Kim v Police
[2015] NZHC 2543
•16 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000134 [2015] NZHC 2543
BETWEEN WILSON KIM
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 October 2015 Appearances:
Appellant in Person
Tom Refoy-Butler for the RespondentJudgment:
16 October 2015
JUDGMENT OF MOORE J [Appeal against conviction and sentence]
This judgment was delivered by me on 16 October 2015 at 11:00am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
KIM v NEW ZEALAND POLICE [2015] NZHC 2543 [16 October 2015]
Introduction
[1] On 9 January 2014 Wilson Kim became embroiled in an argument with an elderly fellow Korean, Mrs Hyum Ok Kim (“Mrs Kim”). The argument escalated with the protagonists exchanging insults. Mrs Kim then began to hit Mr Kim with a peaked hat.
[2] She claims that Mr Kim, using both his hands, pushed her very forcibly backwards causing her to topple and land on her back causing moderately severe injuries.
[3] Mr Kim was charged with a single charge of male assaults female. He disputed the claims of Mrs Kim. He said he never touched her. Instead, he said that Mrs Kim launched herself at him and in doing so fell forward.
[4] At the Judge-alone trial Mr Kim represented himself. In addition to Mrs Kim the Police called two neighbours whose evidence largely supported the account given by Mrs Kim. Mr Kim gave evidence and called three witnesses, two of whom gave evidence which tended to support Mr Kim’s account.
[5] Judge Hinton found the charge proved and remanded Mr Kim for sentence.
[6] Some months later his Honour sentenced Mr Kim to supervision for a period of 12 months with a special condition he attend an anger management programme. He ordered that Mr Kim make an emotional harm reparation payment of $1,500 to Mrs Kim.
[7] Mr Kim now appeals his conviction and sentence.
Factual and procedural background
[8] Mr Kim, who it seems is not related to the complainant, immigrated to
New Zealand when he was 14. He is now aged 47.
[9] On 9 January 2014 he received a telephone call from an elderly and infirm Korean woman, Mrs Song. Mrs Song asked him if he would assist her with translating a letter she had received from Greenlane Hospital. Mr Kim agreed to help.
[10] Later that afternoon Mr Kim drove the short distance from his home to Mrs Song’s home in Northcote. In the car with him was his 4-year old daughter and Mr Kim’s puppy.
[11] Mrs Song lived in a modest one-storey unit which is part of a complex of similar units. On arriving outside Mrs Song’s unit, Mr Kim’s daughter and the puppy ran ahead and, it seems, into Mrs Song’s unit. Mr Kim, who was following, then heard female screams coming from Mrs Song’s unit. He rushed inside. Once inside he realised the screaming was coming from Mrs Kim. He knew Mrs Kim from their local Korean church. He saw her hitting the dog with a hat and yelling that he was not to bring dogs around.
[12] Mrs Kim is a woman in her mid-70s. She is well known to Mr Kim. Her son is the minister of the local Korean church. The evidence was that on occasions Mr Kim would take Mrs Kim to church. It seems well accepted that Mr Kim knew Mrs Kim did not like the dog and may have been frightened of it.
[13] In any event, Mrs Kim continued her screaming. Insults were exchanged. Whether the initiator was Mrs Kim or Mr Kim does not need to be resolved for the present purposes. However, Mrs Kim made highly derogatory and offensive comments about Mr Kim’s education and parents. The evidence was that comments of that sort are deeply insulting in the Korean culture. Mr Kim retreated back out the door and down a set of concrete steps onto a path. Mrs Kim followed him. She continued the verbal abuse. Mr Kim responded. He directed an insult in the Korean language towards Mrs Kim. He used a word which is offensive to a Korean woman. He also called her a crazy woman and accused her of causing the death of her husband, a claim which apparently has a particularly insulting connotation in the Korean culture.
[14] Mrs Kim said she struck Mr Kim on the forearm with her cap. They were facing each other. Other witnesses said she struck Mr Kim more than once.
