Police v Kim [2017] NZDC 10312 (16 May 2017)

Last Updated: 31 January 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-010157 [2017] NZDC 10312

NEW ZEALAND POLICE

Prosecutor

v

HAN OH KIM

_Defendant

Hearing:	16 May 2017
Appearances:	Sergeant P Mann for the Prosecutor H Kim for the Defendant
Judgment:	16 May 2017

_{ORAL JUDGMENT OF JUDGE C M RYAN﷢}

_{In trod u ction .}

[1] On the morning of 12 May 2015, Mr Kim assaulted Mr Wiremu. Mr Wiremu has subsequently died. The police accept that what Mr Kim did to Mr Wiremu on the day in question cannot be forensically or medically linked to Mr Wiremu’s death.

[2] Nonetheless Mr Wiremu’s whānau has lost a husband, a father and a koro. I acknowledge the whānau’s presence in the back of the Court today and the fact that they have sat through a day and a half of this Judge alone trial.

[3] The stakes are also high for Mr Kim, a Korean who has run restaurants and established a photography career in this country. A conviction will have a significant

_{impact on his life. However, I must put those issues aside as I must assess the facts}

NEW ZEALAND POLICE v HAN OH KIM [2017] NZDC 10312 [16 May 2017]

that have been presented during this trial, follow the law by which I am bound and come to a conclusion in accordance with the oath I taken. Such a decision is never easy but it is a decision I am required to make. All sides in this Courtroom need to understand that I cannot be swayed by sympathy or prejudice.

_Charge.

[4] The defendant, Mr Han Oh Kim, is charged that on or about 12 May 2015 he committed an offence against s 193 Crimes Act 1961 in that with intention to injure Tametame Wiremu he assaulted Mr Wiremu. To establish this charge the police must prove two essential elements;

(a) First, that Mr Kim intentionally applied force to Mr Wiremu; and

(b) secondly, that he did so with intent to injure him.

[5] “To injure” is to cause harm to somebody that is more than trifling or insignificant and more than transitory. The injury can be internal or external.

_{On u s and stand ard of proof .}

[6] The onus of proving this charge rests on the police. There is no onus on a defendant to prove that he or she is innocent.

[7] There is no requirement or expectation that a defendant should give evidence. In this case the defendant, Mr Kim, has chosen to give evidence but that does not change the fundamental proposition that the onus of proving the charge rests on the police.

[8] The police must prove both of the necessary elements of the charge beyond reasonable doubt. I will be satisfied beyond reasonable doubt if I am sure that Mr Kim is guilty. If I am sure of guilt then it is my duty to find Mr Kim guilty. If I am left with a reasonable doubt, which is a doubt I consider reasonable in the circumstances of the case, then it is equally my duty to find the charge has not been proven beyond reasonable doubt in which case it is my duty to find Mr Kim not guilty.

_{Issu es in disp u te.}

[9] In this case it is accepted that there was a physical confrontation between the defendant, Mr Kim, and the deceased Mr Wiremu. The issues to be determined in this case are as follows;

(a) Firstly, what was the nature of that physical confrontation?

(b) Secondly, have the police disproven beyond reasonable doubt that Mr

Kim was acting in self-defence?

[10] I remind myself that although self-defence is often referred to as a “defence”, it is not for Mr Kim to prove that he was acting in self defence. It is for the police to prove beyond reasonable doubt that Mr Kim was not acting in self-defence.

[11] If the police prove to me beyond reasonable doubt that the physical confrontation involved Mr Kim’s assaulting Mr Wiremu with intent to injure him, then I must consider the issue of self-defence. In doing so, I have to ask myself three questions;

(a) Have the police proven beyond reasonable doubt that when assaulting Mr Wiremu with intent to injure him, Mr Kim did not believe that Mr Wiremu posed a threat to him? In doing so, I must assess the circumstances as Mr Kim understood them to be. This is often called the “subjective question” because I am required to step into Mr Kim’s shoes to see what he was observing and reacting to at the time. If the answer is yes, I must find Mr Kim guilty. If no, I must go on to the next question.

