Kim v The Queen - [2016] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

CA660/2015
[2016] NZCA 210

BETWEEN	WILSON (SANG WON) KIM Applicant
AND	THE QUEEN Respondent

Court:

French, Asher and Williams JJ

Counsel:

Applicant in person
M L Wong for Respondent

Judgment:

(On the papers)

18 May 2016 at 2.30 pm

JUDGMENT OF THE COURT

AThe application to adduce further evidence is declined.
BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

The applicant, Mr Kim, was found guilty by Judge Hinton in the North Shore District Court on 14 October 2014 of one count of male assaults female.[1] The Judge sentenced him to 12 months’ supervision and ordered that he pay $1,500 in reparation.[2] The victim was Mrs Yeon Ok Kim. The two are not related.
[1]New Zealand Police v Kim DC North Shore CRI-2014-044-550, 14 October 2014.
[2]New Zealand Police v Kim [2015] NZDC 10543.
A subsequent appeal against conviction and sentence was dismissed by Moore J in the High Court at Auckland on 16 October 2015.[3] Mr Kim now seeks leave to bring a second appeal against both conviction and sentence.[4]
[3]Kim v New Zealand Police [2015] NZHC 2543.
[4]Leave is required pursuant to ss 237 and 253 of the Criminal Procedure Act 2011.
He submits there is new evidence available from a defence witness, Mrs Song. He also submits Moore J’s decision contained a number of errors that (we infer) were sufficient to cause justice to miscarry.
By minute dated 2 December 2015 Miller J directed the application for leave to appeal and to adduce new evidence be dealt with separately from the substantive appeal and on the papers.

The facts

On 9 January 2014 the applicant went to the home of Mrs Song, a Korean woman in her 80s. He had with him his daughter, who was four years old, and his dog. Mrs Kim was also at the address. She knew Mr Kim as they attended the same church. It seems Mrs Kim never liked Mr Kim’s dog. Mrs Kim is also Korean. She is in her mid-70s. A verbal altercation between the two broke out over the dog and Mrs Kim began hitting the applicant with her hat. Mr Kim retreated outside pursuant, it appears, to a signal from Mrs Song that he should leave rather than add to the fuss that was being generated.
Judge Hinton then found, relying on evidence from the victim and independent bystanders, that once outside Mr Kim forcibly pushed Mrs Kim backwards.[5] She fell on the ground. She suffered from swelling to the left rear part of her head, a contusion on her left shoulder, and a fracture to the posterior arch of her C1 vertebra.

In the District Court

[5]New Zealand Police v Kim DC North Shore CRI-2014-004-559, 24 November 2014 at [68].

Mr Kim represented himself before Judge Hinton, and, as the Judge records, he was given considerable latitude with respect to court room behaviour and…

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 Kim v The Queen

Details

AGLC: Kim v The Queen [2016] NZCA 210
Case: [2016] NZCA 210
Decision Date: 18 May 2016 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Wilson, Asher, and Williams JJ considered the case of Kim v The Queen. The applicant, Mr Kim, sought leave to appeal against his conviction and sentence for assaulting Mrs Yeon Ok Kim. The case originated from a District Court decision in 2014, which was upheld in the High Court in 2015. Mr Kim now sought to appeal again on the basis of new evidence and alleged errors in the High Court judgment.

The primary legal issues before the Court were whether Mr Kim could adduce new evidence from Mrs Song, and whether there was sufficient basis for a second appeal. The Court needed to determine whether the new evidence was fresh and credible, and whether a miscarriage of justice had occurred or was likely. Additionally, the Court assessed whether the appeal raised a matter of general or public importance warranting a second appeal.

The Court of Appeal declined the application to adduce further evidence and the application for leave to appeal. The Court found that Mrs Song's new evidence was neither fresh nor credible as it was the fifth version of events from her. The Court further held that no matter of general or public importance was involved and no miscarriage of justice had occurred or was likely. The careful assessment of witness credibility by Judge Hinton, affirmed by Moore J, was upheld. The Court concluded that there was no basis for revisiting the credibility assessments made in the earlier judgments.

The Court declined both the application to adduce further evidence and the application for leave to appeal. The Court noted that Mr Kim's application was made within the required time frame, rendering any request for an extension of time unnecessary.

Orders