[15] The Police case was that at this stage Mr Kim pushed Mrs Kim with considerable force, causing her to fall backwards onto the grassed area beside the path. Mrs Kim said she lost consciousness and then crawled away and summonsed help. After that she said Mr Kim left with his child and dog. Mrs Kim reported that she had various injuries including swelling to the left rear of her head, a bruised shoulder and a fracture in one of the vertebra of her neck. The neck injury, in particular, was not discovered for some days. Mrs Kim said that for two or three days after the incident she was unable to sleep as a result of the pain and discomfort. She decided to go to hospital where she was examined. X-rays disclosed that she had suffered a fracture through the right side of the posterior arch of her C1 vertebra and she had a contusion on her left shoulder.
[16] In addition to Mrs Kim the Police called two eye witnesses, Mr Tangaroa and Ms Webb. Mr Tangaroa, who lives in a unit a short distance from Mrs Song’s, said he heard arguing and saw a man and a woman outside Mrs Song’s flat. He then saw the man push the woman “very hard” and “… she went flying backwards on her back … and [Mr Kim] was talking in her language to her.” He described the push as “the push of a man.” He said that the man then stood over the top of the woman impeding her ability to get up. Then he saw another woman throwing water over the woman on the ground from a jug. He said the woman on the ground got up and ran to the unit next door calling for help.
[17] Ms Webb, who is Mr Tangaroa’s adopted sister, also viewed the altercation from Mr Tangaroa’s flat. From the photographs Mr Tangaroa’s unit would appear to be somewhere between 30 and 50 metres from Mrs Song’s. The photographs show a clear line of vision from Mr Tangaroa’s flat to the area outside Mrs Song’s unit. Ms Webb described the man pushing the woman using both hands on her chest and actually throwing her off the ground describing her as going “flying … and [hitting]
… the grass area …”. She could see that the woman was injured and in pain. She said the man stood over the woman who tried to run away. She saw her run off to the flat next door. In the meantime the man grabbed his dog and walked away.
[18] Mr Kim gave evidence. He described how it was that he came to visit Mrs Song. He described how Mrs Kim abused him in Korean language and why, in Korean culture, it was so offensive. He admitted that he had responded in a verbally abusive and offensive fashion.
[19] He said he walked out but was pursued by Mrs Kim who he said was touching him with her hands. He said he ignored her. When he offered the insult to Mrs Kim about killing her husband she chased him towards the gate. It was then she fell forward. He said that was the only time she fell.
[20] Mrs Song gave evidence in Mr Kim’s defence. She described being in her unit with Mrs Kim when the dog entered her apartment. This caused Mrs Kim to react angrily. She explained how the insult directed at Mr Kim about his parentage was deeply offensive. She described indicating to Mr Kim he should leave and Mr Kim retreating while Mrs Kim continued her abuse and insults. She then saw Mrs Kim hitting Mr Kim with a hat one or two times but could not say whereabouts on Mr Kim’s body. She said she did not see Mrs Kim chasing Mr Kim and made no reference to seeing her fall over.
[21] The only other witness called by Mr Kim who witnessed these events was Mr Turner who lived two units away. He remembered hearing very loud female screaming. He went out onto his veranda but could not see anything due to the vegetation. Because it was in a foreign language and he could not understand what was being said, he said he quickly lost interest and went back inside. However, the noise continued. He described it as “obnoxious” and so he went back out intending to say something. It was at this point he said he saw Mrs Kim out on the lawn screaming abuse. He said he saw her move forward, crouch and then she threw herself forward. Mr Turner said he shrugged and went back inside having lost interest in what was happening. He said he never saw Mr Kim. He said he could not see down to the steps. He conceded that the overwhelming proportion of the events was not seen by him. He also said the vegetation between his unit and Mrs Song’s limited his vision. He accepted that he possibly would not have been able to see Mr Kim pushing Mrs Kim. He agreed the pushing well may have occurred while he was inside.
[22] The hearing in the District Court at North Shore occupied two days. It appears that in order to complete the evidence on the second day the Court sat extended hours.
[23] Even allowing for the extensive use of the interpreter for Mrs Kim and Mrs Song, the transcript occupies nearly 200 pages. It is apparent from the notes of evidence that the Judge extended to Mr Kim a remarkable degree of tolerance and latitude. Mr Kim’s cross-examination of witnesses was often repetitive, argumentative and on numerous instances was in breach of the rules of evidence. It is clear that the Judge allowed this indulgence in order to ensure that Mr Kim was able to fully explore the issues and present his defence as best he could.
