A charge against Ryan Daniel Harvey (29), a freelance film technician, of Wellington of assaulting Simon Islip with intent to injure him in Queenstown on October 14 was dismissed by Judge Phillips following a defended hearing yesterday.
The court heard Harvey and two associates were at the Night’n Day on Camp St about 1am when his associates began throwing a bag of chips around the store.
Mr Islip - who Judge Phillips said described as a “skinhead” was in a “highly intoxicated state” - had previously been at the store and asked to leave.
He returned to purchase a pie and took offence to the group’s actions.
CCTV footage shown in court showed the group having a discussion, which lasted several minutes, before Mr Islip removed his jacket, threw it on the ground behind the group of men and head-butted Harvey.
During his evidence Harvey said the conversation Mr Islip told him: ”You don’t know what pain is” and then became “non-sensical, going around in circles”.
Mr Islip appeared to have previously been in a fight, with blood on his face and clothing.
Harvey said he was standing with his hands in his pockets and “stepping back, trying to ignore the situation” when Mr Islip head-butted him without provocation or warning.
Harvey reacted by punching Mr Islip once to the head using his right fist.
Mr Islip fell, hitting his head against the till on the way to the ground.
At that point Harvey saw Mr Islip’s head move, was worried he would get up and attack him again and footage showed him deliver a kick to Mr Islip’s head, before he and his associates left the store.
Mr Islip was knocked unconscious and blood began pooling under his head.
Judge Phillips said Mr Islip’s evidence was that he was “highly intoxicated”, had a propensity towards violence and that he was the “aggressor and intimidator”.
“With hindsight, the kick may have been too much but … at the time that was what [Harvey] needed to do.
“It’s clear on that evidence that self-defence was used … he considered he was under attack by a man who was a skinhead, who was aggressive … who had recently been in a fight, who was abusive and in a high state of intoxication …
“I consider that at the time he delivered the kick … he thought the man might get up again and was moving in that way and [kicked] on that basis.
“He didn’t get up, otherwise [Harvey] might have been severely hurt.”