Kidnapping (Section 209 Crimes Act 1961)

Charge 1: Kidnapping under section 209 of the Crimes Act 1961

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1.	Are you sure that Mr Smith took away [or detained] Ms Jones in his car on 24 June 2019?
	If no, find Mr Smith not guilty. If yes, go to question two.
2.	Are you sure that Mr Smith intentionally took Ms Jones away [or detained Ms Jones] in his car?
	If no, find Mr Smith not guilty. If yes, go to question three.
3.	Are you sure that Mr Smith took Ms Jones away [or detained her] without her consent? [or her consent was obtained by fraud through Mr Smith telling her he was taking her to see her mother] [or her consent was obtained by duress through Mr Smith threatening to “smash her”]
	[Note: Amend or delete the words in square brackets above as required.] [Note: A person under the age of 16 cannot consent to being taken away or detained.] “Fraud” means untruthful and dishonest statement(s) or conduct. “Duress” means that Ms Jones’ actions were motivated by a threat, or reasonably held fears, that force would be applied to her, or another. If no, find Mr Smith not guilty. If yes, go to question four.
4.	Are you sure that the taking away [or detention] of Ms Jones was unlawful?
	[Note: This is an element of the offence and is distinct from whether the complainant consented or whether the complainant’s consent was obtained by fraud or duress. In most cases, this element will not be an issue at trial. However, it is necessary to include it as an element of the offence to ensure that a police officer arresting or detaining a person is not criminalised. For example, an arrest may be perfectly lawful yet not consented to.] If no, find Mr Smith not guilty. If yes, go to question five.
5.	Are you sure that Mr Smith knew that Ms Jones was not consenting to being taken away [or detained] in his car? [or Ms Jones’ consent had been obtained by fraud through telling her she was being taken to see her mother] [or Ms Jones’ consent had been obtained by duress through Mr Smith threatening to “smash her”]?
	[Note: Amend or delete the words in square brackets above as required.] You must be sure that Mr Smith did not believe that Ms Jones was consenting. A genuine belief in consent does not need to be based on reasonable grounds. If no, go to question six. If yes, go to question seven.
6.	Are you sure that Mr Smith was reckless as to whether Mr Jones consented to being taken away [or detained]?
	“Reckless” means that Mr Smith recognised that there was a real possibility that Ms Jones did not consent (or that any consent was obtained by fraud or duress) and that, having regard to that possibility, Mr Smith’s actions in taking her away [or detaining her] were unreasonable. “Unreasonable” actions are actions that a reasonable and prudent person would not have taken. If no, find Mr Smith not guilty. If yes, go to question seven.
7.	Are you sure that when taking away [or detaining] Ms Jones, or any time while taking her away [or detaining her], Mr Smith intended to hold her to ransom or service [OR cause her to be confined or imprisoned OR cause her to be sent or taken out of New Zealand]?
	[Note: Amend or delete the words in square brackets above as required.] “Service” includes any trade or professional activity. If no, find Mr Smith not guilty. If yes, find Mr Smith guilty.