[24] Mr Kim’s challenges to the evidence included a claim that the Korean Police officer who took Mrs Song’s first statement had intimidated her by telling her she could be arrested if she did not tell the truth. He accused Mr Tangaroa of lying to help Mrs Song who had given him goods because he was a “good neighbour”. 1 He asked Mr Tangaroa whether, if Mrs Song had asked him to lie in Court, he would do so. Mr Tangaroa answered, “No”. He asked Ms Webb whether she was lying in
order to protect Mrs Kim because the latter had lied to the Police, a claim Ms Webb vehemently denied.
[25] When leading evidence from his own witnesses, Mr Kim persisted in asking patently leading questions in areas which were obviously contentious. The Judge courteously and patiently explained to Mr Kim how questions should be phrased to avoid transgression. Despite this, Mr Kim continued to ask leading questions or engage in argument with witnesses.
[26] On other occasions Mr Kim complained that his witnesses were being intimidated by others in the Courtroom. However, these witnesses advised the Court
this was not the case.
1 In his evidence-in-chief Mr Tangaroa said he helped everyone in the community out but he did not like being bribed. He said he had been bribed while he had been living at the address. In re- examination it became apparent that to Mr Tangaroa the word “bribe” meant the provision of gifts in the form of food in exchange for assistance such as gardening. In such circumstances he said he returned the gifts. Even when he returned the gifts they would be returned either by being left at his door or being passed through his window.
[27] Sometimes when the Judge was addressing Mr Kim or a witness, Mr Kim would interrupt and had to be directed to be quiet.
[28] Occasionally, while ostensibly leading evidence, Mr Kim would give the witness his version of what occurred. There were also exchanges between Mr Kim and the Korean interpreter with Mr Kim interrupting the proceedings to advise the Court that the interpretation was incorrect.
[29] During Mrs Song’s evidence Mr Kim put her two previous statements to her; as well as the statement made to the Korean Police officer and a subsequent sworn statement obtained by Mr Kim. This, apparently, was for the purpose of reminding Mrs Song of what she had previously said. Mrs Song said that she signed the Police statement because the officer told her that if she gave false evidence she would be arrested.
[30] At one point, the Judge had to interrupt the proceedings due to Mr Kim’s conduct. He would emit loud sighs when the witnesses gave evidence which displeased him and burst into giggles when the interpreter said something he disagreed with. The Court intervened as follows:
“THE COURT
You have been performing a lot in the day and we have tried to help.
MR KIM
I didn’t put [inaudible …]
THE COURT
We have tried to help you with the procedure. I had to take it slowly. When we tried to help you with your witnesses, we have tried to help you with how you should ask questions, we have allowed you to interrupt the Judge, till it annoyed me so much that I had to say something about it. We’ve gone over the morning adjournment time, we have gone over the luncheon time, we are bending over backwards to get this matter heard for you. Stop your noises, [the] sergeant is quite right, your sighs, your giggles, your interruptions, like you just interrupted me just there.”
District Court decision
[31] Judge Hinton, in a detailed 69 paragraph decision, recorded that Mr Kim had represented himself and had been extended considerable latitude in the presentation of his case.
[32] The Judge noted there was no dispute as to the time, date or place. The sole issue was whether Mr Kim had pushed Mrs Kim causing her to fall and sustain her injuries. He pointed out Mr Kim’s defence was that no such push had taken place and that Mrs Kim’s motive in bringing the complaint was all part of a wider conspiracy within the church both attended to damage and embarrass him.
[33] He noted Mr Kim accepted that Mrs Kim had ended up on the ground but claimed she had deliberately fallen and as such the injuries were self inflicted.
[34] His Honour correctly directed himself on the standard and onus of proof and the elements of a charge of assault before turning to discuss the evidence of each of the witnesses.
[35] He described Mrs Kim as forthright and straightforward. He said that she demonstrated what happened and did not appear to him to be exaggerating. While alert and assertive in cross-examination her responses appeared to be genuine. She accepted that she hit Mr Kim with her cap and that this may have occurred more than once.
