R v Lee Ca437/04
[2006] NZCA 60
•7 April 2006
For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND
CA437/04
THE QUEEN
v
YONG BUM LEE
Hearing:5 April 2005
Court:Anderson P, McGrath, Glazebrook, Hammond and William Young JJ
Counsel:N Levy and R M Lithgow for Appellant
A Markham for Crown
Judgment:7 April 2006
JUDGMENT OF THE COURT
A Mr Lee’s application for an extension of time to appeal is granted.
B The appeal is allowed, the conviction is quashed and a re-trial ordered.
REASONS
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
The evidence [7]
Background [7]
Witnesses to Joanna’s exorcism [13]
Involvement of the police [34]
Evidence on cause of death [39]
Other exorcisms performed by Mr Lee [44]
Evidence on practice of exorcism [45]Mr Lee’s statements to the police [47]
Mr Lee’s participation in the trial [51]
Crown’s pre‑trial memorandum [53]
Ruling on consent [58]
Summing up of Paterson J [66]
Jury Question [77]
Affidavit of Mr Lee [80]
Affidavit of Senior Sergeant Rogers [84]
Parties’ submissions on extension of time [87]
Mr Lee’s submissions [87]
Crown’s submissions [91]Discussion of application for extension of time [95]
The Knight test [95]
Discussion of the submissions on Knight [100]
Application of the balancing test [108]Parties’ submissions on objective dangerousness [130]
Mr Lee’s submissions [130]
Crown’s submissions [134]Discussion of objective dangerousness [137]
Parties’ submissions on consent [143]
Mr Lee’s submissions [143]
Crown’s submissions [147]Issues relating to consent [154]
Structure of our Crimes Act provisions [157]
Ascertaining the limits of consent in assault cases [167]
What was the state of the common law on consent in 1893? [170]
Position in the United Kingdom [182]
Developments in the common law [182]
What is the current position on consent? [219]
Reform proposals [221]Position in other jurisdictions [233]
Position in Canada [233]
American Law Institute Model Penal Code [249]
Position in Australia [254]What are the limits of consent in New Zealand? [261]
The position in 1893 [264]
New Zealand cases [266]
What should the current position in New Zealand be? [289]Summary of the current position in New Zealand on consent [311]
Was consent available in this case? [319]
What was the basis of Paterson J’s ruling? [320]
Did Paterson J correctly apply the majority approach in Brown? [322]
How should consent have been dealt with? [333]
Was there an evidential basis for consent in this case? [338]
Conclusion [344]Other issues [345]
Result [349]
Introduction
[1] On 5 December 2001, after a trial by jury in the Auckland High Court, Mr Lee was convicted of the manslaughter of Ms Keum Ok Lee, also known as Joanna Lee, who died while an exorcism was being performed on her by Mr Lee. Ms Lee was not related to Mr Lee and, to save confusion (and meaning no disrespect), we will call her Joanna in this judgment.
[2] The indictment contained two alternative counts. The first alleged that Mr Lee caused the death of Joanna by an unlawful act (assault) ‑ see s 160(2)(a) of the Crimes Act 1961 (the 1961 Act). The second count was that he caused the death of Joanna, having undertaken to administer a religious procedure (exorcism), by omitting without lawful excuse to have and to use reasonable knowledge, skill and care in that procedure ‑ see s 160(2)(b) of the 1961 Act. Mr Lee was convicted on count one and sentenced, on 20 December 2001, to six years imprisonment.
[3] Mr Lee now seeks an extension of time to appeal against his conviction under s 388(2) of the 1961 Act. His Notice of Appeal was filed on 11 November 2004, approximately 2 years 10 months after the 28 day period provided by s 388(1), and just before Mr Lee’s final release date from prison and removal from New Zealand.
[4] His application was first called on 6 December 2004, before a Court comprising Anderson P, McGrath and Glazebrook JJ. After calling for further submissions from counsel on a number of issues, the Court decided, on 1 March 2005, that, because of the importance of the issues involved, the extension application should be re‑argued before a Full Court.
[5] As the substantive merits of the appeal formed a large part of the argument for Mr Lee on his application for an extension of time and the appeal would involve questions of law only, the Court decided that the arguments on the substantive appeal should also be presented so that the appeal could be dealt with at the same time as the application for an extension of time, should the extension be granted.
[6] Mr Lee wishes to put forward two grounds of appeal. The first is the alleged failure of the trial Judge to instruct the jury that, before any assault may form the basis of a manslaughter conviction, it must be objectively dangerous. The second ground is what is alleged to be the wrongful removal from the jury of the issue of consent with regard to count one.
THE EVIDENCE
Background
[7] Mr Lee is a Korean national. He first came to New Zealand in 1994 but does not have New Zealand citizenship or residency. His wife, Mrs Joyce Lee, is a Korean with New Zealand citizenship. Mr and Mrs Lee have a young daughter and Mr Lee also has two children in Korea from a previous relationship. Mr Lee was originally a Buddhist but he converted to Christianity while in New Zealand.
[8] In 1997, Mr Lee completed a two‑year Assembly of God Diploma in Theological and Biblical Studies at the Assembly’s Advanced Ministry Training Centre in Henderson. Near the end of 1998, Mr Lee was given a probationary credential by the Assembly of God, which lasts for a minimum of two years. In May 2000 he founded the “Lord of All’s” Church, initially for his own and another family. Despite the fact that Mr Lee’s church had not been given affiliation (presumably because of Mr Lee’s probationary status), it was listed in a directory published by the Assembly of God. By December 2000, the Church had approximately 15 ‑ 20 members, most of whom were Korean and about seven of whom lived at Mr Lee’s home. The Church hired a church hall for Sunday services, another for an all night Friday service and a daily service was held in Mr Lee’s home.
[9] One of the Crown witnesses was Mr Dowie, who is a Pastor with the Assembly of God in New Zealand and President of the Advanced Ministry Training Centre in Henderson. Part of his responsibilities involves interviewing and monitoring a person requesting a credential from the Assembly of God church. Mr Dowie was assigned to monitor Mr Lee after he had received his probationary credential. Mr Dowie’s evidence was that he saw Mr Lee every three months and sometimes more regularly and that he had seen nothing during his sessions with Mr Lee that had given him any cause for concern. He said:
During your meetings with Mr Lee did you detect anything untoward about his progress as having a probationary credential … Nothing at all.
In terms of his belief in God was that something you could detect in your meetings with him … Yes he was very zealous, we discussed a number of issues that would come out of books he had read which were part of the assigned reading and he didn’t have any concepts of God I would disagree with or I didnt come across anything like that.
So nothing to cause you any concern? … None at all.
So these meetings commenced when … About one month he was notified he had been granted a probationary credential.
[10] Joanna, aged 37 at the time of her death, was a member of the Church living in Mr Lee’s house. She had arrived from Korea in October 2000, some six to eight weeks before her death. In his first video interview on 15 December 2000, Mr Lee said that he had first met Joanna when he had returned to Korea for a conference. She had wanted to come to New Zealand to be healed. However, in his second video interview on 30 December 2000, Mr Lee said that he had first met Joanna when she came to New Zealand. He said that Joanna had a serious incurable skin disease, vitiligo (which he described as Michael Jackson’s disease), which caused her feelings of depression.
[11] One of the trial witnesses, a Korean language student called Joseph (his Korean name was the subject of a permanent suppression order), described Joanna as an “Introvert. Very tidy person, obedient, she always tried to sacrifice herself for others”. He considered that Joanna was the “best” of Mr Lee’s followers in that she never complained or questioned his directions. Another of Mr Lee’s followers, Timothy, described Joanna as a quiet, reserved person and a good cook. A further witness, Mr Khon Aung, gave evidence of meeting Joanna a few times, the last time being at the end of November 2000. He said that she looked healthy and well and happy.
[12] Among the practices of Mr Lee’s Lord of All’s Church was a form of exorcism known as “deliverance”, which was designed to rid the body of demons and evil spirits. In the early hours of Saturday 9 December 2000, Mr Lee began a deliverance on Joanna. We note that there was no suggestion at trial that the exorcism was intended to be for any purpose other than the salvation and spiritual welfare of Joanna or that Mr Lee intended to cause Joanna any harm. The deliverance lasted approximately four to six hours, commencing at a local church and continuing, after a break, at Mr Lee’s home. Mr Lee accepted at trial that Joanna had died in the final stage of the exorcism but he said that she was resurrected a little time afterwards – see at [74] below.
Witnesses to Joanna’s exorcism
[13] At trial, three witnesses gave evidence of the process of the exorcism. It is worth discussing the evidence of those witnesses in some detail to highlight the differences (albeit subtle) between the accounts.
[14] The first witness was Joseph, the Korean language student. He said that the deliverance on Joanna had started between 5.00 am and 5.30 am on Saturday 9 December at a church building in Balmoral that had been hired by Mr Lee. The deliverance continued until they left the church some three hours later, when another group, which had no connection to Mr Lee’s Church, needed the building.
[15] Joseph thought that the deliverance at the Balmoral church had started by Mr Lee asking Joanna to lie down. It was the role of two of the members of Mr Lee’s Church, Lydia and Grace, to point out the demons in Joanna’s body and where they were located. Joseph said that sometimes Joanna would also tell them how many demons were left in her body but when she did so her voice changed. During the exorcism Joseph said that Mr Lee talked with the demons in Joanna’s body in the following terms:
Would Mr Lee be saying anything when he was doing these things to Joanna Lee? … He said something like you get out or he asked where you came from and why you came in this body.
Could you tell who he was talking to? … He was talking with Joanna.
Who was he asking to get out? … Initially he talked to Joanna and then Joanna’s voice changed, she speaks in a very low tone, and then she explained who she was and when she came in the body.
So is he talking to Joanna or someone or something else? … I think he was talking to some other being because after Joanna made the voice, and then she returned to herself and she said “What am I doing?”
[16] The demons having been pointed out by Lydia and Grace, Joseph said that Mr Lee would then press or push the affected area. He also sat on Joanna’s stomach and bounced to expel the demons. Pressure was applied to her stomach, chest and neck several times and, according to Joseph, Mr Lee sat on Joanna more than seven times. We note here that, according to the forensic pathologist, Joanna was 156 cm in height and weighed 44 kilograms. In Mr Lee’s second video interview, he estimated his weight at 48 or 50 kilograms. This does not seem to have been challenged by the Crown.