(b) Have the police have proven beyond reasonable doubt that Mr Kim was not defending himself against the threat he believed Mr Wiremu posed to him? That is the “objective question.” I must look at what happened from the standpoint of the reasonable bystander to ascertain if what Mr Kim did was to defend himself, reminding myself that the police have

to disprove that beyond reasonable doubt. If the answer is yes, I must find Mr Kim guilty. If no, then I must go to the third question.

(c) Have the police proven beyond reasonable doubt that the force Mr Kim used was not reasonable, that it was an unreasonable and disproportionate response to any threat he believed Mr Wiremu posed to him? Again this is an objective question, determined by what the reasonable bystander would consider to be unreasonable and disproportionate force in the circumstances as Mr Kim understood them to be? If yes, then I must find Mr Kim guilty. If no, not guilty.

_{E vid en ce call ed .}

[12] The two key witnesses in this Judge alone trial were police witness, [Witness

2], and Mr Kim himself. I bear in mind that it is not a straight contest between [Witness 2] and Mr Kim because it is the police who must prove the case, not Mr Kim who must disprove it. I turn to a summary of the important pieces of evidence as I heard them.

_{[Witn ess 1] .}

[13] I start with [Witness 1] because although he was not the key witness his evidence I found helpful, particularly as to timing. [Witness 1] was Mr Wiremu’s lawyer who saw him after the incident with Mr Kim. [Witness 1] described Mr Wiremu as elderly, somewhat disorganised and generally with a shuffling walk. He had made the appointment with [Witness 1] in the afternoon and been told not between 10 and

11 but turned up at 9.40 am and stayed until about 10.10 am.

[14] [Witness 1] was able to fix those times by reference to his cellphone. He checked his messages at 9.40 am that day and saw Mr Wiremu shortly afterwards. He was rung by his optometrist at about 10.10 am because he should have been at the optometrist at 10 am and that call was just after Mr Wiremu left.

[15] Mr Wiremu was bleeding from his lower lip, which [Witness 1] did not notice initially. It was only when he saw smears of blood on documents Mr Wiremu gave him

that he looked more closely and saw the bleeding lip. Mr Wiremu downplayed his injuries, saying he had bitten his lip while eating a pie. He did not mention any assault on him although by this time as subsequent evidence, including that of Mr Kim showed, he clearly had been assaulted. I cannot speculate as to why he did not mention that to his lawyer.

[16] [Witness 1] noticed no injuries apart from the bleeding lip and Mr Wiremu was able to give him instructions just as he had done in the past.

_{[Witn ess 2]}

[17] [Witness 2] was a 19 year old special effects student at the Cut Above salon on Lorne Street. She often travelled to TV studios from the salon to apply makeup. She usually arrived at work at about 8.30 am. However that morning there had been one or more trains cancelled and she was late. She said that after 9 o’clock and possibly as late as 9.30 am, although obviously not clock watching, she hurried to work from Britomart through High Street and up Lorne Street.

[18] While it had been raining it was not wet at the time she approached work. She remembered this because her Chuck Taylor’s were not slipping on the wet street surface. She was wearing earphones. Lorne Street slopes slightly upward toward Café Madison, which was a little further along than the Cut Above. Despite the slight incline the photographs taken by police show a clear view to Café Madison.

[19] [Witness 2] said there were few people around as nearby students and business employees were most likely at work by now. While Lorne Street has regular foot traffic there was not a great deal at this time.

[20] As one song on her headphones stopped and before the next one began she heard an argument about 20 metres ahead of her. She heard shouting but could not make out what was being shouted. She saw an older man being pushed by hands out the door of Café Madison. She described the pushes as quite hard, about seven out of

10 with 10 being severe, all with open hands.