[36] The Judge then dealt with Mr Tangaroa’s evidence describing him as a very good witness. He accepted Mr Tangaroa’s evidence that he saw a forceful push by Mr Kim and concluded there was no room for a mistaken view of the incident. He described him as a credible witness. The Judge then discussed Ms Webb’s evidence in similar terms.
[37] In relation to Mr Kim’s description of Mrs Kim’s fall to the ground the Judge did not accept that Mrs Kim made a rushed, heavy fall to the ground or that it occurred when she chased Mr Kim. He pointed out that each of the prosecution witnesses referred to a reasonably forceful push delivered in the course of a vigorous
verbal exchange which his Honour noted was no doubt formed out of previous tensions between the parties but which was inflamed when Mr Kim’s dog arrived at the premises.
[38] The Judge observed that Mr Kim’s explanation for Mrs Kim’s fall contrasted dramatically with the testimony of the witnesses. In doing so his Honour referred to the evidence of Mr Turner pointing that he did not see any exchange with Mr Kim. He concluded that what Mr Turner had seen was more likely to have been after the assault because Mrs Kim was unable to get straight to her feet. He pointed out that Mr Turner had frankly acknowledged that he had not seen everything.
[39] On Mrs Song’s evidence his Honour observed there was not a lot overall which could be taken from it. He said Mrs Song gave the impression of being confused when giving her evidence as she may also been when the events unfolded on 9 January 2014. In any event, the Judge observed that it may well have been that Mrs Song found herself caught in the middle and was struggling to come to terms with the dispute between Mr Kim and Mrs Kim against the background of a common church connection. However, the Judge said he was assisted by Mrs Song’s evidence on the significance of Korean custom and the use of insults.
[40] On the question of Mr Kim’s allegations that Mrs Kim was part of an overall conspiracy to discredit Mr Kim, his Honour found Mr Kim’s explanation unattractive. He explicitly found that he preferred the evidence of the prosecution witnesses and was thus satisfied Mr Kim pushed Mrs Kim.
[41] He also noted there was no credible alternative explanation to account for
Mrs Kim’s injuries.
[42] His Honour thus found he was satisfied that the application of force was intentional and reasonably forceful and that the prosecution had proved the charge beyond a reasonable doubt.
Grounds of appeal
[43] Mr Kim’s notice of appeal against conviction and sentence records that the
Judge made the wrong decision and that:
“my witness was interfered with Jane (sic) Mrs Kim’s friend. The facts the
Judge found are wrong.”
[44] Additionally, Mr Kim has filed several voluminous documents listing the numerous complaints he has in relation to the proceedings, the evidence and the Judge’s decision. These documents include:
(a) A six page typed letter which appears to be addressed to Judge Hinton listing 35 complaints related to his decision. The document is dated
22 October 2014 and bears the seal of a Justice of the Peace.
(b)A 13 page typed document headed up, “Questions for Hyum Ok Kim (Mrs Kim)” which apologises to Mrs Kim for the insult Mr Kim uttered to her concerning her husband’s death. The letter also asks the Judge to extend her an amnesty to tell the truth. References are made to the impossibility of Mr Kim assaulting Mrs Kim in the way
alleged2 as well as other numerous and detailed criticisms of the
evidence, the trial and the Judge’s decision. This document is also
dated 22 October 2014 and bears the seal of a Justice of the Peace.
(c) A 13 page typed document which appears to be a paragraph by paragraph analysis of Judge Hinton’s judgment. The document has a handwritten notation recording that it was filed in this Court on
21 August 2015.
(d)A one page document signed by Mr Kim dated 30 August 2015. It is headed, “The grounds for appeal” and lists 12 individual matters which include claims that Judge Hinton did not give Mr Kim the
opportunity to cross-examine, that the Police did not adduce medical
2 Mr Kim claims he was holding a child and so could not have used two hands to push her, as alleged.
evidence in support of the cause of Mrs Kim’s injuries, that the Korean Police officer threatened Mrs Song, that the Crown did not prove that the two prosecution witnesses (Mr Tangaroa and Ms Webb) were actually at the scene at the relevant time, that the Judge’s “shallow understanding” of Korean culture lead to him giving too much credit to the evidence of Korean community leaders and the Korean Police officer, the Judge too readily dismissing Mr Turner’s evidence and a recommendation that the Police should organise polygraph tests.