[17] Joseph had earlier been asked about an exorcism that had been performed on him. He said that the pressure on his neck during his exorcism had been “so tight, it was hard to breathe” and that the pressure to his chest and stomach and the bouncing on his stomach had been very painful. Joseph said that Mr Lee had, at the Balmoral church, used the same methods of exorcism on Joanna as had been used on him. Joseph said that the pushing and pressing was a relatively new method which started shortly before Joanna’s death.
[18] At about 8.30 am they had to leave the Church premises and return to Mr Lee’s house. By the time they left the Church, Joseph said that Joanna looked “very tired, exhausted”. At the house they all went to bed. He woke about 12.00 pm and had a rest and lunch but the others did not wake at the same time. He did not say when Joanna woke. The exorcism on Joanna resumed in the living room between 4.00 pm and 5.00 pm. Joseph could not remember the exact sequence of the exorcism but Mr Lee pushed and pressed Joanna’s stomach, chest and neck and bounced on her stomach and chest. He also pressed on her mouth, with two hands on her cheeks to expel the demons. Mr Lee at one stage asked Lydia and Grace also to sit and lie on Joanna.
[19] Joseph, when asked to describe Mr Lee’s demeanour during the exorcism, said that it was difficult for him to use descriptive words but Mr Lee was “very glad because he could see demons going out.” Joseph said that Joanna did not complain at all by word during the exorcism but it “was so apparent that it was painful or very hard for her because she touched her chest”. He said that, as the evening wore on, Joanna did not look good but it was hard to describe her facial expression. She had fasted for three days before Friday and had had only two light meals on Saturday morning so her face was pale and her lips were dry.
[20] Near the end of the deliverance, around 8.00 or 8.30 pm, Joseph was sitting near Joanna’s feet. He could not see exactly how Mr Lee was pressing Joanna’s neck at that stage but Mr Lee was sitting on her chest and he could see from his posture that he was holding her neck. Joanna began struggling “very hard” and trying to take the hands, which were holding her neck, away. Mr Lee asked Timothy (another church member), Lydia and Grace to hold Joanna’s arms and limbs. Lydia and Timothy held one of Joanna’s arms each and Grace sat on Joanna’s thighs. Joseph said that Grace could not stop Joanna’s legs struggling so she asked him to hold Joanna’s legs. He held her ankles. Grace remained on Joanna’s thighs. It was very hard to hold Joanna’s legs at first and he had to ask another man to help. Mr Lee was still sitting on Joanna’s chest and still had his arms in the same position as before but Joseph could not tell how hard he was pressing. Joseph thought at the time that they were holding Joanna so that she could be free from the demons.
[21] After about 30 seconds he could feel Joanna’s movements become weak and Lydia said that demons had moved to the mouth. He saw at that stage that Joanna had her tongue between her teeth and that she was very pale. Mr Lee then moved his hands to Joanna’s cheeks and pressed hard to prevent her biting her tongue. Joseph thought that Lydia said that Satan was forcing Joanna to bite her tongue to cause her death. Joseph then felt Joanna’s legs stop moving slowly. As Joanna’s movements got weak or stopped they all ceased holding her body down. Lydia and Grace then said that Joanna was not dead but that she was just in heaven for a short period. He could not remember if Mr Lee had said anything before that. No one attempted any resuscitation on Joanna at that stage.
[22] Mr Lee then asked them to burn Joanna’s possessions. Mr Lee had said that the demons had not left Joanna because they were connected to all the belongings Joanna had. They burnt her memo book, photographs and a telephone number that she had brought from Korea but decided to keep her passport and air ticket. They threw away her clothes. Joseph then helped the others move Joanna to her own room. Her eyes were closed at this stage.
[23] The next witness to the events on the evening of Joanna’s death was another Korean church member, Timothy. His recollection of events at the Church building was different from Joseph’s in that he thought that there were other exorcisms performed at the Church building in the early hours of Saturday morning as well as Joanna’s. He remembered Mr Lee putting his hand on Joanna’s forehead and praying. There may have been some contact with her neck and chest but he could not remember clearly.
[24] Back at the house Timothy thought that the exorcism on Joanna began at about 7.00 pm. While at the house he was praying facing the wall and so could only see what was happening with Joanna when he glanced over but he saw Mr Lee press on her neck and sometimes Mr Lee and sometimes others were sitting on her chest. Like Joseph, he gave evidence of a conversation Mr Lee had with Joanna during the deliverance. He said:
Could you hear things being said by Mr Lee? … Yes.
What was he saying during the exorcism? … Sometimes he gave us instructions such as read the Bible and sing and pray.
I was asking you what you remember Mr Lee saying during the exorcism and you told us he would tell you things to do like read the Bible. What other things can you remember his saying? … Pastor Lee had a conversation with Joanna during the deliverance.
What was that about? … It was a different voice from Joanna’s voice.
Who was doing the talking when you heard this different voice? … It was Sister Joanna.
What was she saying? … What Joanna said in a different voice was “I will kill you.”
[25] Timothy thought that Joanna had a fit after the exorcism had started at the house. He said that she screamed and “shook her body”. He also said “something had come out on her skin”. According to Timothy, the exorcism ended with Joanna becoming “very quiet, no fit, no sound”. She became quiet a few minutes before the end of the exorcism. He said that, during the fit, Joanna “was trying to get him [Mr Lee] up and also she was trying to move her arms and legs.” Timothy said that he did not remember well what Mr Lee was doing while Joanna was having her fit but Mr Lee was next to her and Timothy thought that, at the last minute, Mr Lee was sitting on her chest and his hands were resting on Joanna’s neck. Timothy did not know what force Mr Lee was applying to the neck. Timothy also remembered Mr Lee telling them to hold Joanna down and he did so. Timothy said that he was holding Joanna because the demon was going to kill her. He said:
Why were you touching her? … Because Joanna’s arms and limbs were moving, and then the deliverance cannot be carried successfully, especially at the last stage, her movement became very strong, that means the demon was going to kill her so we had to hold her arms to make it successful.
[26] At the end of the exorcism Joanna went quiet but Timothy thought that she had just lost consciousness. Some minutes later Mr Lee told them to move Joanna to her room. When he saw Joanna on the Monday in her room, he said that Joanna’s face had “turned pale” and that, when he touched her body, it was cold.
[27] The final witness to the exorcism was Lydia. Her evidence also was that the exorcism of Joanna had begun at the Church building. Others were exorcised at the Church building but two to three hours were devoted to Joanna’s exorcism. Joanna was lying on the floor and Mr Lee first put his hand on Joanna and then he bounced on Joanna’s stomach. When she and Grace said that the demons were in Joanna’s throat, Mr Lee held Joanna’s neck with two hands. When they said that they were also inside her mouth, Mr Lee then moved one hand to Joanna’s cheek. This was to enable the demons to run out of the mouth. She said that the exorcism at the Church building lasted through the night.
[28] Lydia confirmed that Joanna’s exorcism continued at Mr Lee’s house after a rest. Asked by the Judge whether Joanna was reluctant to come forward for the exorcism at the Church and in the afternoon at the house, she said that there had been no reluctance but that Joanna had said that she found the exorcism painful:
You told Mr Perkins yesterday it was Pastor Lee that said at the church earlier on Lets do deliverance on Joanna? … Yes.
Where was Joanna standing or sitting at that time? … I dont remember where she was sitting or standing.
Did she go forward willingly or did someone help her to go forward? … When Pastor Lee said that, Joanna walked in front and she lied on the floor.
Did you go back with Joanna from the church to Marydale Drive that morning? … Yes.
Did you talk at all at that time about a further exorcism on Joanna later that day? … On the way back to Marydale Drive.
Or later before the exorcism started later that day? … No.
So Joanna didn’t say anything to you about being willing or wanting to have another exorcism that day? … No.
When the exorcism started that afternoon, did Joanna just walk forward and let herself be exorcised? … In that afternoon Pastor Lee said the same thing again, lets do the deliverance on Joanna and then Joanna walked in front and she lay herself on the floor.
Did she at any time that day tell you in your presence that she found the exorcism painful? … Yes. During the deliverance she said she was painful when the physical force was used on her.
[29] Lydia said that, at some stage during the deliverance, Joanna had asked Mr Lee to stop but they had assumed it was the Devil talking. Her evidence was:
Did she at that stage indicate she would like the exorcism to stop? … At that time she said some other strange things as well, and also the way she spoke to the pastor was different. She didnt use the respect word, she said Stop Stop bluntly, so we thought that was Satan’s word.
[30] Lydia said that the exorcism at the house finished with a cry from Joanna to expel the last of the demons. Just before the exorcism ended, there were still about two demons left in Joanna’s body but they had gone when Mr Lee had finished the deliverance. Mr Lee had two hands on Joanna’s neck at the last minute and he was holding her neck “very strong, very hard”. Lydia could not give the exact length of time Mr Lee had his hands on Joanna’s neck but said “I think it was not hours, I could say minutes.” At that stage Joanna’s legs and arms were moving with a “very big movement”. She said that, at Mr Lee’s request, various males had come to hold Joanna down, which stopped the movements. Joanna’s face had no expression at all at that stage. She thought she saw Joanna’s tongue come out of her mouth and it was like she was biting her tongue. Asked how the exorcism ended she said:
At the last stage, Pastor Lee pressed his force on Joanna on her tummy and her neck with his hand and also mouth, and then Joanna didn’t move at all. I could see something coming from her mouth, blood or just water and mucus type things.
So did Pastor Lee stop holding her neck and mouth? … Yes, he stood up.
What is Joanna Lee doing when he stands up? … She looked like sleeping, didn’t move.
[31] Joanna remained in the lounge for some time before she was moved to another room. We note that it appears that Joanna may have been moved at some stage from the lounge where the exorcism took place to the dining room. There were some blood spots found on the carpet and the wall of the dining room, one of which was identified by a forensic scientist as being very likely to have been Joanna’s blood.
