The Law, Defences and Penalties for Kidnapping in New South Wales

by Sonia Hickey & Ugur Nedim

Two teenagers who lured a Canberra-based businessman via the dating app Grindr to bushland on the New South Wales South Coast have been found not guilty of his murder. 

Peter Keely’s body was found gagged, bound and battered in bushland at Broulee in February 2020. 

He had suffered significant head and facial injuries, but a post-mortem examination was inconclusive about the cause of death. 

A subsequent investigation found that one of the teens has Googled, “does holding a metal object in your hand make a difference to your punch?” just hours before meeting Mr Keely.

Evidence of cause of death

During the six-day judge-alone trial in the New South Wales Supreme Court, the prosecution argued that Keeley’s death was due to “craniofacial trauma combined with airway obstruction”, but the defence brought in an expert whose opinion was that death could have been caused by methamphetamine toxicity. 

Justice Michael Walton accepted the prosecution’s assertion that during the assault, Mr Keeley had been gagged with packing take and was face down on the ground.

However, his Honour ultimately ruled that the prosecution had failed to establish their asserted cause of death beyond a reasonable doubt due to the possibility of a drug overdose.

He therefore returned a verdict of not guilty for the offence of murder in respect of each accused, who were 17-years old at the time of the incident.

However, each of the men, now aged 19 and 20, had previously pleaded guilty of detain for advantage in company causing actual bodily harm, which is a type of aggravated kidnapping that carries a maximum penalty of 25 years in prison. They will be sentenced for that offence on a later date.

The case of a third accused, who was a young adult at the time of the incident, will be tried separately.

The offence of kidnapping in New South Wales 

Kidnapping is an offence under section 86 of the Crimes Act 1900 which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You took or detained a person,
  2. Without the person’s consent,
  3. With the intention of holding the person for a ransom, or committing a serious indictable offence, or obtaining any other advantage.

You must be found not guilty if the prosecution is unable to prove each of these elements.

The maximum penalty increases to 20 years in prison where you were in the company of another person or persons, or you caused actual bodily harm to the complainant.

The maximum penalty increases to 25 years in prison where you were in the company of another person or persons, and you caused actual bodily harm to the complainant.

What are the defences to kidnapping?

Where there is evidence of an available legal defence to a kidnapping charge, the prosecution must then disprove that defence beyond a reasonable doubt.

If the prosecution is unable to do so, you must be found not guilty.

The legal defences to kidnapping include:

  1. Self-defence
  2. Duress
  3. Necessity
  4. Being the child’s parent (provided you are not contravening a court order), and
  5. Acting with the consent of the child’s parent.

Most kidnappers are known to their victims 

The criminal act of kidnapping is not as rare as you might think. 

Last year, figures released from the Australian Bureau of Statistics (ABS) suggested there were 534 reported incidents of kidnapping across the nation. 

Out of those, 225 were in New South Wales. Victoria recorded the next highest number with 158 people abducted or kidnapped, while Queensland and South Australia recorded 59 cases. 

And despite what we might have come to believe about “stranger danger,” the statistics suggest that in NSW, Victoria and SA, most of the kidnappers were known to their victims.

Research also suggests there are many more kidnappings that go unreported.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 24 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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