Smith v R [2024] NZCA 562 (5 November 2024)

Last Updated: 11 November 2024

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)

• [1] 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]
• [2] 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]
• [3] 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

• [4] 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, to about 10 metres away, Mr Smith got back into the vehicle and drove a further distance before again stopping. At the second stop he went to the rear seat and was able to unbuckle the child. He removed the child from the car seat and placed the child on the grass verge of the road that he was on. He then got back into Ms Donoghue’s vehicle and drove away.

[12] Ms Donoghue was assisted by a member of the public who, it appears saw what was happening, invited her into his car and intercepted the path that Mr Smith had taken, which meant that about 15 seconds after the child was placed on the grass verge, Ms Donoghue was reunited with her child. Both mother and child were greatly distressed and Ms Donoghue [had] a seizure.

[13] The distance travelled from where the car was initially taken to where the child was left by the side of the road is approximately 600 metres.

• [5] Mr Smith was charged with abduction of a young person under 16 pursuant to s 210(1) of the Crimes Act 1961, which provides:

210 Abduction of a young person under 16

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person.

• [6] In order to establish that charge, the Crown must prove the defendant intentionally and unlawfully took a person under 16 from a parent or person who had lawful care of that young person, and the defendant knew this and intended to deprive the parent or person of the possession of the young person.^[3]
• [7] Mr Smith has pleaded guilty to the other charges he faces, and the abduction charge is the only unresolved matter.
• [8] As noted, Mr Smith sought a pre-trial ruling. The question posed was: “Is [the conduct quoted at [4] above] intended to be captured by the offence of an abduction of a young person under 16”.^[4] The argument proceeded before the Judge on the basis that Mr Smith could not be convicted of the offence because there was no evidence that proved he had intended to deprive the mother of her child.
• [9] The Judge set out the facts of Mr Smith’s offending. The Judge considered overseas authorities on the development of the intention element for abduction offences. He noted Mr Smith’s argument that the charge was an “overreach” for this particular conduct and had the effect of creating broader liability than intended by Parliament when introducing the crime of abduction.^[5]
• [10] The Judge accepted that Mr Smith’s primary intention was the theft of the motor vehicle.^[6] However, he concluded that Mr Smith’s actions in stopping the car, trying to get the baby out, and then driving further down the road before trying again “appear[ed] ... to meet the definition of intent to deprive”.^[7] It was “tenuous”, the Judge considered, to say Mr Smith was not trying to take the baby away when there was a period of time in between the two attempts to remove the baby from the car seat where Mr Smith was driving away from the mother who was in pursuit of the car.^[8] During that period of time, Mr Smith “actually deprived the mother of the care of the child”.^[9]
• [11] The Judge reached this conclusion notwithstanding submissions from Mr Smith’s counsel that Mr Smith’s “primary objective” was to steal the car. He considered that Mr Smith’s intent to later offload the baby when a greater distance away, to avoid a confrontation, would have been “little consolation to the mother seeing her car with her baby driven out of her sight.”^[10] The Judge therefore held that the elements of the offending were met,^[11] although the other factors would “no doubt be ... mitigating factor[s]” as to the seriousness of that charge.^[12]

The application

• [12] Mr Smith now applies for leave to appeal. He has indicated that if his application is not successful, he intends to plead guilty to the charge and then subsequently bring an appeal against conviction.
• [13] The application for leave to appeal on a question of law is brought under s 296 of the Criminal Procedure Act 2011. That section provides:

296 Right of appeal

(1) This section applies if a person has been charged with an offence.

(2) The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3) The question of law in a first appeal under this subpart must arise—

(a) in proceedings that relate to or follow the determination of the charge; or

(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

(4) The question of law must not be one that—

(a) arises from a jury verdict; or

(b) arose before the trial and has already been decided under subpart 2.