[32] Lydia said that she noticed Joanna’s limbs were stiff when the others were moving her and she was worried that Joanna was dead:
How did you think she was at that time when she was being moved? … I had two thoughts at that time – the first one I didnt actually [think] she was dead after the deliverance finished, I thought she may be dying at the last part of the deliverance. I had a scared thought. The other thought was she was not dead – as I heard from people or from the Minister …
Concern yourself with what you heard from the Minister, was this Pastor Lee? … Yes Pastor Lee told me about the phenomenon that can happen after the deliverance and also I read it in the Bible and also people in Korea said about the same thing.
What did Pastor Lee say to you? … The person who is exorcised is resting, like sleeping, after the deliverance.
[33] Joanna’s body remained in the house tended to by the Church members for six days until the police discovered it. At one stage, a number of them were involved in washing the body and some tried to resuscitate her.Lydia’s evidence on that subject was to this effect:
Did you see Joanna Lee the next day, the Sunday? … Yes.
How did she look to you on the Sunday? … No movement at all, and she had no change in position where we had put her the day before and I could see the white colour on her face.
Would you see her from time to time over the next few days? … Yes.
Were you involved in washing her body? … Yes.
What did you use? … Cotton, alcohol, because her skin came off, I used the alcohol and cotton on her skin.
Before you used the alcohol and cotton, could you smell anything unusual? … Yes, before we washed her the smell was so strong thats why we decided to wash her.
Did the alcohol help reduce the smell? … Yes, helped a lot.
Did you see anyone try to resuscitate Joanna Lee? … I don’t remember that.
Did you not see anyone try to resuscitate her? … I don’t remember who, but I did blow the oxygen into her mouth.
Who did that? … At first Timothy did once, and then I did.
Do you know what day this was when you first saw someone try to blow in her mouth? … I dont remember the date.
Was it after she had been moved into this other room? … Now I remember her lips were very dry so I think it was four or five days after we moved her.
When you blew in her mouth, was that your idea to do that or someone else’s? … After we moved Joanna to her own room, we prayed to make her alive again, and then Pastor Lee gave us an example from the Bible saying that people do it mouth to mouth. He said that was to be done that way and at that time in that room, there were Timothy, Grace and me but at first we didnt have the courage to do that and Timothy did it first, so I followed him.
Did you say this was four or five days later? … Yes.
Involvement of the police
[34] On 14 December 2000, a visitor to Mr Lee’s house, Mr Muir, who was associated with Mr Lee’s Church, was shown Joanna’s body and he contacted the police shortly afterwards.
[35] Constable Raffills and Sergeant McPhee were the first police officers sent to Mr Lee’s house on 15 December 2000 after the complaint had been made. When the police first arrived at the house, they noticed a very bad smell coming from the house. They knocked and could see movement inside but it took several minutes for anyone to come to the door. Eventually Mr Lee came to the door. The officers said that they had been told that there was a body in the house. According to Constable Raffills, Mr Lee said that there was not, and “[h]e said that a woman had died last Friday but now she was alive but that she was sleeping at the moment”. Sergeant McPhee had a slightly different recollection. His evidence was that Mr Lee had told them that someone had been sick but was now better and alive. The officers then asked to be taken to see the person in case she needed medical attention. Mr Lee agreed. When they were taken to view the body, Constable Raffills said that Mr Lee told them that Joanna had a heartbeat and was breathing.
[36] Detective Sergeant Hooper was called to the address by Sergeant McPhee. Mr Lee told him that Joanna was not dead and that she was in fact going to come back to life and asked if he wanted to see a video. The video was played and Mr Lee pointed out that Joanna’s skin was peeling away in one part and was a pinky colour underneath which meant that she was regenerating. He also said that her fingers were moving but Sergeant Hooper noticed that another person had hold of Joanna’s hands and was moving her finger. In the Sergeant’s view, Joanna had been dead for some time at the time the video was filmed.
[37] Sergeant Hooper asked for the tape to be switched off and gave various instructions to Mr Lee. Mr Lee then spoke to the others in Korean. After some time the Sergeant noticed that Joseph was videotaping the conversation and asked him to switch the tape off as he was concerned that Joseph was videotaping over the earlier images he had been shown. Mr Lee’s comments to his followers on the video were translated. One of those comments was as follows:
The priest says if anybody asks just reply that in the middle of praying she just suddenly stopped breathing. Don’t tell them any other thing. If they ask how she died just say that she suddenly stopped breathing in the middle of prayer.
[38] Joseph in his evidence also said that, while the police were at Mr Lee’s house, he was told by Mr Lee what to say to the police:
He advised me to tell the police that we didnt touch Joanna’s body, Joanna suddenly became like this for herself. We just prayed, he asked us to tell the police we just prayed and we didn’t touch Joanna’s body and that Joanna became like that for herself.
Evidence on cause of death
[39] The pathologist was unable to determine the cause of Joanna’s death owing to the decomposition of the body. There was no evidence of pre‑existing disease or injury, but Joanna had suffered two broken ribs and a broken sternum, which must have occurred prior to death, as well as associated bruising. The findings of the pathologist were not inconsistent with the Crown case that the immediate cause of Joanna’s death was manual strangulation. We note that, when asked if he was familiar with the term “manual strangulation”, the pathologist gave the following definition:
The topic of death as a result of pressure to the neck of an individual – are you familiar with the term manual strangulation…Yes.
What do you understand it to mean…The application of hands to someone’s neck that may result in the death of that person.
[40] The pathologist suggested two mechanisms whereby pressure on the neck could cause death – the first being a blockage of the airways cutting off the ability to breathe and the second being pressure on vital blood vessels and associated nerves. He said that pressure on the side of the neck can stop blood flow to or from the brain or put pressure on the nerves in the neck. This in turn can trigger a chain of events where there is a change in the blood pressure, which in turn can lead to interference with the normal rhythm of the heart, which can slow down, speed up or stop.
[41] The evidence of the pathologist was that anyone who was dying may have an involuntary fit due to lack of oxygen to the brain. The pathologist said that, in a case of manual strangulation, the movement of the arms and legs in a vigorous way would be consistent with a fit occurring at or about the time of death. He said, however, that one could not determine the mechanism of manual strangulation in question by the fact that the person’s arms or legs were moving at the time of death.
[42] The pathologist said that, if a person’s face were pale at the time of death, it would suggest that pressure on the nerves had caused the heart to go into an abnormal rhythm and eventually stop and that death had occurred reasonably quickly. His evidence was that, if the blood flow had been completely blocked off for a sufficient period, the person would have had a flushed look to their face. If death had occurred because of inability to draw breath, he would expect the person to have a bluish appearance. He was not asked how much pressure had to be applied to the neck for death to occur through pressure to the nerves. He said:
If a person’s face was observed to be pale after death from manual strangulation would that suggest anything to you?…That suggests that the mechanism involving the nerves has played a part in that the death has occurred reasonably quickly, that pressure on the nerves has caused the heart to go into the abnormal rhythm and eventually stop, if there had been pressure on the neck especially on the jugular vein for long enough when a person is strangled, the face classically has a red or purple appearance and there may be tiny haemorrhages present so at one end of a spectrum you may have someone showing very little change or appearing pale which may suggest the nerves have played a part or someone else where the blood flow has been completely blocked off for sufficient period of time for the person to have a flushed look to their face.
What if death resulted from the first mentioned mechanism, the inability to draw breath, a pale complexion would be consistent or inconsistent with that? … I don’t think they would be pale, they would have a bluish appearance to them.
Is it possible for you to pass any sensible comment on the amount of time necessary for death to result from manual strangulation? … Thats essentially impossible to do with any degree of accuracy, for a variety of reasons. Depends on the fitness of the person, on whether the hands are applied and then released, that may have a factor on the length of strangulation, depends on whether the airways are blocked off or there has been pressure on the nerves.
[43] The pathologist was not asked about any effects Joanna’s fasting (see at [19] above) may have had. There was evidence, however, called from another witness to the effect that Joanna’s alleged vitiligo could not have been fatal.
Other exorcisms performed by Mr Lee
[44] At trial, both Joseph and Lydia gave evidence that Mr Lee had performed exorcisms on them, which had caused them pain and affected their ability to breathe through Mr Lee’s hands pressing on their necks. There was other evidence to the same effect from three other Church members – Mr Lian, Mr Hemara and Mr Muir. For example, Mr Muir said of the exorcisms performed on him:
Did you have it performed on you, the exorcism. … Yeah I had a couple, twice.
The first time it happened, describe what happened? … The custom was they lay down for prayer and it being sort of new to the group and seeking to honour I lay down as they all did. Then the hands were placed probably on my stomach and they came too close to my upper abdomen and started to hurt me when he pressed on the solar plexus and I was just about to say to him hold it youre hurting me when he stopped.
Could you tell how much force he was applying to you? … It was very firm, enough to cause considerable discomfort.
What about the second time? ... That was on a Sunday morning and I ended up out there in front of the congregation and I was told I had a proud spirit and I said oh Well, he proceeded to start on my chest and ended up whether one hand or two, (witness shows strangling motion) I was restricted in my breathing and was moving back a little.
Are you standing when this is occurring? … Yes.
It starts where on your person … That particular one I cant exactly recall, I can only remember when it started to get uncomfortable.
Where was he holding or pushing when it became uncomfortable … Very high up under the jaw.
How soft or hard was he pressing? … It was past being firm, it was literally … and was restricting my breathing, a little pain you can put up with but …
Did you say anything? … It ceased before that came out.
Evidence on practice of exorcism
[45] The Crown led evidence on the practice of exorcism from Mr Dowie (see at [9] above). He confirmed that the Assembly of God believes that the casting out of demons or evil spirits can take place. He gave the following evidence in relation to deliverances he had performed:
Could you describe that last step for me in some detail – what would you actually do to achieve that end?…I didnt have any set pattern of doing it, maybe if someone was standing in front of me I would just speak or pray in the same way as we are now, I may put my hand on their forehead, may put my hand on their shoulder, so that would be as much as I would do.
If you touched a person in that way, would you indicate the degree of force you would use…Witness demonstrates just a touching.
In terms of the teaching of your church, the demonic power you were seeking to expel from a person – is this a spiritual being, a physical being or what?…A spiritual being.
So when you indicated the most you would do is a touching to the forehead or shoulder, is that related to the fact that we are dealing with a spiritual rather than physical being?…Yes and no, I would possibly put my hand on their forehead as a point of contact to let them know we are praying for them, but it certainly has nothing to do with the expulsion of any demonic powers in a physical sense.
