KIM v R [2016] NZCA 210

KIM v R [2016] NZCA 210 [18 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA660/2015[2016] NZCA 210BETWEEN WILSON (SANG WON) KIMApplicantAND THE QUEENRespondentCourt: French, Asher and Williams JJCounsel: Applicant in personM L Wong for RespondentJudgment:(On the papers)18 May 2016 at 2.30 pmJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] 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 Judgesentenced 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.[2] 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] 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.[4] 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[5] 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. Sheis 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.[6] 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[7] Mr Kim represented himself before Judge Hinton, and, as the Judge records, he was given considerable latitude with respect to court room behaviour and3 Kim v New Zealand Police [2015] NZHC 2543.4 Leave is required pursuant to ss 237 and 253 of the Criminal Procedure Act 2011.5 New Zealand Police v Kim DC North Shore CRI-2014-004-559, 24 November 2014 at [68].evidence admissibility, in order to ensure he was able to present his case as he wished.6[8] In a comprehensive and careful judgment, Judge Hinton essentially preferred the evidence of the victim and two neighbours who were eyewitnesses —Mr Tangaroa and Ms Webb — over that of Mr Kim, Mrs Song and another neighbour, Mr Turner. The Judge described Mrs Kim as a "fair and forthright"witness who, by admitting she hit Mr Kim with her cap, demonstrated she was prepared to give evidence against her own interest.7[9] The Judge described Mr Tangaroa as a "very good witness".8 There was, the Judge considered, no room for Mr Tangaroa to be mistaken in his observation that Mr Kim delivered a "fairly forceful push" on the victim. The Judge also acceptedthe evidence of Ms Webb's observations, which were similar to those ofMr Tangaroa.[10] By contrast, the Judge said, defence witness Mr Turner acknowledged that he could not have seen all that happened at the scene and could not see Mr Kim at all.9Meanwhile, Mrs Song, the Judge said, "gave the impression of being confused at the time of giving her evidence".10 The Judge considered she may have been simply reluctant because she was caught in the middle between two friends. The Judgefirmly rejected Mr Kim's suggestions that Mrs Kim's injuries were self-inflicted in order to get him into trouble.11 The Judge also rejected the suggestion that there wasa general conspiracy on Mrs Kim's part and on the part of others, including Crown witnesses, to discredit him.12In the High Court[11] Before Moore J, Mr Kim submitted an affidavit from Mrs Song. Mrs Song said that Mr Kim could not have pushed Mrs Kim with both hands, as found by6 New Zealand Police v Kim, above n 5, at [3].7 At [60].8 At [61].9 At [63].10 At [64].11 At [65].12 At [59] and [65].Judge Hinton, because he was in fact holding his daughter at the time. Mrs Song deposed that she saw Mrs Kim fall forward when she (in this scenario, the aggressor) rushed at Mr Kim to hit him.[12] Justice Moore dismissed this evidence essentially because it lacked credibility, although it also lacked the required freshness. It was, the Judge said, the fourth account that Mrs Song had given in relation to the event at issue.13 She gave a statement to the police, swore an earlier affidavit, and then gave evidence at trial. The accounts had evolved over time.[13] Justice Moore referred to the nature of the injuries suffered by Mrs Kim. These meant an accidental fall forwards or self-inflicted injury were not reasonable possibilities.14[14] One further submission was a focus in the appeal before Moore J. Mr Kim alleged Mrs Song had been threatened and manipulated by a friend of Mrs Kimnamed "Jane". Jane, it was said, spoke to Mrs Song at her address on severaloccasions before the hearing. Jane warned Mrs Song that Mrs Kim had two witnesses to support her case and that Mr Kim would be defeated at trial. The Judge concluded that it was difficult to see how this behaviour, even if true, could amount to such threatening or manipulative conduct as to generate a miscarriage of justice.15Further, he observed it was unclear who Jane was.[15] Mr Kim also referred to a Korean constable who prepared Mrs Song's statement and had her sign it. Mr Kim suggested the constable had "threatened her to tell the truth". Justice Moore observed that the constable in question had been cross-examined at length at trial by Mr Kim on that question without success.16 In any event, the Judge suggested, advising a Crown witness to tell the truth could hardly be a sound basis for a claim of miscarriage of justice.[16] The appeal was dismissed accordingly.13 Kim v New Zealand Police, above n 3, at [64].14 At [65].15 At [74].16 At [75].Further evidence[17] The new evidence filed by Mrs Song is now the fifth of her versions of events. A translation was filed. It was certified by Gilbrid Ltd, who provide Korean language interpreting and translation services. Mrs Song repeated her earlierevidence with respect to the visit from "Jane". She provided more detail and deposed that Jane said to her "[i]f Sang Won Kim is defeated at the court after youtestify that he did not push her, you will be charged by the law". Mrs Song deposedthat this frightened her and so she lied at court to protect herself. She said she now wished to put matters right. Her health was getting better now, and she said she feltsufficiently resilient to tell the truth. She said "Yeon Ok Kim and two Māori witnesses told lies".Submissions[18] In his written submission in support of his application for leave Mr Kim responded paragraph by paragraph to the judgment of Moore J. He repeated, in some detail, the submissions he made before Moore J in the process of pointing out where the Judge had erred.[19] For the most part, Mr Kim simply reiterated in more strident terms the key points he made to Moore J: inconsistencies between evidence given by prosecution witnesses; how Mr Tangaroa and Ms Webb had been duped or bribed into giving evidence in support of Mrs Kim; how Mrs Song had been intimidated or manipulated by "Jane" andConstable Park into lying for fear that, if she sided with Mr Kim, and he did not succeed in his defence, she would be sent to jail; how the defence witnesses were the only truly independent and reliable witnesses; Mrs Kim was a very bad person; Judge Hinton did not give Mr Kim a sufficient opportunity to cross-examine Mr Tangaroa and Ms Webb in relation to detailed aspects of the defence evidence.Analysis[20] Leave may be given for a second appeal if this Court is satisfied that a matter of general or public importance is involved or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The applicable principles are well established.17[21] In relation to Mrs Song's further affidavit, principles for its admission onappeal are also well settled.18 The relevant considerations are the freshness and credibility of the evidence and whether, if admitted, it might have an effect on the safety of the conviction. The overriding consideration is the interests of justice.[22] Mrs Song's evidence fails at the first hurdle. It is not fresh. It is evidence that could have been given at trial. It also inherently lacks reliability. This is now the fifth version of events from this witness. The evidence has evolved into a more detailed form, primarily it seems, as a response to the judgment of Moore J. Nothing of substance is said in the affidavit that differs from the evidence filed in the appeal in the High Court.[23] The affidavit of Mrs Song is therefore inadmissible.[24] On the broader question of leave, Judge Hinton saw and heard all witnesses. He reached a view, based on his own very careful assessment of their evidence, as to the witnesses he believed and those he did not. Nothing was put before the High Court or this Court, whether by way of evidence or submission, that could provide a basis for revisiting those credibility and reliability conclusions. These conclusions17 See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [34]–[37].18 See Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at [22]; Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; and Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].were the essence of the case. It follows that no matter of general or public importance is raised by this appeal. Nor is there any basis upon which it could be concluded that a miscarriage of justice occurred or is in prospect.[25] The application for leave to appeal is declined accordingly.[26] The application to adduce further evidence is declined.[27] Mr Kim has applied for an extension of time in which to appeal, but such extension is unnecessary because his application was made in time.Solicitors:Crown Law Office, Wellington for Respondent