KIDNAPPING & JOINT CRIMINAL ENTERPRISE02-Jun-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 2/6/2010
Section s86 of the Crimes Act 1900 (NSW) relating to Kidnapping contains one offence however, it may be committed in two ways namely via ‘taking’ or ‘detaining’ a person. The offence also contains three tiers namely, the basic offence (s86(1)), Aggravated Kidnapping (s86(2)) and Specially aggravated Kidnapping (s86(3)); with the respective penalties being 14, 20 and 25 years imprisonment.
The elements of the offences being:
1. Takes or detains a person;
2. without the person’s consent;
3. with the intention of holding the person to ransom or other advantage.
Aggravated (basic offence plus):
4. In company or in circumstances where actual bodily harm is inflicted.
Specially aggravated (basic offence plus):
4. In company; and
5. where actual bodily harm is inflicted.
Whilst the offence of kidnapping can be committed by one person (eg. Domestic violence situations) this offence can also be committed by more than one person or accessories (eg. Sexual assault). A useful summary of the law as it relates to accessorial liability and detaining for advantage can be found in Charlesworth v Regina  NSWCCA 27 (25 February 2009) per Kirby J:
28. A convenient statement concerning the nature of a joint criminal enterprise (approved in Osland v The Queen  HCA 75; (1998) 197 CLR 316) was made by Hunt CJ at CL in Tangye (1997) 92 A Crim R 545: (at 556/7):
1. The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
2. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
3. A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
4. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”
48. The offence, broadly, involved two aspects. There must be evidence of the principal offence, as well as evidence that the appellant aided and abetted that offence. Hunt J in Stokes and Difford (1990) 51 A Crim R 25, said this: (at 37)
“To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused) by aiding and abetting him, the Crown must establish:
(1) the commission of that crime by the principal offender, and
(2) that the accused was present at the time when the crime was committed, and
(3) that (subject to an exception which I discuss later) the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime), and
(4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime. The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge (emphasis added).
49 His Honour elaborated upon the state of mind required in the case of an aider and abetter, referring to the High Court decision in Giorgianni v Regina  HCA 29; (1985) 156 CLR 473. He said: (at  “Although some of the older authorities suggest that the accused need be aware of only the physical acts done by the principal offender, it is now clear that he must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him.”
50 His Honour added: (at ) “ ... it is strictly with the accessory’s awareness of the principal offender’s intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past.” (emphasis is mine).
It was noted in the abovementioned case that the offence of detain for advantage is a continuing offence however, His Honour Kirby J, went on to clarify Hunt J’s comments (as referred to above) in relation an accused’s requirement to be present during the commission of a continuing offence:
66 However, that statement of the principle, I believe, requires refinement. In the context of the continuing offence of detain for advantage (s 86 Crimes Act 1900), it is enough, in my view, if the accused is present during some part of that detention and, knowing of that detention, provided assistance and otherwise satisfied the requirements as set out in the judgment of Hunt J in that case.
Hence, a person being present during part of the detention of another with the requisite knowledge may be found guilty of this offence. The main statutory changes to the common law, apart from increased penalties, relate to the additional alternative element of ‘detaining’; as it is now made clear that the gravamen of the offence relates to the deprivation of liberty (R v Newell  NSWCCA 183 and Davis v R  NSWCCA 392). These points were made clear by His Honour, Howie J in Davis v R  NSWCCA 392 (11 December 2006):
43 The manifest purpose of the modern kidnapping provisions was to provide for more serious and definite penalties than might otherwise be appropriate for an offence which at common law was a mere misdemeanour. The real evil against which the provisions were directed was not the physical removal of the victim from the jurisdiction, but the intent to hold the victim for some advantage to the offender.
Accordingly, proof of a mere detention without asportation would be enough to make out the offence so long as the requisite intent could also be proved. The rationale of the statutory offence was different to that at common law where, as has been noted, the offence of kidnapping had originated in order to prevent the selling of persons into slavery in another country, a practice that, inter alia, had the consequence of depriving the King of the benefit of his subjects.
53. As at common law, every taking will include a detention, but not every detention will involve a taking. In any event it is the interference with the liberty of the person that is the conduct at the heart of the modern day concept of kidnapping. I can see no policy consideration that would warrant an interpretation of the section as giving rise to two distinct offences as the appellant asserts.
As to the element of ‘advantage’ that the accused must intend, this has been interpreted extremely broadly. It has been held that it is sufficient for the crown to establish ‘psychological satisfaction’ or that ‘gratification’ is obtained by the accused to establish this element of the offence (R v Rose  NSWCCA 411).