Is this because they are spiritual rather than physical?…Thats right…
To what extent do you consider yourself familiar with the Bible?…I dont class myself to be an expert but I know it fairly well.
Are you aware of any Scriptures that indicate that other than a touching during the course of deliverance or exorcism is appropriate?…I dont know of any such Scripture.
[46] Evidence on exorcisms was also given by Mr Subritzky, an evangelist, who was in the Anglican Church for many years. More recently, he has been associated with the Assembly of God. Mr Subritzky has written a number of publications and training videos in relation to his evangelistic work, including the subject of deliverance. He has performed many thousands of deliverances. He gave the following evidence on the procedure:
Is there a particular procedure you adopt for a deliverance... Yes, I wait upon the holy Spirit as to how a deliverance should be conducted, and Im always aware of the need to exercise caution and wisdom which I believe we receive from God.
Would you make any physical contact with the person the subject of a deliverance... Yes, where necessary, on occasions a demonic power will leave a person at the command or using the name of Jesus Christ but on other occasions, the demonic power may cause the person to act violently and in their own protection, they may have to be restrained. I would never use excessive force and in seeking to restrain the person, sometimes several people may be involved in that restraining but obviously using caution that they didnt hurt the person.
Where would you personally make contact with the person in a deliverance, what parts of their body... Sometimes on their head if I felt that was the right thing to do, we are speaking of spiritual matters and I would seek the guidance of the Holy Spirit as to where I lay my hands, may be on their neck or shoulders or with permission on her stomach, if a lady I would ask to put my hand [on] their hand first, and in the course of this these powers will manifest.
What degree of force would you use when making contact with someone... Normally lightly place my hand on neck or shoulders or back or spine, the only time real restraint would be exercised would be when a person manifests so violently they are in danger of hurting themselves, eg Ive had to see someone restrained because the demonic powers would want to take them thru a plate glass window so in their own interests I would restrain them with help of others, I would normally only do deliverance with other people assisting me.
In terms of you placing your hands on a person, is the amount of force used always the same?... Yes, usually yes, the point of laying on the hands is for the power of the Holy Spirit to touch the person, the reason for it, so as a believer in Jesus Christ, I believe the Holy Spirit operates thru me so in laying the hand on the person’s neck or shoulder I would believe I had a direction to do so because that is where the spirit is attached externally. So in laying my hand there it would be for the purpose of allowing the power of the Holy Spirit to touch the person and with that, the spirit will come off or if it is not prepared to come off, it will manifest thru the person in their body taking various forms and shapes.
So does that have anything to do with what you told us earlier that these demons are spiritual rather than physical the fact you dont use other than mild contact?... Yes.
So do you understand in the course of a deliverance or exorcism any need to apply more than mild physical contact as a means to physically force a demon from a body?... Under no circumstances would I try to force a demon from the body, I would purely be laying hands for the purpose of the power of the Holy Spirit to be touching that person in the same way we lay hands on people who are sick.
Mr Lee’s statements to the police
[47] Detective Sirl went to Mr Lee’s house at 1.21 am on 15 December 2000. He asked Mr Lee if he would accompany them back to Auckland Central Police Station. Mr Lee did so willingly. At the station a video interview with Mr Lee took place, with an interpreter present. In that video interview Mr Lee said that Joanna had died but that she had come back to life. Mr Lee said that he had talked to the demon inside Joanna in Korea and it had planned to kill her. After Joanna came to New Zealand he prayed for her and she was getting better spiritually.
[48] Taken to the events on the day Joanna died, Mr Lee said that Joanna had announced that she loved Jesus Christ and that a demon was trying to kill her and then she had died suddenly. He said that the last demon had said “I am last one, if I go out, she is dead”. Joanna would be empty when it had gone. Mr Lee then commanded the last demon to go out and Joanna bit on her tongue. He said at first he had just been praying but later admitted placing his hand on her forehead and stomach. He said that, after the last demon had left, Joanna stopped breathing and did not move. She was like a wooden stick. He then said that, as soon as Joanna had died, God spoke to him and said that Joanna was not dead and that he could raise her.
[49] Detective Kapa took a short written statement from Mr Lee at 1.15 pm on 15 December 2000. At the time he was not aware that a video interview had been conducted. In that written statement Mr Lee said:
I am talking to Detective Kapa about some features surround the death of Keum Ok Lee [Joanna]. She lived with my wife and I for one and a half month. She was sick before arriving. Another friend Priscilla knows more about her sickness than me.
On Saturday Keum Ok Lee or Joanna was ill. Originally she lay on the carpet floor in the front room. When we considered that she had died we lay her on an inner sprung mattress in the same room. She died on Saturday morning.
Both Lidia [sic] and Timothy tried to make her breathe and resuscitate Joanna on either Monday or Tuesday. I’m not exactly sure how they did it but they put their mouths over Joanna’s mouth and press their hands against her chest to try and resuscitate her. I don’t know how hard they pressed upon her chest area.
Between Tuesday and Thursday Joanna’s hair was cut and her clothes removed.
I think Lidia [sic], Grace and Grace’s mother cut her hair with scissors. This was done because of the smell and odour.
I think the same three woman and Tim removed the clothing from Joanna. The clothing was rotten and there were white insects coming out.
The three woman also cleaned the body. The women cleaned the skin with alcohol using cotton material.
We all prayed around her and layed our hands on her, otherwise no one touched the body.
[50] At a further video interview on 30 December 2000 with Detective Chambers, Mr Lee admitted doing a deliverance on Joanna. He said that she was lying down and he was just singing. There were about twenty demons in Joanna and they talked to everyone there. He said he would sometimes touch Joanna here and there, sometimes with one hand and sometimes both. Many of Joanna’s demons were suicide demons. Mr Lee said he sometimes pushed demons out but not all the time and he could not remember whether he had done so with Joanna. He would not push very much as he is not heavy. Because Joanna was a woman, someone else’s hand would be underneath. He admitted sitting on Joanna but could not remember how. He did not remember if he touched Joanna’s neck. He explained his loss of memory by saying that he was very tired at the time because of the all night prayer meeting. Mr Lee then repeated his assertion that the last demon had said that it would kill Joanna and he said that everyone in the room had heard it.
Mr Lee’s participation in the trial
[51] Mr Lee was arrested and charged shortly after the initial police investigation in December 2000. Before depositions, Mr Lee instructed counsel, Ms A. Depositions were held on 11 June 2001 and a trial date set for December 2001. In October 2001, Mr Lee elected to dispense with the services of counsel and represent himself at the trial. Ms A, however, remained available to assist Mr Lee during the trial. In particular, she offered to cross‑examine the Crown pathologist and the expert on exorcism. This offer was, however, not taken up. Mr Lee took no part in his trial except to make a closing address to the jury where he asserted that the devil had killed Joanna and begged for more time for her resurrection. He did not cross‑examine any witnesses or call any evidence.
[52] Before the trial commenced, Mr Lee had been examined for the purposes of ascertaining whether he had a mental disorder or disability. It was concluded that, although he was devoutly religious with an extreme belief system, Mr Lee was not suffering from any mental disorder or disability and was not delusional.
Crown’s pre‑trial memorandum
[53] The Crown prepared a memorandum before the trial, which was provided to Mr Lee and to Ms A on 22 November 2001. It appears from a notation on the document that Ms A offered to discuss the content of the memorandum with Mr Lee but there has been no waiver of privilege and so whether those discussions took place and, if so, their extent and content, is not before the Court.
[54] The memorandum set out a list of the proposed prosecution witnesses arranged in the order in which they were expected to be called. It also confirmed that a number of excisions had been made from the video interview of Mr Lee and that the post mortem photographs of the deceased would not be provided to the jury. The memorandum also dealt with the playing of three videotapes seized from Mr Lee’s address and of television coverage of the trial.
[55] The memorandum went on to deal with the elements of the charges. With regard to count one, the Crown said that it accepted that it must prove that Mr Lee intentionally applied force to Joanna, that the application of force was a substantial and operative cause of her death and that the application of force was objectively dangerous in the circumstances. It also accepted that, if consent was not removed as a defence on public policy grounds, it had to also prove that Joanna did not consent to the application of the force that caused her death or that any consent was vitiated by mistake or incapacity and that Mr Lee did not believe she consented. The Crown indicated that its position was that Joanna did not consent to the assaults, at least from the point when death was imminent. Alternatively, if Joanna did consent, that consent was vitiated by mistake or incapacity at the time the fatal force was applied, for example, because she did not appreciate the force to be applied.
[56] In any event, the Crown’s position was that public interest precluded consent being raised as a defence in the particular circumstances of this case. The Crown identified the following as relevant factors:
(a)The extent to which the Accused’s actions went beyond those normally associated with religious or spiritual practice;
(b)The psychological control exercised by the Accused over the deceased, and her vulnerability due to fasting and physical weakness;
(c)The risk of death or injury to people participating in ceremonies of this nature;
(d)The degree of force applied; and
(e)The injuries suffered by the deceased.
[57] The Crown indicated that it would ask the Judge to rule that public policy grounds precluded consent being raised as a defence. The Crown anticipated submitting that a ruling removing consent as a defence would not be contrary to the New Zealand Bill of Rights Act 1990 (BORA), because Mr Lee’s conduct went beyond legitimate religious practice, and accordingly there would be no prima facie breach of s 15. Alternatively, to the extent that s 15 would be breached, such breach would be no more than a “reasonable limit” under s 5 of BORA.
Ruling on consent
[58] The Crown duly asked the trial judge, Paterson J, to direct the jury not to consider the issue of consent. This application was dealt with on 3 December 2001 at the end of the Crown case when Mr Lee had confirmed he was calling no evidence. The jury was sent away for the day at approximately 11.15 am. The Judge appointed Ms A as amica curiae so that that she could make submissions on the matter. Argument was then heard and a ruling issued at 5.00 pm that day.
[59] In his ruling, Paterson J noted that there was no direct New Zealand authority on the issue of the limits of any consent defence. However, he pointed out that, in R v B CA179/94 7 July 1994, this Court appeared implicitly to accept English authority to the effect that, in certain categories of crime, consent is not a defence. Paterson J went on to discuss the English authority referred to in R v B. He referred to the following comment of the English Court of Appeal in Attorney‑General’s Reference (No 6 of 1980) [1981] 1 QB 715 (at 719):
…it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason…it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.
