubt, then the verdict should be “guilty” as charged.

If you are not satisfied that the Crown has proved beyond reasonable doubt any of the three essential facts (or ingredients) making up the offence, then your verdict should be “not guilty”.

[5-6820] Suggested direction — aggravated offence (s 86(2)), including alternative verdict for basic offence (s 86(4))

[Adopt so much of the suggested direction for the basic offence as is appropriate before continuing.]

The Crown also alleges that this offence was committed in what is called a “circumstance of aggravation”. This means that in addition to the three essential facts (or ingredients) to be proved to make out the offence of detaining for advantage, there is a fourth essential fact (or ingredient) that the Crown is required to prove beyond reasonable doubt. It is that:

[Select one of the following:

1.

the offence was committed in the company of another person [or persons].

OR

2.

actual bodily harm was occasioned to [the alleged victim] at the time of, or immediately before or after, the commission of the offence.]

4. The offence was committed in the company of another person

The Crown must prove beyond reasonable doubt that the offence was committed in the company of another person. If two or more persons are present, and share the same purpose to detain the alleged victim for advantage, they will be “in company”, even if the alleged victim is unaware of the other person[s].

[If it is in dispute as to whether the accused was in company, add:

The Crown must prove that the coercive effect of the group operated, either to embolden or reassure [the accused] in committing the crime alleged, or to intimidate [the alleged victim] into submission. The perspective of [the alleged victim] (being confronted by the combined force or strength of two or more persons) is relevant, but does not solely decide the issue.

Participation in the common purpose without being physically present (for example, as being a look-out or previously encouraging [the accused] to commit the offence) is not enough.]

[Describe the evidence relied upon by the Crown to prove the offence committed in the company of another person.]

5. Actual bodily harm was occasioned to the alleged victim

The Crown must prove beyond reasonable doubt that actual bodily harm was occasioned to [the alleged victim] at the time of, or immediately before or after, the commission of the offence of detaining for advantage.

“Actual bodily harm” includes any hurt or injury which interferes with the health or comfort of a person. It need not be permanent, but must be more than transient or trifling. Bruises and scratches are typical examples of injuries that can amount to actual bodily harm.

[If appropriate, add:

If [the alleged victim] has been injured psychologically in a very serious way that can also amount to actual bodily harm.]

[Describe the evidence relied upon by the Crown to prove that actual bodily harm was occasioned.]

Finding(s)

If you find that all four of these essential facts (or ingredients) have been proved by the Crown beyond reasonable doubt then your verdict should be “guilty” as charged with the aggravated offence.

[Alternative verdict — basic offence:

If, however, you are not satisfied beyond reasonable doubt of the circumstance of aggravation that [either, the offence was committed in company or actual bodily harm was occasioned to [the alleged victim]], but you are satisfied that the Crown has proved the first three essential facts (or ingredients) making up the basic offence beyond reasonable doubt, then your verdict should be “not guilty as charged, but guilty of detain for advantage”.

That verdict would mean that you are satisfied beyond reasonable doubt that [the accused] committed the basic offence of detaining for advantage, but you were not satisfied that the circumstance of aggravation has been proved beyond reasonable doubt.]

If you are not satisfied that the Crown has proved beyond reasonable doubt any of the three essential facts (or ingredients) making up the basic offence, then your verdict should be “not guilty”.

[5-6830] Suggested direction — specially aggravated offence (s 86(3)), including alternative verdicts for aggravated offence and basic offence (s 86(4))

[Adopt so much of the suggested direction for the basic offence as is appropriate before continuing.]

The Crown also alleges that this offence was committed in what is called a “circumstance of special aggravation”. This means that in addition to the three essential facts (or ingredients) making up the basic offence, there are a further two essential facts (or ingredients) that the Crown is required to prove beyond reasonable doubt. They are that:

1.

the offence was committed in the company of another person [or persons].

AND

2.

actual bodily harm was occasioned to [the alleged victim] at the time of, or immediately before or after, the commission of the offence.

[Directions for “in company” and “actual bodily harm” are to be found in the suggested direction at [5-6820].]

Finding(s)

If you find that all five essential facts (or ingredients) have been proved by the Crown beyond reasonable doubt then your verdict should be “guilty” as charged with the specially aggravated offence.

[Alternative verdict — aggravated offence:

If, however, you are satisfied beyond reasonable doubt of only one of the circumstances of aggravation being either, the offence was committed in company or actual bodily harm was occasioned to [the alleged victim] and you are satisfied that the Crown has proved the first three essential facts (or ingredients) giving rise to the basic offence beyond reasonable doubt, then your verdict should be “not guilty as charged, but guilty of aggravated detain for advantage”.

That verdict would mean that you are satisfied beyond reasonable doubt that the accused committed the basic offence of detaining for advantage with the addition of one of the circumstances of aggravation, but you were not satisfied that both of the circumstances of aggravation have been proved beyond reasonable doubt.]

[Alternative verdict — basic offence:

On the other hand, if you are satisfied beyond reasonable doubt that the Crown has proved only the three essential facts (or ingredients) making up the basic offence, but you are not satisfied that either of the circumstances of aggravation have been proved, then your verdict should be “not guilty as charged, but guilty of detain for advantage”.

That verdict would mean that you are satisfied beyond reasonable doubt that the accused committed the basic offence of detaining for advantage but are not satisfied beyond reasonable doubt of either circumstance of aggravation.]

If you are not satisfied that the Crown has proved beyond reasonable doubt any of the three essential facts (or ingredients) making up the basic offence, then your verdict should be “not guilty”.