[21] While she did not know the older man it is not disputed and it was clear to me that this could only have been Mr Wiremu.

[22] While she could not see the hands pushing the older man it transpired that they were the hands of the owner of Café Madison, the defendant, Mr Kim. This corroborates Mr Kim’s evidence that the older man approached Mr Kim. It is undisputed that Mr Wiremu was originally seated at a table outside the café close to the Pearl Mart. For Mr Kim to be able to push Mr Wiremu out the doorway of Café Madison, Mr Wiremu had to have been at or in the doorway, which means he must have got up from the chair and gone to the doorway.

[23] [Witness 2] described the owner of the café, with whom she was familiar as she had ordered items from the café before, as slapping Mr Wiremu with an open hand to the side of the head. This corroborates to a certain extent Mr Kim’s evidence that he slapped Mr Wiremu.

[24] She described the severity of the slaps as about five to six on a scale of one to

10. She described Mr Kim’s arm being extended and making contact around Mr Wiremu’s ear. She said she saw Mr Kim hitting the old man around the head and the chest. She described the older man as stumbling backwards and grabbing a chair behind him. From the manner in which she described both in gestures and in oral evidence, she perceived that he was trying to gain his balance or hold on to the chair.

[25] However she conceded under cross-examination that notwithstanding her description it was quite possible that Mr Wiremu could have been trying to pick up the chair. She said Mr Wiremu’s hand then slipped from the chair and he fell onto the ground.

[26] She drew a diagram for police much closer to the event than today which depicted Mr Wiremu’s head and torso on the ground beyond the table and chairs hence visible on the street. As she reached the doorway of Cut Above a few metres away she had a clear and unimpeded view of his head and upper torso.

[27] She described Mr Kim as then crouching over and leaning over the prone Mr

Wiremu, then striking Mr Wiremu with closed fists in a quite repetitive manner. Mr

Kim used his right hand, she thought. She said that the punches were about four to six in number and about six to seven out of 10 on a scale of severity.

[28] She described Mr Kim as kicking Mr Wiremu while he was on the ground, the severity of the kicks being eight to nine out of 10. She described the punches and kicks as striking Mr Wiremu on the head and upper torso. On more than one occasion in evidence she described Mr Wiremu as curling into a foetal position and raising his hands above his head to protect himself.

[29] Under cross-examination she agreed that Mr Wiremu “made a mess” as he fell, in other words, that as he fell, tables and chairs were moved and scattered. She remained clear and consistent that they did not impede her view. She did not know what to do. She went upstairs and told her work colleagues what she saw.

[30] One male colleague came down with her about five to six minutes later to tell the owner to stop, but when they came outside they could not see the older man or the owner. Six weeks later she was prodded by her colleagues to go to the police after at least one of her colleagues saw a Facebook post about the incident. Clearly she had spoken to her colleagues for them to be able to point out that Facebook post to her. Clearly what she saw was sufficiently concerning to her to raise it with colleagues.

[31] She was cross-examined as to why she did not intervene. She said that at the age of 19 she had never seen violence before and what she saw was too much to take in. As a 19 year old female witnessing two males involved in a physical altercation her reaction is understandable if what she said happened.

[32] She was asked why she did not call the police, the suggestion being that she could not have considered the incident serious enough to do so, which belies her graphic description. However, if what she says is credible and reliable, which will be a decision I have to make, then it is understandable to a certain extent that in her youth and uncertainty she ran to her colleagues, but did not ring the police.

[33] No one on that street did. I have been told that at least one other eyewitness will not give evidence in this Court because she is a businesswoman, she knows the defendant, and comes from the same background and culture.

[34] When I consider the number of cases over which I have presided and have heard evidence that people have not responded to the screaming and yelling of family violence next door or to the bullying by an older student of younger students in the street, or to thefts, burglaries and violent offences occurring in their view, I cannot say that because this woman did not ring the police, then what she says did not happen. What I can say in relation to those who witnessed what happened on this day but did nothing, the old phrase, “Evil triumphs when good people do nothing,” may be very apt. Intervention by somebody, anybody may have assisted both Mr Wiremu and Mr Kim.