[60] Paterson J also discussed R v Brown [1994] 1 AC 212 and, in particular, the speeches of Lord Jauncey of Tullichettle and Lord Templeman. He said that the majority of the House of Lords had held that consensual sado‑masochistic homosexual encounters which occasioned actual bodily harm to the victims were contrary to the relevant statutory provisions, notwithstanding the victim’s consent to the acts inflicted on them. This was because public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men and the potential for the infliction of serious injury.
[61] Paterson J noted that Lord Templeman’s analysis of the previous case‑law showed that consent is a defence to the infliction of bodily harm in the course of some lawful activities but that Lord Templeman could see no policy reason to extend this to sado‑masochistic activities. Paterson J also noted Lord Jauncey of Tullichettle’s remarks that the infliction of bodily harm is unlawful and the consent of the victim irrelevant, save where recognised exceptions (such as properly conducted games and sports and dangerous exhibitions) apply.
[62] Paterson J saw the issue raised by the Crown as being whether there should be a policy in New Zealand similar to that in the United Kingdom on the limits of the defence of consent where assault is alleged. He noted that Ms A “accepted that this was an appropriate proposition to make”. Paterson J agreed and held that it was appropriate to adopt the Brown position in New Zealand. However, he considered that it was unnecessary in this case to fix the boundaries of such a policy because, applying the principles of the English cases, consent is no answer to the application of force to a victim which causes death.
[63] Paterson J went on to discuss public policy factors. He accepted that Mr Lee had the right, under s 15 of BORA, to manifest his religious belief by conducting an exorcism but held that this right is subject to the other BORA provisions, particularly ss 4 and 5, and that it does not override the provisions of the 1961 Act. Mr Lee thus had no legal right to conduct exorcisms in a manner which is likely to cause serious bodily harm to the person being exorcised.
[64] Paterson J could see no reason for determining that it is in the public interest that a person should be able to consent to the deliberate infliction of force which is likely to cause death or serious bodily harm during the course of an exorcism. In his view, this was not a case where the Court should extend the categories of lawful activities where consent is a defence to the infliction of actual bodily injury.
[65] Accordingly, Paterson J concluded that he would direct the jury that, if they accepted that Mr Lee caused Joanna’s death by manual strangulation, then the issue of Joanna’s consent was irrelevant.
Summing up of Paterson J
[66] Addresses by Mr Lee and the Crown took place on 4 December 2001, the day after the ruling was given on consent. Paterson J summed up to the jury at 10.00 am on 5 December. With regard to count one, the Judge instructed the jury that there were only two elements that the Crown had to establish. First, it must establish that there was a homicide or killing. In other words, it must establish that Mr Lee killed Joanna or that he committed the act which was a substantial and operating cause of death. The second element that must be proved is that the homicide was culpable ‑ ie blameworthy in law. On that subject, the Judge said:
If someone causes the death of another person as a result of assaulting that person, then he or she has committed a culpable homicide. An assault means the act of intentionally applying force to the person of another directly or indirectly. The application of the force must be intentional but the amount of the force is irrelevant. If you are satisfied that Mr Lee intentionally applied force to Joanna, then he assaulted her. It is not necessary that he intended to kill her or even cause harm to her. If the force intentionally applied caused the death of Joanna, it follows that Mr Lee killed her by an unlawful act and is guilty of culpable homicide. In this case, the Crown accepts that the culpable homicide would be manslaughter and does not suggest that it is murder. In summary, the essential ingredients of Count 1 are firstly, that Mr Lee assaulted the victim by intentionally applying force to her, and secondly, that the assault caused her death. [Emphasis added]
[67] On the issue of consent, the Judge said:
I have also noted that if you accept the Crown’s submission of facts, namely, that Mr Lee killed Joanna by strangling her, then consent is not an issue. No person can consent to being assaulted in such a manner that the assault kills that person. So if you determine that the only two elements apply, you do not have to address the question of whether or not Joanna may have consented to that happening. [Emphasis added]
[68] The Judge then went through the elements of count two. He instructed the jury that homicide is also culpable where it consists of the killing of any person by an omission without lawful excuse to perform or observe any legal duty. The legal duty relied upon in this case was the duty to have and to use reasonable knowledge, skill and care when undertaking to do any lawful act (in this case the exorcism) which is or may be dangerous to life. The Judge summarised the elements which are necessary to establish count two as follows:
…one the action of Mr Lee was a substantial and operating cause of Joanna’s death, two the exorcism ceremony undertaken by Mr Lee was or may have been dangerous to life, thirdly Mr Lee omitted to use reasonable knowledge, skill and care in performing the exorcism ceremony, fourthly Mr Lee did not have any legal excuses for omitting use [sic] the reasonable knowledge, skill and care referred to in the previous sub-paragraph, and finally the failure to use the said reasonable knowledge, skill and care in performing the exorcism ceremony was a major departure from the standard of care expected of a reasonable person in the circumstances.
[69] After discussing the elements of count two, the Judge made some remarks about religious freedom and BORA. He said that religious freedom is not an absolute right and it does not enable a person to infringe the laws of the country. He went on:
What it means in this case is that Mr Lee was free to practice exorcism in New Zealand as part of his religious belief. The Crown does not contend otherwise. However, the right is subject to limitations imposed by law. One of those limitations is that in exercising his right to carry out such religious practice, he is required to do so lawfully. If a person in following a religious practice, infringes any of the provisions of the Crimes Act, that person is not able to raise as a defence that he was observing a religious practice which was part of his or her religious belief. As I have noted, the Crown does not say that Mr Lee was not able to perform an exorcism in accordance with his religious beliefs. It says that in doing so, he is obliged to comply with the laws of the land just as any other person is obliged to comply with those laws, when he or she goes about his daily activities. That is the legal position which you could consider if you think it relevant in this case.
[70] The Judge finished by summarising the Crown case and the defence case. Of the Crown case on count one he said:
[16] I now turn to summarise the two cases. The Crown’s case in summary is that Mr Lee, believing Joanna was possessed by multiple demons, performed an exorcism on her which lasted a number of hours, maybe even five to six hours. It was a fearful ordeal during which she suffered three fractures, one to the sternum and two to the ribs. The pathologist’s evidence said that those fractures occurred before death. The critical events, the Crown says, occurred after a number of hours of exorcism. At that stage, the submission made to you was that Mr Lee’s hands were on Joanna’s neck, her legs and arms began to thrash, Mr Lee had her held down by others, at one stage she asked him to stop, he did not stop and the pressure on her neck caused her death. In other words, she died from manual strangulation. [Emphasis added]
[71] The Judge said that the Crown case was that Mr Lee by his actions caused Joanna’s death. He was sitting on her, bouncing up and down on her, and exerting considerable pressure on her neck. She died about the time her arms and legs were thrashing around. The Crown case was that Joanna’s arms and legs were thrashing for one of two reasons: either she was attempting to have the force to her neck released or she was in a terminal seizure at that stage.
[72] Dealing with the second element of the first charge, that there was an assault, the Judge noted that the Crown’s position was that, if the jury determined that Mr Lee killed Joanna, it inevitably follows that he did so by assaulting her, assault merely being the intentional application of force. If the jury accepted the Crown’s case that Mr Lee strangled Joanna, he obviously applied force to her. In other words, the Crown’s submission was that the jury’s first finding would, in effect, determine the second finding.
[73] The Crown case on the second count was that the particular mode of performing exorcisms followed by Mr Lee was a danger to life. The Crown pointed not only to what happened in this case but also to the evidence of other exorcisms. It was also submitted that Mr Lee had little skill in the area and the Crown pointed in this regard to the evidence of the other witnesses who have performed exorcisms. On the fifth requirement, the Crown’s position was as follows:
In respect of the fifth requirement, the major departure requirement, the Crown’s position is that it is for you to judge what is reasonable and it asks you to use your common sense. It refers you to the evidence of Mr Subritzky and Mr Dowie to assist you as to whether there was a major departure from the standard of care expected of a reasonable person in the circumstances. It is the Crown’s position that the evidence of Mr Subritzky and Mr Dowie enables you to set the benchmark of what is reasonable in the circumstances. That, in brief, Mr Foreman and members of the jury is the Crown’s case which you heard yesterday.
[74] On the defence case the Judge said that Mr Lee’s case had to be summarised from his final address and what he said in his two interviews with the police officers. On count one the Judge said that Mr Lee’s case, as he understood it, was as follows:
He accepts that Joanna died on 9 December, said that she came back to life to some degree but the demon re-entered her body when the house was left unguarded after the police took the occupants away. If you determine that she died on 9 December, then any subsequent resurrection is of course irrelevant. The evidence of the 9th December is the critical evidence and Mr Lee’s submissions to you in this respect are that the demon was heard to say something, Joanna was made by the demon to put her tongue between her lips, Mr Lee’s fingers were on her cheeks to prevent her from dying, the demon got out and Joanna died two or three minutes later. In making that submission Mr Lee did not refer to the evidence upon which he says it was based. In fairness to him I have gone through the evidence to see whether there was any evidence given of what he said. You will have of course the transcript of his video interviews and you will be able to check them yourselves. The only evidence I can detect which seemed to go to the submission made by Mr Lee was firstly from Timothy when he said that Joanna said at that time in a different voice “I will kill you” and then with the evidence of Lydia who said just before the deliverance finished on Joanna “There was this cry with the last deliverance to expel the demon out.” I cannot find any other evidence in respect of Mr Lee’s submissions. Put simply, Mr Lee submits that he did not kill Joanna but the devil did. As such, he did not address you on the second element, namely, that he assaulted Joanna. The only evidence you have of this is the police interview which I have already commented on. He gave his version of that interview.
[75] The jury was also given a written sheet setting out the elements of the charges in terms similar to that set out above. This issue sheet set out the legal definition of “assault” as follows:
“Assault” means the act of intentionally applying force to the person of another, directly or indirectly. The application of such force must be intentional but the amount of force is irrelevant. If you are satisfied that Mr Lee in this case intentionally applied force to Joanna, then he assaulted her. It is not necessary that he intended to kill or even cause harm to her.
