MICHAEL JAI SMITH AND THE KING - [2024] NZCA 562

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA598/2024
[2024] NZCA 562

BETWEEN	MICHAEL JAI SMITH Applicant
AND	THE KING Respondent

Court:	Hinton, Brewer and Osborne JJ
Counsel:	N P Bourke for Applicant C A Brook and T Zhang for Respondent
Judgment: (On the papers)	5 November 2024 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal on a question of law is declined for want of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

On 10 May 2024, Mr Smith took an unlocked vehicle from outside a dairy in Waitara, Taranaki. What Mr Smith did not realise was that there was a six-month-old baby in the back of the car. When Mr Smith did become aware of the baby, he pulled the car over twice and on the second occasion left the baby on the side of the road before driving away. Amongst a raft of other charges, Mr Smith has subsequently been charged with the abduction of a young person, an offence which carries a seven‑year maximum penalty.[1]
[1]Crimes Act 1961, s 210(1).
In the District Court, Mr Smith sought a pre-trial ruling that he could not be convicted of the offence of abduction because the evidence could not establish an intent to deprive the mother of her child, one of the elements of the offence. Judge G F Hikaka disagreed and held there was sufficient evidence to prove the requisite intent.[2]
[2]R v Smith [2024] NZDC 21886 [decision under appeal].
Mr Smith now seeks leave to appeal on a question of law against the Judge’s ruling. The Crown opposes the application for want of jurisdiction. For the reasons explained below, we agree with the Crown and decline Mr Smith’s application.

Background

There is no dispute as to the facts of the offending and we adopt the Judge’s helpful summary as set out in the decision under appeal:
[7]       Ms Donoghue left her parked car unlocked with the motor running while she went into a dairy. The defendant, Mr Smith, a recidivist dishonesty offender, was sitting outside the dairy. He saw an opportunity. He got into the car reversed it from its park and drove off, thereby unlawfully taking the car. He has admitted that.
[8]       Ms Donoghue heard what sounded like her car reversing, rushed out of the dairy, chased the car, now driven by Mr Smith, banged on the windows, grabbed the handle of a car door while yelling: “Give me my baby.”
[9]       It is accepted that Mr Smith did not realise there was a baby in the rear seat of the vehicle he had just unlawfully taken, but he became aware of the infant’s presence.
[10]      He drove a short distance away from the child’s mother, who was still pursuing him on foot. He went to the rear of the vehicle, tried to unbuckle the infant from his car seat capsule and was unsuccessful.
[11]      As the child’s mother drew nearer,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MICHAEL JAI SMITH AND THE KING [2024] NZCA 562
Case: [2024] NZCA 562
Decision Date: 5 November 2024 at 10.30 am

CaseChat Overview and Summary

Michael Jai Smith has applied to appeal the decision of Judge G F Hikaka in the District Court, who ruled that there was sufficient evidence to prove that Mr Smith had the requisite intent to be convicted of the abduction of a young person under 16 years old. Mr Smith contends that the ruling was incorrect as a matter of law. The Court of Appeal, consisting of Hinton, Brewer, and Osborne JJ, considered the application for leave to appeal on a question of law. The central issue was whether the Court of Appeal had jurisdiction to hear Mr Smith's appeal under section 296 of the Criminal Procedure Act 2011.

The Court of Appeal held that it did not have jurisdiction to hear the appeal. The Court reasoned that the Judge's ruling was not a determination of the charge nor did it relate to the determination of the charge. The Judge had considered the evidence against the elements of the offence of abduction and concluded that the elements of the offence were met. The Court observed that a refusal to dismiss a charge under section 147 of the Act is not appealable under section 296 because it does not relate to the determination of the charge. The same principle applied in this case. The ruling related to whether there was sufficient evidence to establish the requisite intent, not the determination of the charge itself. Mr Smith still had options available to him in respect of the charge, including pleading guilty or proceeding to trial.

The Court concluded that the application for leave to appeal on a question of law was declined for want of jurisdiction. The Court did not consider it necessary to engage with the test for leave and Mr Smith's submission that it was more desirable to hear the appeal now rather than have Mr Smith plead guilty "under duress". The Court noted, however, that Mr Smith would have a right of appeal to the Court of Appeal against any conviction for abduction where matters he seeks to raise on this proposed appeal could be pursued.

Orders