_{Mr Ki m.}

[35] Mr Kim gave evidence that he had been running Café Madison for about three years. He worked from 6.00 am to 3.00 am every day with little respite. He did not hire staff because he had debts to pay and hiring staff would eat into any profits to be applied to the debts.

[36] Under cross-examination he added that he had another job as a photographer and while working in photography he did sometimes hire temporary staff for the café. As somebody 190 centimetres in height he weighed a mere 70 kilograms, certainly underweight for someone his height. He said he has gained eight kilograms since stopping working at Café Madison.

[37] While working after 9.00 am on the morning of 12 May 2015 he heard from inside the café the distinctive sound of a can being opened outside. He came out and saw Mr Wiremu seated on one of the café’s outside chairs close to Pearl Mart. He said he politely explained to Mr Wiremu that the chairs were for the café customers and not for people to consume their own drinks purchased elsewhere.

[38] He said Mr Wiremu became angry, got out of the chair and approached Mr Kim as Mr Kim stood in the doorway of the café. Mr Wiremu tried to headbutt him but did not directly connect. Mr Kim deposed that many years earlier he had sustained a significant injury to his lower jaw for which he had undergone surgery and had been told by his doctors that he had to be very careful of his jaw. So to avoid being struck on the jaw he slapped Mr Wiremu and swore at him.

[39] Mr Wiremu then grabbed the chair next to the one on which he had originally been seated so must therefore have retreated from the doorway to the chairs. Because of Mr Wiremu’s aggression, Mr Kim was concerned that he might lift that chair and strike Mr Kim with it. Mr Kim therefore approached Mr Wiremu and slapped him once with an open hand on the face. He swore at him and told him to “Fuck off and go away.” Mr Wiremu had sworn at Mr Kim when he first approached him in the doorway but he could not recall what the swear words were.

[40] After slapping Mr Wiremu the second time Mr Kim saw blood on Mr Wiremu’s lower lip. At this point the encounter came to an end. Mr Wiremu walked over to a tall power box next to the café and sat or perched on it. Mr Kim again told Mr Wiremu to go away. After a few minutes he saw Mr Wiremu walking in the distance towards Gloria Jeans and towards the Wellesley Street end of Lorne Street.

[41] I note that [Witness 1] had chambers two doors away from Café Madison towards the direction of Wellesley Street and it is undisputed that he was at [Witness

1]’s place of business at around 9.40 am.

[42] Mr Kim said he never punched or kicked Mr Wiremu and that [Witness 2], was lying. Because [Witness 2]’s and Mr Kim’s evidence is at odds on significant portions of the event I must assess the credibility and reliability of each of them, bearing in mind of course that it is not for Mr Kim to prove his innocence but the police to prove his guilt.

_{Discu ssi on .}

[43] I start with Mr Kim’s evidence. First, he was working between 6.00 am and

3.00 am every day. That means he had a maximum of three hours’ sleep, depending on where and when he went to sleep. I can take judicial notice of the fact that this must have involved significant sleep deprivation.

[44] Secondly, Mr Kim worked alone unless he hired temporary assistance while working as a photographer. He was under pressure to pay debts and to return some form of profit to do so. This meant he was generally alone, in a café in the Auckland

central business district which as he said was often busy and which therefore would have put him under significant pressure.

[45] Thirdly, he was underweight or skinny weighing only 70 kilograms when he was 190 centimetres tall. That when he stopped he put on eight kilograms in weight is significant. He was clearly an unhealthy weight when working at Café Madison.

[46] Fourthly, putting all these pieces of evidence together and bearing in mind that Mr Kim maintained this work-life imbalance for close to three years the psychological and physical strain on him must have been immense.

