R v Lee Ca437/04 - [2006] NZCA 60

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NZCA 60
Decision Date: 7 April 2006

CaseChat Overview and Summary

In R v Lee, the Court of Appeal of New Zealand granted Mr. Lee's application for an extension of time to appeal his conviction for manslaughter. The Court found that the appeal was allowable on the grounds of errors in the trial judge's instructions to the jury regarding consent and objective dangerousness. The Court held that the trial judge's ruling on consent was in error as it did not account for the right to manifest religious beliefs as protected by the New Zealand Bill of Rights Act 1990. Furthermore, the Court found that the trial judge failed to instruct the jury that an assault must be objectively dangerous to form the basis of a manslaughter conviction. The Court quashed Mr. Lee's conviction and ordered a retrial, noting that the errors in the trial were of the Crown's own making and could not be overridden by the public interest in finality of litigation. The Court also made some comments on other aspects of the trial, including the proper approach to assessing the major departure in count two and the need for better direction to the jury on the evidence of other exorcisms.

Orders