[76] On the issue of consent, the issue sheet said simply:
If you accept the Crown’s submission of facts, namely that Mr Lee killed Joanna by strangling her, then consent is not an issue.
Jury Question
[77] The jury retired at 10.50 am on 5 December 2001. At 12.47 pm, the jury asked the following question:
“Do I need to take the meaning of the word “assault” as that given on page 2 of the “Legal Elements of Charges” document [see above at [75]]. If so, and I find the accused not guilty on Count 1, how can I make a decision under Count 2, when in my view, the omission to use knowledge, reasonable skill and care involves the intentional application of force. In which case, would default back to count one. Has intentional application of force got nothing to do with Count two?
[78] The answer given was as follows:
I have your question and I have discussed it with counsel and Mr Lee. I intend to answer it with four comments or statements. Firstly, the meaning of the word “assault” is as set out in page 2 of that schedule. It is nothing more than the act of intentionally applying force to the person of another directly or indirectly. The result of the application of that force is irrelevant so if force is intentionally applied, there has been an assault. In respect to the next portion of your question, if you were to conclude that Mr Lee caused Joanna’s death but not by an intentional application of force, then of course you cannot convict on Count 1. That’s fairly clear because of the two elements. The third point is that it would be inconsistent to find Mr Lee not guilty under Count 1 but guilty on Count 2 if the omission to use reasonable knowledge, skill and care was based on an intentional application of force by Mr Lee. In other words, the omission under Count 2 could not be that he intentionally applied force, because if you are getting to that position you should have convicted under Count 1. The final point is that an intentional application of force is not an essential element of Count 2. There may be circumstances where there could be a conviction under Count 2, an example would be if you determined there was an application of force but it was accidental and not intentional. Then, if you come to that conclusion, you would need to go back and look at the other elements of that charge to determine whether or not you were satisfied that they had been proved to your satisfaction. Does that answer your question? [Emphasis added]
[79] The jury retired for further consideration at 12.52 pm and returned with a verdict of manslaughter at 3.35 pm that day.
Affidavit of Mr Lee
[80] In his affidavit of 10 November 2004 filed in support of his application for an extension of time to appeal, Mr Lee explained that, before the trial, he had discussed with his then lawyer, Ms A, various matters that she would bring up in his defence. However, at the time of his trial, he decided to take no steps in his defence. He put his decision not to take part down to a number of factors, including his view that God had sent him a message not to take part. He explained that, just before the trial, he felt a:
…very deep sorrow about the whole incident and process, and I believed there was no hope of a just outcome. Looking back now I believe I was in shock when I decided to take no part in the trial.
I was also very affected by the way in which the trial process was affecting my family and other members of my church. Members of my congregation were no longer supporting me or my family.
[Ms A] had been contacting potential witness [sic] for me, including other ministers who engaged in the same exorcism practices as me. I was very shocked and disappointed when they did not want to become involved in the trial.
At the time that I decided to take no steps in the trial I was reading the Bible. I read many passages which to me at that time were a clear message from God to be passive at the trial.
[81] He said that he now regrets his decision to take no part in his trial and to have no lawyer acting for him and he now understands that that was the time to test the evidence presented by the Crown and to put forward his version of events. He said that he believes he was very stressed and depressed at the time of his trial because he had been in custody since his arrest in December 2000. Immediately after the trial, he was placed in a special needs unit at a remand prison in Auckland because he was not speaking and he believes he remained there for three weeks.
[82] Mr Lee deposed that, during the trial or a short time afterwards, he remembers being told that one or some members of the jury had been talking to the media about his case and that this could mean that he could have a new trial. He said that “I did not care at the time and I did nothing about it”.
[83] Mr Lee also deposed that, shortly after he was sentenced, he was served with a deportation order because of his conviction. (We note that it was in fact a removal order served on 17 December 2001.) He said that his final release date from prison was to be 19 January 2005 and asked that his application for leave be heard before that date as, if his appeal was not determined at the time of his release, he would have no ability to resist deportation away from his wife and five‑year old daughter.
Affidavit of Senior Sergeant Rogers
[84] Senior Sergeant Rogers was the officer in charge of the investigation into the death of Joanna. In her affidavit of 31 February 2005, she deposed that she had made inquiries with the New Zealand Immigration Service to ascertain the availability of witnesses who had given evidence at the trial in 2001. A number of the minor witnesses are still in New Zealand. Timothy and Joseph have, however, both left New Zealand, Timothy in 2004 and Joseph in January 2005. Lydia is also still in New Zealand but her location is at present unknown. Sergeant Rogers said that Lydia had required considerable persuasion to give evidence and that she had been accommodated in an apartment away from any other fellow Koreans as she was so embarrassed about her part in Mr Lee’s ceremonies.
[85] Sergeant Rogers deposed that she doubted that witnesses could be persuaded to return from Korea for a second trial. She said that some witnesses had refused to return to New Zealand for the first trial and it had had to proceed without them. She mentioned interviewing two potential female witnesses in Korea in 2001 but both had refused to return, saying that they had discharged their duty when they had told the police what had happened when Joanna died. Even those who gave evidence at trial had required considerable persuasion and support to do so because of the media attention that the case generated. She said that she doubted whether she would be able to persuade them to give evidence again:
Several of the participants in the appellant’s ceremonies, once removed from his influence, began to feel extremely foolish that they had believed the deceased would return to life if they continued to follow the Pastor’s directions and pray over her. It took many hours of support and rapport building to get the remaining witnesses to give evidence against the appellant. I have had no contact with any of the witnesses since soon after the completion of the trial and doubt whether I would be able to rebuild the relationship and trust level to allow them to give evidence again.
[86] Sergeant Rogers also indicated that difficulties may arise should it be necessary to engage the services of Interpol in Korea. She had established communication with Korean police officers when she visited Korea in 2001 but she was uncertain as to the rigour and thoroughness of their inquiries should they be required to locate witnesses.
Parties’ submissions on extension of time
Mr Lee’s submissions
[87] Mr Lithgow, who presented Mr Lee’s argument on his application for an extension of time to appeal, made three main submissions. First he argued that R v Knight [1998] 1 NZLR 583, the case usually referred to when discussing applications for extension of time, was wrongly decided. In his submission, the test should not be a broadly based balancing test. Instead, if an appeal is arguable, an extension should be granted automatically. If he was wrong in that submission, Mr Lithgow’s second submission was that the Knight principles are restricted to cases where there has been a change in judicial interpretation since a person’s conviction.
[88] Mr Lithgow’s third submission was that the Knight test was in any event met. In his submission, the merits of Mr Lee’s appeal are overwhelming. The Judge failed (without correction from the Crown) to direct on objective dangerousness and he also (at the Crown’s instigation) withdrew the defence of consent from the jury. In Mr Lithgow’s submission, the errors in Mr Lee’s trial were significantly of the Crown’s own making and cannot, therefore, be overridden by the public interest in finality of litigation.
[89] Mr Lithgow submitted that the inconvenience for witnesses and the difficulties in holding a second trial do not outweigh Mr Lee’s right to a fair trial, which is now explicitly guaranteed under BORA. In his submission, the right to a fair trial is not an optional standard to be weighed off against the inconvenience of others. In this case, in any event, Mr Lee’s punishment has been completed and all that would be lost if a second trial could not be held would be the technical conviction or acquittal.
[90] In terms of the other factors outlined in Knight, Mr Lithgow submitted that there is some explanation for the delay because the only way Mr Lee could have understood the errors of the trial process would have been if somebody had been in a position to take the time and effort to unravel the very difficult legal issues involved. Further, there are no floodgate risks in this case as the situation is peculiar to its own facts.
Crown’s submissions
[91] Ms Markham, for the Crown, submitted that the balancing test in Knight is clearly the appropriate test. Otherwise, there would be no practical difference between an appeal filed in time and one filed ten years late. Ms Markham did not accept that the Knight test is limited to changes of law since conviction. Even if it were, however, she submitted that Mr Lee’s case comes into that category. The ruling Paterson J gave on consent was in accordance with the law as it was understood at the time of Mr Lee’s conviction. Absent special circumstances, therefore, that conviction should stand.
[92] In Ms Markham’s submission, the Knight test in this case clearly favours leave being refused. Mr Lee made a deliberate decision not to appeal in time and the delay in filing this application is both extraordinary and unexplained. Mr Lee has finished his term of imprisonment and so his liberty is not at stake. His motive in filing the application appears to have been the collateral one of avoiding removal from New Zealand.
[93] There is also, in Ms Markham’s submission, real prejudice to the Crown in that a retrial is all but impossible, both because witnesses are unavailable and because Mr Lee has given no undertaking to return for it. She noted that the outcome of any extradition process from Korea is uncertain. In addition, Ms Markham submitted that the merits of Mr Lee’s appeal are not strong and that the strength of the Crown case against him was overwhelming. Neither, in Ms Markham’s submission, should a new trial be granted out of a perception that Mr Lee’s trial tactics were not in his best interests. Mr Lee chose to be unrepresented at trial, despite Ms A being available to him throughout if he desired.
[94] In Ms Markham’s submission, where there is long unexplained delay and significant prejudice to the Crown, an appellant must show substantial merits of a kind that cast real doubt on the propriety of the verdict. In her submission, Mr Lee is unable to meet that test.
DISCUSSION OF APPLICATION FOR EXTENSION OF TIME
The Knight test
[95] Section 388(1) of the 1961 Act provides a right of appeal, provided the appeal is filed within the statutory time limit. After that period, an application for an extension of time must be made under s 388(2). The statute does not, however, lay down any guidelines as to the circumstances in which time may be extended. Section 388 provides as follows:
388 Time for appealing
(1) Where a person convicted desires to appeal to the Court of Appeal against his conviction or sentence, or to obtain the leave of that Court so to appeal, or where the Solicitor-General desires to obtain the leave of the Court of Appeal to appeal against the sentence passed on the conviction of any person on indictment, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within 28 days after the date of conviction or (if the convicted person is not sentenced on the date of conviction) at any time after the conviction, but not later than 28 days after the date of sentence.
(2) The time within which notice of appeal or notice of application for leave to appeal may be given may be extended at any time by the Court of Appeal.