[45] However, despite their volume and detail these various grounds appear to fall into the following general categories of complaint:
(a) the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred;
(b)the Judge erred in not providing Mr Kim with greater opportunity to cross-examine the prosecution’s witnesses;
(c) the Judge did not understand the cultural background; and
(d) other miscellaneous matters.
[46] I shall deal with each of these issues as well as the various sub-issues which appear to have been raised. But before doing so I propose to deal with the evidence which Mr Kim seeks to adduce on this appeal.
Fresh evidence
[47] Mr Kim seeks to place before this Court further evidence in the form of the statutory declaration of Mr Pacey and Mrs Song’s affidavit of 19 August 2015.
[48] The statutory declaration from Mr Pacey says he met with Mr Turner and Mr Kim at a Northcote coffee bar in February 2014 where Mr Turner requested to make a statutory declaration and that he was not influenced by Mr Kim. The
affidavit from Mrs Song was sworn on 19 August 2015. In it she says that Mr Kim could not have pushed Mrs Kim with both hands because he was holding his daughter at the time. She also said she did not pour water on Mrs Kim’s face. She said that Mrs Kim was seated on the ground and was verbally abusing Mr Kim. She hit Mr Kim with the cap and then walked back to her house.
[49] Section 335 of the Criminal Procedure Act 2011 provides a special power to appellate Courts hearing appeals against conviction or sentence, or in cases of contempt, to accept further evidence that would have been admissible at trial. This can be by way of the examination of witnesses, the production of documents, the appointing of an expert or referral of a discrete question to a special commissioner. The section specifies that such orders are to be made if the appeal Court “thinks it necessary or expedient in the interests of justice”.
[50] This section gives explicit recognition to a power which the Court previously claimed under the right of appeal for a miscarriage of justice.3 Pursuant to this power, the Court would consider fresh evidence if it was of a nature sufficient to establish a miscarriage of justice. The overarching test was whether there was a miscarriage of justice.4
[51] Under this former test, the Court of Appeal in R v Bain described the role of the appellate Court as acting as a screen through which new evidence must pass.5
The Court applies three different controls on the evidence, asking whether it is fresh, whether it is credible and whether admitting it would alter the outcome of the trial.6
None of these criteria is binary or absolute, however. As Tipping J observed:
“The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.”
3 Crimes Act 1961, s 381(1)(c), now repealed.
4 R v Arnold [1985] 1 NZLR 193 (CA) at 196.
5 R v Bain [2004] 1 NZLR 638 at [25]-[26].
6 At [26]-[27].
[52] In R v Sungsuwan, in a broader context, Tipping J framed a miscarriage of justice in this way:7
“First, something must have gone wrong with the trial or in some other relevant way. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe. The presence of a real risk that this is so will suffice.”
[53] It is clear that where a miscarriage of justice has resulted from evidence not being adduced at trial, that evidence will be able to be admitted on appeal regardless of whether it is fresh.8 Where the evidence is significant, but failure to adduce it has not clearly led to a miscarriage, it will be necessary to balance the three factors set out in Bain to determine whether the evidence should be admitted.
[54] None of the evidence Mr Kim seeks to adduce is particularly fresh. Both witnesses were available at trial. Indeed, Mrs Song actually gave evidence at the trial. The primary difference between her evidence at trial and the material contained in her affidavit is that in the latter she says she saw Mrs Kim seated on the ground and verbally abusing Mr Kim. Mrs Song says that after a while Mrs Kim asked for the cap with which she hit Mr Kim and then returned to her home. She explained that at trial she had to wait a long time without meals or medication. She described herself as exhausted. The affidavit also covers other issues but in my view these are largely peripheral to the primary question.
[55] The statutory declaration of Mr Pacey adds nothing to the relevant facts. It simply records that in making his statement Mr Turner said he would not be influenced by anything which Mr Kim said and that he would only record what he saw.
[56] I do not see how Mr Pacey’s statutory declaration can assist on any issue
which I am required to decide. Accordingly I am not prepared to admit it.