[47] Fifthly, he heard the sound of a can being opened outside the café when he was inside behind the counter. His café was next to Pearl Mart and as a matter of logic there would have been a number of people coming out of Pearl Mart and cracking open cans or opening fizzy drinks and making that distinctive sound each time. If on a busy street he could hear that and he came out to check each time then he would have been doing that all day.

[48] Mr Kim admitted that he did not like people using his tables and chairs to consume their own drinks. For him to be able to hear a sound of a can from a chair right next to Pearl Mart means that he must have been in a state of constant hypervigilance. If Mr Kim was attuned to the sounds of cans being opened then he was never at rest and that would have increased the pressure on him in that café.

[49] Sixth, he called the officer in charge a liar for saying that Mr Wiremu was dead because a Korean paper said he was missing. He did not say to the officer that he must have been mistaken or ask the officer to explain. His reaction I find was intense and confrontational. This may not be surprising given the pressure he was under.

[50] Seventh, he was upset with the police for missing a 2.00 am appointment to take a statement. That was the only time convenient to him because of his work commitments. Because of an urgent incident requiring police involvement, the police could not keep the appointment. As a result, Mr Kim told them not to come back without a warrant and he in fact threatened to call the police, on the police. While he

may have been within his rights to refuse to make a statement, again his reaction to the police was extreme, intense and confrontational.

[51] Eighth, by itself, aggression to the police coming around all the time is not significant but it is at odds with the person he tried to present to me in evidence as one who tried to avoid confrontation.

[52] Ninth it also becomes important when I examine Mr Kim’s own evidence as to how he reacted to Mr Wiremu. Mr Kim’s evidence was that he stood at the doorway which he marked 1 on the photograph. The chair which Mr Wiremu grabbed is outside the doorway, on the street at the outer extremity of the tables and chairs. He must therefore have moved toward Mr Wiremu to get close enough to slap him on the second occasion. This is inconsistent with trying to avoid confrontation.

[53] Tenth, a man who told me he was worried about his jaw deliberately walked within arm’s reach of an aggressive man and got close enough to slap him. Coming within Mr Wiremu’s arm reach risked a pre-emptive or retaliatory strike by

Mr Wiremu. Mr Kim did not back off or put his hands in front of his jaw or say, “Hey mate calm down or I will call the police.”

[54] Now all of this may have been self-defence and I will come to that but the point is the internal inconsistency in his own evidence. Mr Kim’s evidence of the second slap is inconsistent with the actions of a man with a vulnerable jaw worried about protecting it.

[55] Eleventh Mr Kim said he saw an older man who was stocky and aggressive grabbing a chair. He was able to disarm or prevent Mr Wiremu from doing anything else by one open-handed slap to the face. If Mr Wiremu was as aggressive as Mr Kim described, that is implausible. A stocky, angry man who wants to lift a chair is not going to be stopped by one slap to the face but apparently that slap did stop him. I cannot accept the credibility of that evidence.

[56] Twelfth is the evidence of blood on Mr Wiremu’s face. Either it was there already and Mr Kim did not see it when he first slapped Mr Wiremu or he caused it with the second slap. The skinny man with the fragile jaw sustained no injuries

whatsoever despite this aggressive, stocky, older man, hitting or tying to hit him. The only person hit was not the slight, skinny, man with the vulnerable jaw but Mr Wiremu who both Mr Kim and [Witness 2] described as stocky. That is also implausible if Mr Wiremu was as aggressive as Mr Kim tried to describe.

[57] Next, Mr Kim was very anxious throughout his evidence to try to prove to me that he did not do what was claimed. For example he said he told the police to check CCTV yet he knew there was no CCTV inside or outside his café. I cannot say for sure whether he knew there was none on Lorne Street but that was an empty statement to police.

