Mr. Healy's second submission was based upon the premise that the "taking" involved in this case was the period that Mr. French was in the car. He submitted that the "taking" involved the very thing that the taking, with threats, was supposed to achieve, that is transportation in the motor vehicle. In my opinion this approach places far too much emphasis upon the need for a substantial degree of time and distance in the "taking". For my part I am satisfied that the "taking" may properly be regarded as being complete when both Brennan and Mr. French got into the car.
63 The appellant places great store on this decision relying upon the fact that the Minister for Justice, when introducing the bill proposing the enactment of s 90A, stated that the Queensland model had been considered together with the Victorian and Lindberg provisions. However the Attorney General told the Legislative Council that the provision was modelled on the Lindberg, Victorian and New Zealand provisions. But, as has already been noted, neither speech was concerned with explaining the actus reus of the new offence. In any event there is very little similarity between the Queensland provision and s 90A and not even the actus reus was identical. Demack J remarked that the provisions in the three states, Queensland, Victoria and New South Wales, were "quite different".
64 Neither Reid nor Campbell supports the proposition that a taking ceases to be a taking at the moment that the kidnapper becomes criminally liable for the offence. The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact. Once it has been established that a person has been "taken", in the sense that he or she has been compelled to go where he or she did not want to go, the "taking" continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper's conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.
65 In my opinion the words "takes or detains" do not create two offences but merely provide for two ways of committing the offence in s 86. This is how the abduction offences were considered upon which the original section, s 90A, was modelled and it is the only practical and logical way of considering the conduct at which the section is directed. Such an interpretation does not deprive the word "detention" of any work to do, because clearly there can be a detention without a taking and yet there will be in such a case an interference with the victim's liberty.
66 In the present case the "taking" alleged in the first count commenced at Parramatta and continued until the appellant and the complainant returned to the car park at Parramatta. That is how the matter was placed before the jury by the trial judge and without objection from the defence. Therefore, the actual bodily harm inflicted upon the complainant at Londonderry was occasioned during the course of the taking. It did not matter that the charge alleged that it occurred at Parramatta because, if this was a defect in the charge, it did not occasion the slightest unfairness to the appellant in the conduct of his defence.
67 Because in my view there is only one offence created by the words "takes or detains", a single offence of kidnapping can include both a taking and a detention. In the present case there was no distinction between a taking and a detention to describe the offence once the complainant had been driven from the parking lot at Parramatta Pool. It did not, in my opinion, matter how the circumstances thereafter were described by the prosecutor or the Judge provided that the jury understood that what was alleged was a single act of the accused in depriving the complainant of her liberty from the time they left Parramatta until their return. In the circumstances of this case and on the issues as placed before the jury it is mere pedantry to complain of the use of the term "detention" rather than a "taking" to describe the position of the complainant vis a vis the appellant. No such complaint was made at the trial because the use of the two terms interchangeably at various times could not have affected the legal or factual questions before the jury. The only issue so far as the basic offence of kidnapping was concerned was whether the complainant was voluntarily in the company of the appellant or not. The use of the term "taken" or "detained" aptly describes the Crown's contention that she was not.
68 I can see nothing that was confusing, or even potentially confusing, in the summing up. As was noted above, the jury were instructed as to the meaning of "took" in accordance with s 86(7) and directed that the taking, according to the Crown case, took place over the period from when they left the pool until they returned there. Defence counsel raised a complaint about a direction in relation to the indecent assault count but said nothing about the kidnapping count. In explaining the alternative count the Judge did refer to the jury returning a verdict of "kidnapping or detaining, taking simpliciter without the extra element of causing actual bodily harm". I see no error or cause for confusion in that direction because in this case kidnapping was made out on the basis of a taking or a detention.
69 In any event the day after the jury retired to deliberate they made a request to be reminded of the evidence concerning the events at the pool on the first occasion that the appellant and the complainant were there and wished to be directed again on the offence in count 1 and the statutory alternative under s 86(4). The relevant part of the evidence was replayed to the jury and then her Honour gave them further directions in simple terms as to the elements of the aggravated offence in terms of a "taking". Her Honour also directed that, if they were not satisfied as to the last element, being the infliction of actual bodily harm, but were satisfied of the first three elements, "that is that the accused took [the complainant] without her consent and the accused did this with the intention of obtaining an advantage, namely to have her company", they could convict of the alternative count.
70 Nor did the fact that the prosecutor from time to time referred to the detention of the complainant have the capacity or potentiality to confuse or mislead the jury. There was no issue as to whether the conduct of the appellant gave rise to a taking as opposed to a detention or vice versa. Defence counsel also used both terms during the course of his address. The issue was whether the complainant went with the appellant and remained with him willingly or without her consent. It was neither the defence nor the Crown case that the complainant was taken involuntarily from the car park at Parramatta but later withdrew her objections, either explicitly or implicitly, and willingly remained with the appellant.
71 Before summing up the Judge noted that both counsel had been using "take" and "detain" during their addresses but stated that she would direct the jury in relation to the term used in the charge. As has been noted, the Judge made it clear that the taking without the complainant's consent as alleged by the Crown covered the whole period that the complainant and the appellant were together.
72 In this case it did not matter that the Crown referred to the situation in Londonderry as "a detention" or that the appellant "detained" her there or anywhere else. Defence counsel made no complaint about the prosecutor's address nor did he ask the trial judge to remedy anything said during it. That is because it was a matter of complete indifference to the defence whether the conduct was described as a taking or a detention or both.
73 In any event, so far as complaint is made about the directions in the summing up, this is a classic case for the application of rule 4 as any error could not have led to a miscarriage of justice. The first three grounds should be rejected.