7 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
8 See, for example, Banks v R [2014] NZCA 575 at [27]-[28].
[57] Mrs Song’s affidavit is in a different category. It provides some support for Mr Kim’s account that Mrs Kim fell and Mr Turner’s account that she was crouched and threw herself forward. Given that this appears to be the fourth account Mrs Song has given in relation to these events, 9 including the evidence she gave at the trial, the evidence is not fresh. However, in the circumstances, I am prepared to admit it although in doing so I am prepared to give it only limited weight.
Analysis
Did the Judge err in his assessment of the evidence to such an extent that a miscarriage of justice has occurred?
[58] The central issue for the Judge to determine was whether there was sufficient evidence for him to be satisfied beyond a reasonable doubt that Mr Kim deliberately pushed Mrs Kim. In doing so his Honour was required to consider the account given by Mr Kim and his witnesses before excluding Mr Kim’s account as a reasonable possibility.
[59] In doing so the Judge took into account factors such as the respective witnesses’ line of sight, the distance from what they were observing, the consistency of their account with other witnesses and whether there might be any reasons which may affect the witnesses’ reliability or credit. Mrs Kim impressed the Judge with her forthrightness and fairness. In particular, the Judge noted that she accepted that she had hit Mr Kim with her cap. This was a reasonable conclusion for Judge Hinton to make.
[60] The Judge was also entitled to assess Mr Tangaroa as a credible witness. That part of the altercation between Mr Kim and Mrs Kim which occurred outside the flat was witnessed by Mr Tangaroa who knew neither Mr Kim nor Mrs Kim although he did know Mrs Song because she was a resident in the complex. The photographs show that Mr Tangaroa would have had a direct line of sight to the
outside of Mrs Song’s unit. The Judge, in my view, was correct to note that there
9 The three previous statements made by Mrs Song include the statement she made to the Korean constable following the incident on 9 January 2014, an affidavit dated 26 March 2014 in which Mrs Song was critical of the circumstances in which her first statement was taken and the evidence Mrs Song gave at the trial.
was no room for Mr Tangaroa to be mistaken in what he saw. It is correct that Mr Tangaroa was, from time to time, given gifts of food from some of the residents who he assisted in performing odd jobs like gardening from time to time but there was no evidential basis upon which to conclude that he was partisan or biased in his evidence in favour of Mrs Song. Indeed, Mr Kim cross-examined Mr Tangaroa on this point and put to him directly that he had lied because he wanted to protect his elderly neighbours. Mr Tangaroa denied he had lied.
[61] Ms Webb was in a similar position. Her evidence was consistent with Mr Tangaroa which, given that they both viewed the incident from the same vantage point, is unsurprising. Again, Mr Kim put it to her that she had lied in order to protect Mrs Kim.
[62] Mr Kim placed some significance on the difference between Mrs Kim’s account that after being pushed she had crawled away whereas both Mr Tangaroa and Ms Webb said that Mr Kim stood over Mrs Kim before Mrs Kim got to her feet and ran to the house next door. While this detail is difficult to resolve on its face it is an inconsistency which I do not regard as fatal in terms of the Judge’s assessment of the witnesses’ reliability or credibility. Mrs Kim, Mr Tangaroa and Ms Webb all said that Mr Kim pushed Mrs Kim near her chest causing her to fall backwards onto the ground. Neither Mr Tangaroa nor Ms Webb knew Mrs Kim. There was no credible factual basis to support any alleged motive or reason for them to lie.
[63] On the evidence the Judge was entitled to exclude as a reasonable possibility Mr Kim’s exculpatory account. Additionally the Judge was entitled to give limited weight to the observations of Mr Turner. As the Judge recorded, Mr Turner frankly conceded that his line of view was impeded by vegetation. On his own evidence, Mr Turner accepted that a large portion, probably 95 per cent of what happened, was not witnessed by him. In fact he never even saw Mr Kim at any point. He only saw Mrs Kim. He did, however, state that he saw Mrs Kim crouch and go forwards on her hands and knees sometime after hearing a female scream. The Judge was correct to disregard Mr Turner’s evidence insofar as it was relevant to the claim that it supported Mr Kim’s account. It was common ground that Mrs Kim was on the ground during the altercation but it was not possible to determine from Mr Turner’s
evidence at which point in the sequence involved in the whole incident when what he described occurred. This was in contrast to the evidence of Mr Tangaroa and Ms Webb who witnessed all of what happened outside Mrs Song’s unit.
