Smith v The King - [2025] NZCA 270

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA785/2024
[2025] NZCA 270

BETWEEN	MICHAEL JAI SMITH Appellant
AND	THE KING Respondent

Hearing:	13 May 2025
Court:	Cooke, Venning and van Bohemen JJ
Counsel:	N P Bourke for Appellant P D Marshall for Respondent
Judgment:	24 June 2025 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Cooke J)

Michael Smith appeals from his conviction on a charge of abducting a young person in contravention of s 210 of the Crimes Act 1961. He pleaded guilty to this, and a range of other charges, and was sentenced to four years’ imprisonment.[1] His conviction on the abduction charge followed an earlier ruling of the District Court that the elements of abduction were satisfied on the summary of facts to which he was pleading guilty.[2] In effect he is challenging this ruling, and contends that the abduction charge over-criminalises his admitted behaviour.

Relevant facts

[1]R v Smith [2024] NZDC 28970 [sentencing notes].

[2]R v Smith [2024] NZDC 21886 [abduction ruling].

The relevant offending occurred on 10 May 2024. At that stage Mr Smith was serving a sentence of home detention and his conduct was the beginning of his breach of that sentence and a spree of offending that followed.
He was outside a dairy in Waitara at approximately midday. A person drove to the dairy, parked and went inside leaving her car unlocked and running. The driver’s six-month-old baby was asleep, strapped into a car seat in the back. Mr Smith decided to steal the car. He got in the driver’s seat and started reversing the car out of the park. The driver tried to stop him by banging on the rear passenger window and shouting that her baby was in the back seat, but Mr Smith drove off, causing her to fall. The mother then got up and chased after him on foot.
Mr Smith then realised there was a baby in the back of the car. He stopped, opened the back passenger door and tried to get the baby out to leave it on the side of the road. But he was unable to manage this and the mother was approaching. He then got back into the car, did a right hand turn and drove another short distance down the road. He then stopped again and managed to get the baby out and put it on the grass verge close to the roadside. He then got back into the vehicle and drove off at speed. The baby’s mother had been picked up by a stranger in another car, and they arrived and recovered the screaming baby from the roadside shortly after.
Over the following days Mr Smith committed a number of additional offences until he was apprehended in another stolen vehicle on 17 May.
Mr Smith pleaded guilty to a series of charges in relation to the spree of offending over the period 10–17…

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.

Continue reading Smith v The King

Details

AGLC: Smith v The King [2025] NZCA 270
Case: [2025] NZCA 270
Decision Date: 24 June 2025 at 10.30 am

CaseChat Overview and Summary

Michael Smith appeals his conviction for abducting a young person under the age of 16, in contravention of section 210 of the Crimes Act 1961. Smith pleaded guilty to this charge, along with other charges, and was sentenced to four years’ imprisonment. His conviction on the abduction charge followed a ruling by the District Court that the elements of abduction were satisfied based on the facts to which he pleaded guilty. Smith argues that the abduction charge over-criminalises his admitted behaviour and contends that he never intended to abduct the child. The relevant facts are that Smith was outside a dairy in Waitara when he decided to steal a car with a six-month-old baby asleep in the back. Despite the mother's attempts to stop him, Smith drove off with the baby in the car. He stopped twice to try to remove the baby but was unable to do so before the mother approached. He then drove off again with the baby still in the car before eventually stopping and removing the baby from the car. The baby's mother had been picked up by a stranger and arrived shortly after to recover the baby.

The court considered Smith's argument that the element of intention required by section 210(1) was not satisfied in this case. Smith's counsel argued that his primary aim was to extract the child out of the car as soon as possible upon learning of his presence and that he did not have a secondary or oblique intention of depriving the baby’s mother of her child. The court rejected this argument, finding that Smith intentionally took the child with him when he continued with the theft of the car. The court also rejected the argument that the offence over-criminalises Smith's behaviour, stating that offending of this kind has real contemporary significance relating to the custody and care of children.

For the above reasons, the appeal is dismissed.

Orders