[96] The case of Knight has been treated as articulating this Court’s approach to applications for an extension of time to appeal. It sets an overall standard of the interests of justice, arrived at by balancing all relevant factors. Knight concerned an application to extend the time to appeal against a conviction for benefit fraud. After Ms Knight’s conviction, this Court had modified the test for whether a relationship in the nature of marriage existed. She sought leave to appeal out of time on the basis that the subsequent decision meant her conviction could not be sustained.
[97] Knight (at 587) summarised the test to be applied with regard to applications to extend time to appeal in the following manner:
The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interests of the individual appellant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject” (R v Hawkins [1997] 1 Cr App R 234 at p 239).
These considerations are of particular importance when a later decision of a superior Court shows that the decision from which it is sought to appeal was or might have been wrongly decided. As Somers J, speaking for the Court in Stowers v Auckland City Council (Court of Appeal, Wellington, CA 67/82, 2 September 1983), put the point: ‘In such circumstances the mere assertion of the exposed error without more is not enough. The applicant for leave must show special circumstances – circumstances that is to say which are particular to the case and which lead to the conclusion that justice requires that leave be given’ (p 4).
[98] The Court went on (at 588 ‑ 589) to outline specific considerations that should be taken into account when considering whether to grant an application for an extension of time to appeal:
Reflecting the policy underlying s 388, the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[99] Thus, according to Knight, factors of relevance to the balancing test include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
Summary of the current position in New Zealand on consent
[311] Under the 1961 Act, consent is preserved as a defence by s 20(1). We reiterate that, when we mention consent in this judgment, it encompasses honest belief in consent.
[312] The question of consent falls to be considered in accordance with the common law rules, apart from ss 61 and 61A dealing with surgical operations and situations covered by s 63, which provides that no person can consent to the (intentional) infliction of death upon him or herself including (probably) murder as defined in s 167(b), (c) and (d).
[313] The test in New Zealand at common law is not a results based test. If injury is not intended and there is no reckless disregard for the safety of others, then consent is a complete defence to any charge of assault, provided what occurred comes within the scope of the consent.
[314] Where injury was intended or where the perpetrator was reckless, consent is still a complete defence, provided what occurred comes within the scope of the consent, except in the situations set out below.
[315] Apart from sparring matches or playfights and organised matches conducted with a referee and according to established rules, consent is not a defence in relation to fighting. Those involved in sparring matches and playfights must not be acting in reckless disregard for the safety of others and must not intend to cause bodily injury for consent to be operative.
[316] Where grievous bodily harm is intended, public policy factors may require the Judge to withdraw the defence of consent from the jury. The same applies where a perpetrator acts in reckless disregard for the safety of others. When deciding whether consent should be withdrawn as a defence on public policy grounds in such situations the Judge should take into account the right to personal autonomy, the social utility (or otherwise) of the activity, the level of seriousness of the injury intended or risked, the level of risk of such injury, the rationality of any consent or belief in consent, and any other relevant factors in the particular case.
[317] Under these principles, consent must be left to the jury if there is an evidential basis for it, except where s 63 applies, in cases of fighting, and in cases where grievous bodily harm is intended or where the perpetrator acts in reckless disregard for the safety of others and the Judge withdraws the defence on public policy grounds. Any withdrawal of the defence will usually be a conditional withdrawal as it will be for the jury to decide whether the Crown has proved intent to inflict grievous bodily harm or that the perpetrator has acted in reckless disregard for the safety of others. In any particular case, there may also be other factual pre‑requisites to the withdrawal of consent as a defence which may need to be decided by the jury.
[318] Where consent is left to the jury, it will be for the jury to decide whether the Crown has proved both lack of consent (either explicit or implied) and lack of honest belief in consent or whether the Crown has proved that what happened does not come within the scope of any consent and that the perpetrator did not honestly believe that it did – see further at [308] ‑ [309] above.
Was consent available in this case?
[319] Paterson J, in his ruling, purported to follow the majority approach in Brown. Even though we have concluded that the majority approach in Brown is not the law in New Zealand, it is nevertheless worth considering whether Paterson J applied Brown correctly, if only for the purposes of the application for an extension of time to appeal – see at [109] - [111] above. We then analyse whether consent was available as a defence in terms of the correct test, as articulated by us at [311] ‑ [317] above. Finally, we discuss whether there was an evidential basis for the defence in this case.
What was the basis of Paterson J’s ruling?
[320] A summary of Paterson J’s ruling is set out at [58] - [65] above. As can be seen from that summary, Paterson J adopted a result-based test, making the categorical statement that it was not possible to consent to any act that causes death. It is unclear whether he envisaged that there were nevertheless exceptions to this rule, such as deaths occurring in the context of sporting events. If he did not, then he was clearly going beyond the majority approach in Brown.
[321] It seems likely, however, that Paterson J did envisage that there could be exceptions as he went on to consider if public policy demanded that deaths that occurred in the course of exorcisms should be excluded from the rule that consent was not a defence. In conducting this exercise, he was adopting the majority approach in Brown of consent not being a defence unless there are good public policy reasons for that to be the case. Paterson J concluded that there should be no exception for deaths that occur during the course of an exorcism which was likely to cause death or serious bodily harm.
Did Paterson J correctly apply the majority approach in Brown?
[322] Had the majority approach in Brown been the correct approach in New Zealand, in our view Paterson J would still have been in error. As indicated above at [320], if the Judge was imposing a results based test without exceptions, this clearly went beyond the majority’s approach in Brown. Even if Paterson J recognised (as he likely did) that there are exceptions to the principle that consent can be no defence where a death results, we still consider that he misapplied the majority’s approach in Brown. There is a clear right, under s 15 of BORA, to the manifestation of religious belief. The European equivalent of s 15 of BORA was not engaged in Brown and therefore was not considered either by the House of Lords or the European Court. The Brown decision was before the passing of the Human Rights Act 1998.
[323] Ritual circumcision was, however, mentioned by Lord Templeman in Brown as being an exception to the rule that consent did not operate where bodily harm was caused and religious flagellation was mentioned in a similar manner by Lord Mustill – see at [189] above. This means that, even on the majority’s approach in Brown, religious motivation takes at least circumcision and possibly flagellation into the category of cases where consent can be taken into account. Paterson J did not analyse why exorcisms should be in a different category from ritual circumcision and religious flagellation and it is difficult to see why they should be. Exorcisms are clearly a manifestation of religious belief.
[324] The United Kingdom’s Law Commission’s 1995 Consultation Paper specifically discussed the question of the link between consent and the right to manifest religious belief. It had received a response from Professor David Feldman who had opined that a parent’s consent to the ritual non-therapeutic circumcision of a male child may amount to a form of inhuman treatment contrary to the right contained in article 3 of the European Convention. With regard to religious flagellation, however, Professor Feldman predicted that any attempt to forbid consent would breach the right contained in article 9(1) to manifest religious belief and could not be justified under article 9(2) as a limitation that is prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others. There would need to be a “pressing social need sufficient to justify the restriction on such conduct.”
[325] Professor Feldman referred to the case of Kokkinakis v Greece (1994) 17 EHRR 397, where the European Court of Human Rights stated that religious freedom is one of the most vital elements that go to make up the identity of believers and of their conception of life and that it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The Court went on to say that the right to manifest one’s religious beliefs was bound up with the existence of religious convictions. See paras 3.25 and 3.26 of the 1995 Consultation Paper.
[326] Ms Markham submitted that exorcisms should not be an exception because of the possibility of the exploitation of children and the mentally ill. These are valid concerns but they would be met in most cases by the requirement for consent to be a true consent freely given. There will also be limits on the extent to which a parent could consent on a child’s behalf – see for example the reasoning in Re J (An Infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134. In any event, for the same reasons as Lord Mustill gave in Brown (see at [195] above), these concerns should not impact on the ability of fully informed adults to manifest their religious beliefs.
[327] Of more concern is the potential for religious fervour to cause the misinterpretation of signs of dissent as emanating from the devil rather than the victim. Again, however, this should not be enough to rule out consent in cases where there is truly informed consent by an adult. It may, however, be a good argument for inserting a requirement of reasonableness of belief in consent (as has been done, for example, for sexual violation). Whether there should be such a requirement is, in our view, however, a matter for the Legislature. It is not something the Courts could impose. We note, however, that the rationality of any belief in consent can be taken into account in deciding whether to remove consent on public policy grounds – see at [302] and [305] above.
[328] There would also be unintended consequences if exorcisms (and indeed other religious practices which may carry inherent risks such as total immersion baptism) did not come within the exceptions for the Brown rule. Blanket exclusion of consent where exorcisms are concerned would mean that even exorcisms conducted by practitioners like Mr Subritzky or Mr Dowie could lead to a prosecution for manslaughter if a death occurs (or even if mere bodily injury occurs if the limits set in Brown were accepted in New Zealand). We note that Mr Subritzky referred to the need to restrain people at times to stop them hurting themselves – see the quotation from his evidence at [46] above. It is not inconceivable that a death (or at least some bodily harm) could occur in such circumstances.
[329] Ms Markham’s response would probably be that any exception for exorcisms should be limited to “mainstream” exorcisms conducted in the manner set out by Mr Subritzky and Mr Dowie. This would pose difficult lines of demarcation. Even if such a demarcation were accepted, however, the factual issues as to which side of the line Mr Lee’s practice fell would have been for the jury so that Paterson J’s failure to leave consent to the jury would still have been in error. In our view, however, it would not be appropriate to differentiate between exorcisms in such a manner as it would not give adequate recognition to the right to manifest other than mainstream religious beliefs. After all, Mr Lee was a trained pastor, provisionally attached to the Assembly of God and the exorcism was conducted in the course of regular church meetings. A number of the other Church members also participated in the exorcism of Joanna and had had exorcisms conducted on them too. There were thus factors that could have allowed the jury to conclude that the exorcism of Joanna was not an “amateur” exorcism on a clearly dissenting subject, such as was in issue in Vollmer. See also Mika and Sagota [2000] NSWSC 852 and R v Canhoto (1999) 140 CCC (3d) 321.