• [14] The issue for this Court to determine at this stage is whether there is jurisdiction to hear the application for leave to appeal under s 296.
• [15] For Mr Smith, Mr Bourke submits this Court does have jurisdiction to hear an appeal against the Judge’s ruling. He says it is possible to appeal a ruling under s 296 if there is a sufficiently close connection between the proceedings in issue and the determination. The present case is purely a matter of statutory interpretation in respect of a novel legal issue because there is no factual dispute. Given Mr Smith has indicated he will plead guilty to the charge if this appeal is dismissed, the Judge’s ruling is essentially determinative of the charge. Finally, it is preferable to grant leave to appeal now rather than have Mr Smith enter a guilty plea “under protest” and then appeal his conviction. Mr Bourke submits if there is jurisdiction, this Court should hear the application for leave together with the substantive appeal at an oral hearing.
• [16] For the Crown, Ms Brooke submits there is no jurisdiction to hear the proposed appeal. The charge is not determined by the Judge’s ruling, nor did the Judge’s decision “relate to” the determination of the charge. In this case, the Judge’s ruling was that there was sufficient evidence to prove the charge. Ultimately, that is a question for the fact finder and one Mr Smith can test should he take the matter to trial. Mr Smith indicating he would plead guilty does not make the Judge’s ruling a determination of the charge, it is simply Mr Smith recognising the strength of the case against him.
• [17] If there is jurisdiction to hear the appeal, Ms Brooke says leave should not be granted because there are two remedies still available to Mr Smith: (1) defending the charge at trial, and (2) bringing a conviction appeal if found guilty. Given Mr Smith is remanded in custody on other charges, refusing leave on the basis the matter is best pursued as an appeal against conviction will not materially impact his circumstances.

Analysis

• [18] As already indicated, we do not consider there is jurisdiction to appeal the Judge’s decision because it was neither the determination of the charge nor related to the determination of the charge.^[13]
• [19] We agree with the Crown that there is a lack of clarity as to the nature of the Judge’s decision. The question posed appears to have related to whether the legislature intended Mr Smith’s actions to be captured by the charge and/or the interpretation of the relevant provision. Legislative intent is not relevant to a prosecution and there is no procedure by which a Judge can give a ruling as to statutory interpretation under the Criminal Procedure Act other than under s 147. While the Judge did not conceptualise his decision in this way, we consider the “application” could only be heard as an application under s 147 and was, in effect, treated that way. The decision read as a whole involved the Judge assessing the evidence against the elements of the offence of abduction and concluding the “elements of the offending ... are met”.^[14]
• [20] It is well established that a refusal to dismiss a charge under s 147 is not amenable to appeal under s 296 because it does not relate to the determination of the charge.^[15] The same principles apply here.
• [21] Even if the decision could be conceptualised in some other way, it remains the case that there is no jurisdiction because the ruling did not determine the charge, nor does it arise in proceedings that relate to determination of the charge, rather it related to whether there was sufficient evidence to establish requisite intent.
• [22] Mr Smith still has a number of options available to him in respect of the charge, including pleading guilty or proceeding to trial. Our conclusion is not swayed by Mr Smith’s “promise to plead”. The focus of the s 296(3) analysis is on the Judge’s decision. Mr Smith’s response to this decision would be what determines the charge, not the decision itself.
• [23] Given this decision is focused on the issue of jurisdiction, we do not consider it necessary to engage with the test for leave and Mr Bourke’s submission that it is more desirable to hear the appeal now rather than have Mr Smith plead guilty “under duress”. We note for completeness, however, that Mr Smith would have a right of appeal to this Court against any conviction for abduction where matters he seeks to raise on this proposed appeal could be pursued.

Result

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

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 210(1).

^[2] R v Smith [2024] NZDC 21886 [decision under appeal].

^[3] See Mathew Downs (ed) Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) at [CA210.01].

^[4] Decision under appeal, above n 2, at [14].

^[5] At [19]–[25].

^[6] At [27].

^[7] At [32].

^[8] At [33]–[34].

^[9] At [37].

^[10] At [42].

^[11] At [43].

^[12] At [48].

^[13] Criminal Procedure Act 2011, s 296(3).

^[14] Decision under appeal, above n 2, at [43].

^[15] See, for example, Taueki v Police [2021] NZSC 125 at [3]; Cameron v R [2021] NZSC 110, [2010] 1 NZLR 530 at [63]; D (CA716/2015) v R [2016] NZCA 190 at [14]; Rowell v Commissioner of Inland Revenue [2016] NZCA 471 at [21]–[22]; and Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [46].