[64] I also agree with the Judge that Mrs Song’s evidence did not add materially. She was clearly distressed by the language and the abuse and although she said she could clearly see what was happening outside she said she did not see Mrs Kim chasing Mr Kim. She saw Mrs Kim hitting Mr Kim with the cap several times but did not say she saw Mr Kim push Mrs Kim. Her affidavit does state that Mrs Kim fell on her face when she rushed to hit Mr Kim. But given that this is her fourth attempt to describe the events and was made seven months after the incident and she was plainly deeply distressed at the time little if any weight can be given to its reliability. I note in passing that in her affidavit Mrs Kim states the events took place on 22 January 2014 when it is common ground it occurred on 9 January 2014.
[65] The Court must also not lose sight of the fact that Mrs Kim was injured. Mr Kim does not accept the injuries were caused as a result of any push by him. If Mr Kim is correct this means the only alternative possibilities are that either Mrs Kim injured herself when she fell forward as Mr Kim was leaving the property or the injuries were caused some time in the following days before Mrs Kim was admitted to hospital and the vertebral fracture diagnosed. Given the nature of the injuries I regard neither of those possibilities reasonably possible.
[66] Certainly, Mr Turner’s description of seeing Mrs Kim crouched and then throwing herself forward and Mrs Song’s most recent account in her affidavit of her sitting on the ground and verbally abusing Mr Kim does not lie comfortably with the reported injuries.
[67] I am satisfied that not only was it open to Judge Hinton to find as a matter of fact that Mr Kim pushed Mrs Kim but, on the evidence before him, that such a conclusion was unavoidable. In particular I consider that any variations between the prosecution’s witnesses’ accounts are explicable given that this was a highly volatile and fast moving altercation which the evidence shows was over in a matter of minutes.
Did the Judge err in not providing Mr Kim with more opportunity to cross-examine
the prosecution’s witnesses?
[68] Not only was Mr Kim given a reasonable opportunity to cross-examine the key prosecution witnesses but he did cross-examine each of the witnesses and was extended considerable latitude in the way those questions were put. Aspects of this have already been discussed.
[69] Mr Kim directly challenged both Mr Tangaroa and Ms Webb that their accounts were untruthful and were motivated by a desire not to alienate themselves from their elderly neighbours.
[70] Mr Kim does not elaborate or give examples from the record on how the Judge limited his cross-examination. However, a review of the trial transcript does not bear out this criticism. Indeed, on at least two occasions, Mr Kim was provided with an opportunity to re-open his cross-examination and one occasion a witness, the Korean constable, was recalled to enable Mr Kim to cross-examine him.
Did the Judge misunderstand the cultural background?
[71] Several of the Korean witnesses, including Mr Kim, gave evidence in relation to material aspects of the Korean culture. In particular, Mrs Song was asked of her opinion on the gravity and offensiveness of the insults and language used by Mrs Kim.
[72] In any event, the relevance of the nature of the offensive remarks is limited. While Mr Kim was understandably upset by what Mrs Kim was saying about him his evidence was that he walked away and it was Mrs Kim who followed him.
Other miscellaneous matters
[73] For completeness I shall deal with some of the other matters raised by
Mr Kim in the papers which have accompanied this appeal.
[74] Mr Kim alleges that Mrs Song was continuously threatened and manipulated
by Mrs Kim’s friend Jane in the weeks before the hearing. His notice of appeal
explicitly refers to this. This claim is not developed by Mrs Song in her affidavit although she does refer to a person by the name of Jane visiting her a couple of weeks before the hearing. Apparently Jane brought her meals from time to time and is alleged to have told her that Mrs Kim had two witnesses and that Mr Kim would be defeated in Court. Mrs Song said this contributed to her stress. It is not clear who Jane is. However, even if such a statement was made, it does not amount to continuous threatening or manipulation in such a way which would have likely affected Mrs Song’s evidence at trial and thus lead to or contributed to a miscarriage of justice.
