Lee v The King - [2023] NZCA 305

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA188/2023
[2023] NZCA 305

BETWEEN	HAKYUNG LEE Appellant
AND	THE KING Respondent

Hearing:	8 May 2023
Court:	Miller, Woolford and Cull JJ
Counsel:	C B Wilkinson-Smith for Appellant G R Kayes and L A Taula for Respondent T C Goatley and S C Brougham for NZME Publishing Ltd, Stuff Ltd and Discovery NZ Ltd
Judgment:	19 July 2023 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cull J)

Ms Lee is facing two charges of murder to which she has pleaded not guilty. [1] Her application for interim name suppression pending the end of trial was declined.[2] Ms Lee now appeals that decision. A trial date is set for 29 April 2024.
[1]Crimes Act 1961, ss 167 and 172. The maximum penalty is life imprisonment.
[2]L v R [2023] NZHC 600 [Judgment under appeal] at [31].
The issue on appeal is whether the Judge erred in finding that the publication of Ms Lee’s name did not demonstrate a real and appreciable risk of her self-harm or suicide, such that continued name suppression was justifiable.

Background

Between June and July 2018, Ms Lee is alleged to have murdered her two children by giving them an overdose of her prescription medicine. She allegedly hid the bodies in suitcases which were stored along with her other property in a storage garage. Ms Lee changed her name and flew to South Korea in July 2018, remaining there until 2022. Ms Lee made a number of suicide attempts and in between March and July 2022 was admitted to a mental health facility in South Korea for self-harm reasons.
On 11 August 2022, the children’s remains were located in suitcases that had been stored in the New Zealand storage facility. An arrest warrant was issued on 22 August 2022 and Ms Lee was extradited to New Zealand in November 2022.
In advance of Ms Lee’s first appearance, the New Zealand Police applied for and was granted suppression of Ms Lee’s name and identity. At her first appearance in the District Court on 30 November 2022, suppression orders were made in respect of the identities of Ms Lee and her family members until her next appearance. A further application for name suppression, opposed by NZME Publishing Ltd and Stuff Ltd, was made until 16 February 2023.[3] In the decision under appeal, Hinton J considered the application for continued name suppression and declined it on 23 March 2023.[4]

The High Court decision

[3]R v Lee HC Auckland CRI-2022-092-6662, 14 December 2022 at [14].

[4]Judgment under appeal, above n 2.

The Judge first addressed whether the publication of Ms Lee’s name in relation to these proceedings is likely to increase her risk of self-harm or suicide, so as to be likely to cause extreme hardship to her under s 200(2)(a) or endanger the safety of her person under s 200(2)(b) of the Criminal…

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 Lee v The King

Details

AGLC: Lee v The King [2023] NZCA 305
Case: [2023] NZCA 305
Decision Date: 19 July 2023 at 11.30 am

CaseChat Overview and Summary

The appeal was filed by Hakyung Lee, who was facing two charges of murder and had pleaded not guilty. She had previously applied for interim name suppression pending the end of her trial, but her application was declined. The issue on appeal was whether the Judge erred in finding that the publication of Lee's name did not demonstrate a real and appreciable risk of her self-harm or suicide, such that continued name suppression was justifiable. The Court of Appeal of New Zealand heard the appeal on 8 May 2023 and delivered its judgment on 19 July 2023. The appeal was dismissed.

The Court of Appeal found that the Judge did not err in concluding that the threshold required to establish that publication would cause Lee extreme hardship or endanger her safety was not met on the evidence. The Court found that the Judge gave appropriate weight to the opinion of Dr Duggal, a forensic psychiatrist, who assessed that Lee's vulnerability factors predominated her resilience factors at that time. However, Dr Duggal's conclusion was tentative and did not establish a real and appreciable risk of suicide if name suppression was lifted. The Court was not satisfied that there was sufficient evidence before it, demonstrating that Lee's condition would be materially impacted by publication, sufficient to meet the threshold that publication is likely to cause extreme hardship or endanger the safety of Lee. The Court also found that the Judge did not undertake a "balancing exercise" in the first stage assessment when considering the counterbalancing of open justice. The appeal was dismissed, and the decision of the High Court was upheld.

Orders