[58] He also showed his hands to the police and invited them to photograph his hands. Yet it is well known that punching does not always leave marks on the hands. In any event, he did so well after the event. He knew the following day the police were interested in his movements and he certainly did not photograph his own hands or get any medical evidence at the time.

[59] Next he said that if he had punched and kicked the older man as had been described others would have seen it. One person says she did.

[60] Fifteenth, there is the issue of the headbutt. Mr Wiremu was 179 centimetres tall. Mr Kim on his own evidence is 190 centimetres. The 11 centimetre height difference is not insignificant. The difference in height was obvious to [Witness 2] as she approached the scene. According to Mr Kim, Mr Wiremu tried to headbutt somebody whose head he could not even reach.

[61] While I myself do not engage in physical violence of course, I have heard enough about headbutts in this Court, too much in fact, to know they are sudden and unexpected strikes to the head of one person by another. The recipient usually does not see them coming. At such close proximity, there is little time to react.

[62] If Mr Wiremu had launched a headbutt towards Mr Kim, the latter would not have had time to react let alone manage to slap him before the headbutt took place. Furthermore at best Mr Wiremu’s head would have struck Mr Kim’s neck or his chest. The allegation of the headbutt I find implausible.

[63] At key points therefore, I find Mr Kim’s evidence inconsistent and implausible. But I cannot therefore leap to the conclusion that he must be guilty. To do so would be to forget who has the burden of proof.

[64] So I now turn to assess the credibility and reliability of [Witness 2]’s evidence. Firstly, there are important occasions in which her evidence corroborates Mr Kim’s or Mr Kim’s corroborates hers; the slaps to the head, the grabbing of the chair and the hands pushing Mr Wiremu backward out of the café which suggests that Mr Wiremu was at the doorway and not on the chair. Mr Kim admitted he yelled at Mr Wiremu and [Witness 2] saw and heard that as well.

[65] Secondly, she was 19 and a female and it would be unreasonable to expect her to intervene in a physical dispute between two males. She has come from a safe, non- violent environment she would not have known what to do. Calling the police was obviously foreign to her. Her explanation for non-intervention was plausible.

[66] Thirdly, she made concessions where concessions were called for. She did not see Mr Wiremu headbutt Mr Kim but accepted it was possible when she looked down to turn the volume of her headphones down. She accepted that it was possible that

Mr Wiremu was not trying to grab the chair to keep his balance but grabbing the chair for some other reason. She conceded that she had not seen anything before she saw the hands pushing. When she was uncertain or unsure or other alternatives were possible, she accepted that.

[67] Fourth, she was clear, consistent and cogent about the punches and kicks to the upper body and head of Mr Wiremu when he was prone. When challenged about that by careful and skilful cross-examination she did not resale from her earlier evidence. It did happen, she insisted, because she saw it.

[68] Fifthly, that she was herself asked to leave Café Madison for bringing a drink there with not a sufficient motive to be untruthful. This is so particularly when she accepted the person who asked her to do that was polite.

[69] Sixth, I found her overall an independent witness who was not partisan, had no axe to grind and no interest in the result.

[70] Finally, overall I found her evidence clear, consistent, co-operative with both the police and Ms Kim, making concessions when required, and found her evidence credible and reliable. Given my analysis of Mr Kim’s evidence and her evidence I prefer her evidence to Mr Kim’s.

_{Decisi on .}

[71] I therefore find that Mr Kim assaulted Mr Wiremu as [Witness 2] described it. The assault involved pushing Mr Wiremu from the doorway with sufficient force to cause him to stumble backwards, that it involved slapping and hitting Mr Wiremu about the upper torso and head, that Mr Wiremu fell to the ground and that Mr Kim kicked and punched Mr Wiremu while he was prone.

[72] To kick and punch someone while that person on the ground is I find clearly with the intent to cause that person actual bodily harm, in other words to intend to injure that person.