[330] Ms Markham also submitted that the right to manifest religious belief must give way to the right to life – see s 8 of BORA. Quite clearly, it would be no defence to murder for an accused to say that his or her religion required ritual sacrifices. Section 63 of the Crimes Act would apply and s 15 of BORA would cede to s 8 in those circumstances. However, the s 8 right is not to be deprived of life. It does not stop a person risking his or her life or even deliberately putting an end to it. Indeed, s 11 of BORA gives a person the right to refuse medical treatment, a right that cannot be overridden by s 8. In the same way, a person’s right to manifest his or her religious beliefs by consenting to a religious practice cannot be overridden by s 8 of BORA, except where the public interest demands it.
[331] This means that, even had the majority approach in Brown applied in New Zealand, exorcism would have been a lawful activity and an exception to the rule that consent is irrelevant. If there was an evidential basis, therefore, consent should have been left to the jury in this case, even on the Brown approach.
[332] We are cognisant that there may still have been a question under the law as it stood at the time of Paterson J’s decision as to whether the level of risk of death or grievous bodily harm was so great that consent should not be operative, even with religious motivation – see at [270] - [271] above. The level of risk was never, however, addressed.
How should consent have been dealt with?
[333] In this case, the Crown accepted at trial that Mr Lee did not intend to kill Joanna and that he did not intend even to cause her bodily injury. It seems also to have been accepted that Mr Lee did not act with reckless disregard for Joanna’s safety. In terms of the principles discussed above at [317], this means that consent should have been left to the jury if there was an evidential basis for it.Ms Markham, in her submissions in this Court, has suggested, however, that Mr Lee did intend to cause Joanna harm (albeit as a means to an end) or that he was reckless as to whether harm would arise. Although this was not the Crown’s position at trial, there is nothing to stop the Crown putting its case in this manner on any retrial.
[334] If it does so and the jury considers that the Crown has not proved that Mr Lee intended to cause Joanna harm or that he was acting in reckless disregard for the safety of others, then consent, if not disproved by the Crown, would be a complete answer to the charge in relation to count one, provided there is a reasonable possibility that what occurred was within the scope of the consent (or honest belief in consent). This is because the test in New Zealand is not a results based test – see at [291] and [313] above.
[335] If the jury decide that the Crown has proved that Mr Lee intended to cause Joanna bodily harm but not grievous bodily harm then consent (if not disproved by the Crown) would be a complete answer. This again, of course, depends on the jury concluding that there was a reasonable possibility that what occurred was within the scope of the consent (or honest belief in consent).
[336] Whether and in what circumstances public policy factors require the defence to be withdrawn if the jury consider that the Crown has proved that Mr Lee intended to inflict grievous bodily harm or that Mr Lee acted recklessly will be for the trial judge to assess, after full argument, in accordance with the principles discussed in this judgment.
[337] We have considered the question of whether consent should be always treated as operative where the recklessness or the intentional infliction of grievous bodily harm is for religious purposes, in the same manner as consent is treated as operative for boxing (see at [303] above) and medical and surgical procedures - see ss 61 and 61A of the Crimes Act. We do not consider that it should be. This is an area where it would be legitimate to conclude that there may be “a pressing social need sufficient to justify the restriction on such conduct” – see at [324] above. The concerns articulated at [301] and [306] could apply to cases where grievous bodily harm is intended or where the perpetrator is reckless even in a religious context. The right to manifest religious belief will, however, be an important factor for the Judge to consider when deciding whether the defence should be withdrawn on public policy grounds – see further the discussion at [324] ‑ [330] above.
Was there an evidential basis for consent in this case?
[338] In our view, this is a case where the question is whether consent was withdrawn by Joanna rather than whether there was consent to the exorcism itself, as the evidential basis for consent to the exorcism itself is very strong. Lydia’s evidence was that, although Joanna had said that the exorcism was painful, there had been no reluctance on Joanna’s part to come forward for the exorcism at the Church or at the house – see the description of her evidence at [28] above. Joseph said that the same methods of exorcism were used at the Church as were used on him. His evidence was that this involved his breathing being restricted by Mr Lee’s hands around his neck. This means that there was a strong evidential basis for Joanna having consented to the continuation of the exorcism at the house in full knowledge of what was involved.
[339] Ms Markham submitted that Joanna’s consent was not a true consent freely given because she had been fasting and because of the strong influence Mr Lee had over her. As Ms Levy says, any such questions as to the reality of Joanna’s consent would be for the jury. We remark, however, that there is very little basis in the evidence for an assertion of non-voluntary consent. There was no evidence of any coercion or threats on the part of Mr Lee and no evidence of any mental incapacity or illness, on Joanna’s part, except Mr Lee’s indication that she was depressed over her illness. The description of Joanna as quiet, reserved and obedient appears only to be a function of her religious convictions which seem to have been shared by all Mr Lee’s followers, a number of whom also consented to exorcisms, apparently freely and some more than once.
[340] The issue of consent really comes to the fore just before Joanna died when she was held down by Mr Lee’s other followers. There were two possibilities put forward at trial by the Crown as to why Joanna was thrashing around just before she died. The first was that she was fighting to remove Mr Lee’s hands from her neck. If this were the case, clearly Joanna withdrew consent at that stage. There was evidential support for this theory, apart from Joanna’s actions, in that Joseph’s impression was that this was what Joanna was doing – see at [20] above. We note, however, that, contrary to Ms Markham’s submission, Joanna does not appear to have been saying “No, no” in the last stages of the exorcism. That seems to have occurred earlier in the exorcism – see at [29] above.
[341] The second explanation put forward by the Crown at trial was that Joanna was having an epileptic fit just before her death. Again there was evidential support in that Timothy said that Joanna had a fit at the house – see at [25] above. See also the pathologist’s evidence at [41] above. If that were the case, then Joanna, being effectively unconscious, was obviously incapable of giving her continued consent to the exorcism.
[342] There is, however, a third possibility – that Joanna was thrashing around because of the effects of the exorcism itself. If one does not share the belief structure of Mr Lee and his followers, one would discount the theory of demonic possession but there nevertheless remains the possibility that Joanna’s actions could be explained by her belief in the presence and power of demons. After all, the evidence was that Mr Lee had conversed with the “demons” during the exorcism ‑ see at [15] and [24] above. In assessing this third possibility, the jury would have to consider whether there was a reasonable possibility that Joanna had consented to the continuation of the exorcism through any period when the “demons” were possessing her. Timothy’s evidence was that it was necessary to hold Joanna down in order to stop the demon killing her – see at [25] above. The jury would be entitled to infer that Joanna shared this belief. There was also the evidence of the exorcism continuing after Mr Lee had spoken to the “demons” in the course of the exorcism.
[343] The other question is whether there was an evidential basis for Mr Lee having an honest belief in Joanna’s consent. This evidential basis does not, of course, have to come from Mr Lee himself. One of the important indications would be the actions of Joanna herself and her willingness to come forward both at the Church and at the house for the continuation of the exorcism. Also it is to be noted that, according to Mr Lee’s evidence, she had come to New Zealand specifically to be with his Church and be cured. These factors could well have led Mr Lee to assume Joanna was consenting even if she were not. There is also the evidence of Timothy, Joseph and Lydia as to the conversations that Mr Lee had with the demons during the exorcism. This could allow the jury to infer that it was a reasonable possibility that Mr Lee believed that it was the demons who were struggling against the exorcism at the last and not Joanna. The belief in demonic possession may, in Mr Lee’s mind, have been rendered more likely by the very strength of Joanna’s movements just before her death. Joseph indicated that it was hard to hold Joanna’s legs, even though Mr Lee was sitting on her chest and Grace on the top of her legs at the time – see at [20] above.
Conclusion
[344] We conclude, therefore, that consent was available in this case as a matter of law, subject to a possible exclusion on public policy grounds if Mr Lee was reckless or intended to cause Joanna grievous bodily harm. There was an ample evidential basis, both with regard to consent and honest belief in consent, for the defence to have been left with the jury. The failure to do so was thus clearly an error of law.
Other issues
[345] We make some brief comments on some other aspects of the trial. The first relates to count two. The Crown case with regard to count two appears to have been that there was a major departure because Mr Lee’s methods of exorcism were not in accordance with the “proper” method of conducting exorcisms as set out by Mr Subritzky and Mr Dowie. We do not consider this to have been the correct approach. In accordance with the right to hold and manifest different religious beliefs, we consider that any test must accommodate those who believe that demons have a more corporeal form than do Mr Subritzky and Mr Dowie. It was thus not appropriate to take the Subritzky/Dowie method of exorcism as the “proper” method.
[346] Still on the topic of count two, Ms Levy stated that consent was not relevant to that count – see at [144] above. It is true that consent is not a defence but it may be taken into account when the jury is assessing whether there has been a major departure – see R v Cato [1976] 1 All ER 260 at 266-267. See also Mwai, discussed at [283] above. For these purposes, honest but unreasonable belief in consent would not, however, be relevant. The same principles will apply when the jury is assessing reasonableness where there has been recklessness (see at [159] above), even if consent has been withdrawn as a defence on public policy grounds. Where consent is not withdrawn the issue of reasonableness will be subsumed in the consideration of consent, which if not disproved by the Crown, will be a complete defence.
[347] Turning to the summing up, the next issue relates to the evidence of other exorcisms performed on other followers of Mr Lee. This evidence was in a sense similar fact evidence and we consider that the jury should have been given help as to the proper use to which it could be put. This was not done.
[348] Finally, notwithstanding Mr Lee’s right to defend himself, the absence of counsel placed a particular responsibility on the Judge to ensure that the jury was adequately directed in relation to all relevant facts ‑ see R v Epiha CA341/04 14 June 2005 at [25] – [26]. Paterson J, when summing up on the facts in this case, summarised what was said by Crown counsel and then attempted to summarise Mr Lee’s case from his address to the jury and from his police statements. The Judge did point to some items of evidence that may have supported Mr Lee’s assertion that it was the devil that had killed Joanna. He did not, however, undertake any independent analysis of the evidence and relate it to the issues that the jury had to decide – for example as to the issue of causation. In our view, merely summarising what was said by Crown counsel and by Mr Lee did not in this case give sufficient guidance to the jury.
Result
[349] For the reasons set out above, we grant an extension of time for Mr Lee to file his appeal. We allow that appeal, quash the conviction and order a retrial.
Solicitors:
Crown Law Office, Wellington
0