[75] Mr Kim is also critical of the Korean constable who he says arrived with a pre-prepared statement for Mrs Song to sign and threatened her to tell the truth. This evidence was adduced at Mr Kim’s trial. Mr Kim extensively cross-examined the Korean constable who denied it and he examined Mrs Song on the issue. Even if Mr Kim’s claims are correct it is not clear what effect he says this had on the trial. Telling Mrs Song she was obliged to tell the truth is hardly likely to contribute to a miscarriage particularly if she heeded the advice.
[76] Mr Kim was also critical that the Police did not undertake enquiries to determine whether Mr Tangaroa and Ms Webb were actually present at the scene at the time they claimed. He submits the Police should have undertaken bank enquiries to “… prove that they were not out spending … money at the time”. In the absence of any evidence indicating that the witnesses may not have been present at the time of the incident there was no necessity, let alone obligation on the Police to make such an enquiry.
[77] Finally, Mr Kim submits that he and the other key witnesses should be subjected to polygraph testing. Putting to one side the reliability of this technology, as I have already indicated there is ample evidence before the Court for Judge Hinton to satisfy himself to the high criminal standard that Mr Kim pushed Mrs Kim in the fashion described by the three principal prosecution witnesses.
[78] It is also worth noting that polygraph testing has not received wide support from New Zealand Courts and provide no substitute for the well established rules of
evidence which have now received the imprimatur of the legislature. Should it become necessary to replace the current practice of fact finding by either Judge or jury by reference to admissible evidence, that is a question best left to Parliament. In the meantime I adopted the comments of the Court of Appeal in Jaffari v Grabowski:10
“The results of a polygraph test have no bearing on whether the Judge’s strong credibility findings against [the appellant] might be unsafe.”
[79] For these reasons I am satisfied that no miscarriage of justice has occurred. Mr Kim received a fair trial. There were no errors or irregularities which were such as to depart from good practice in a manner which was so gross, so persistent, so prejudicial or so irremediable that this Court must quash the decision.
[80] It follows that in the circumstances the appeal against conviction must be dismissed.
Sentence appeal
[81] Although it appears that Mr Kim also appeals against the sentence imposed, neither in his extensive written submissions nor during his oral submissions before me has he advanced this aspect of his appeal. That is hardly surprising. The crime of male assaults female carries a maximum term of imprisonment of two years.11
Mr Kim was sentenced to supervision for a period of 12 months and ordered to make
an emotional harm reparation payment of $1,500 to Mrs Kim.
[82] The Judge determined as a matter of fact that the force used by Mr Kim was not minor. He found it was “reasonably forceful”. Furthermore, Mr Kim’s victim was aged 73 and the injuries she received were significant.
[83] No pre-sentence report was provided because attempts by Probation to contact Mr Kim were unsuccessful and, according to Judge Hinton, Mr Kim said that he was interested in neither probation nor a pre-sentence report.
10 Jaffari v Grabowski [2014] NZCA 399 at [16].
11 Crimes Act 1961, s 194(b).
[84] It is plain from the Judge’s sentencing remarks that Mr Kim vehemently maintained his innocence and repeatedly told the Judge that he had made a mistake in his decision.
[85] The availability of a discharge without conviction under s 106 of the Sentencing Act 2002 was specifically raised by the Judge at Mr Kim’s sentencing. The Judge explained the process required to make such an application. The sentencing notes record that Mr Kim said he did not wish to pursue that course.
[86] In this Court I raised the issue afresh and indicated to Mr Kim I would be prepared to consider an application for a discharge without conviction if Mr Kim wished. As was the case in the District Court, Mr Kim was adamant that he did not seek a discharge.
[87] On any analysis the sentence imposed was a lenient and merciful one which no doubt reflected the unusual cultural aspects of the case, Mr Kim’s strongly held religious views and the fact that he came to Court with a previously unblemished record.
[88] The sentence appeal is dismissed.
Result
[89] The appeals against conviction and sentence are dismissed.
Moore J
Solicitor:
Crown Solicitor, Auckland
Copy to:
The Appellant
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