[73] Having found that Mr Kim did assault Mr Wiremu with the intention of injuring him, I then turn to the issue of self-defence and start with the circumstances as Mr Kim believed them to be. I find that Mr Kim was hypervigilant, sleep deprived, underweight and under significant pressure. This meant that he was easily provoked to confrontation.

[74] I also find that Mr Wiremu approached Mr Kim. He clearly got up from his seat and moved to the doorway. Given Mr Kim’s hypervigilance, he clearly saw that as an aggressive, threatening action. Whether in the cool light of day I or others in Court today might not have interpreted it that way is irrelevant. The subjective question requires me to put myself in Mr Kim’s shoes. I cannot rule out that Mr Wiremu was upset and angry, that he swore at Mr Kim and advanced towards him.

[75] Accordingly, my answer is “no” to the self-defence question, “Have the police proven beyond reasonable doubt that when assaulting Mr Wiremu with intent to injure him, Mr Kim did not believe that Mr Wiremu posed a threat to him?” I find that Mr Kim could well have seen Mr Wiremu’s approach to the door as an aggressive, threatening action.

[76] I turn to the second question; “Have the police have proven beyond reasonable doubt that Mr Kim was not defending himself against the threat he believed Mr Wiremu posed to him? I analyse the event in three steps. First, given the circumstances in which Mr Kim found himself, his initial pushing Mr Wiremu away and slapping him was defending himself against the threat he believed Mr Wiremu posed. I note the Sergeant’s cross-examination of Mr Kim that could have walked away or retreated but at that close proximity that would have been difficult.

[77] However, the chain of events did not stop there. The confrontation moved outside to the second phase. I do not accept that Mr Wiremu was trying to grab a chair to hit Mr Kim. I accept [Witness 2]’s evidence that he was stumbling backwards and grabbed the chair to stop himself from falling. However, a person in Mr Kim’s situation who had just been approached by Mr Wiremu could reasonably think that Mr Wiremu was about to grab the chair. I accept Mr Kim perceived that he needed to defend himself at that point. I accept that Mr Kim was frightened, angry, concerned and acting in self-defence at that point.

[78] However, Mr Kim went further than that. Mr Wiremu fell to the ground after being struck by Mr Kim. Whether he struck his head when falling to the ground I cannot say but he was at this point prone, unable to offer any aggression, defenceless and unable to offer any resistance. At this point, he stopped posing any threat. At this point, Mr Kim should have stopped. He did not.

[79] Everything in Mr Kim appeared to have boiled to the surface and in anger he struck Mr Wiremu repeatedly with his fists and feet, which was the third phase. He knew that Mr Wiremu was bleeding from his lip because he saw that when he slapped Mr Wiremu the second time. He knew Mr Wiremu was now on the ground. That was the time to back off and grab the phone and call the police and to seek help. Instead Mr Kim went well and truly beyond self-defence.

[80] I find therefore that at the third phase, Mr Kim was not defending himself when he kicked and punched the prone Mr Wiremu. The police I find have proven that at the third phase, Mr Kim was not defending himself against the threat he believed Mr Wiremu posed.

[81] In case I am wrong then it was very clear that excessive force was used at this point. The crouching over the prone figure of Mr Wiremu, the 4 to 6 closed-fist punches to the head and upper torso with a severity of about 6-7 out of 10 and the kicks to the head and upper torso at about 8-9 out of 10 in severity, graphically and convincingly described by [Witness 2] show an unreasonable and disproportionate force.

[82] I therefore answer “Yes” to the question “Have the police proven beyond reasonable doubt that the force Mr Kim used was not reasonable, that it was an unreasonable and disproportionate response to any threat he believed Mr Wiremu posed to him?”

_{Conclu sion .}

[83] I find therefore that Mr Kim assaulted Mr Wiremu with intent to injure him and self-defence was not open to him from the moment Mr Wiremu fell backwards onto the ground. Accordingly, I find Mr Kim guilty of the charge.

C M Ryan

District Court Judge