The amazing cross-examination of forensic psychiatrist Dr Yvette Kelly during the murder trial of Jasmine (Hakyung) Lee, whose defence for the murder of her two children was one of insanity, unwound her before it even began.
I was chatting with Kelly outside courtroom 6 in the High Court at Auckland before she was due to give evidence. She asked if there was a decent cafe within easy walking distance. Ask a bore, and he will answer at length. I explained that the options were fairly limited. The lovely faux-old stone castle of the High Court is isolated on a rise in the city’s most English district, between downtown and the Tory crescents of Parnell. Court cafe QCs does a nice sausage roll. For something fancier, I saw trial judge Justice Geoffrey Venning hotfooting it up Waterloo Quadrant to the Tory dining rooms of the Northern Club. That same week, I ran into the trial’s prosecutors and police detectives chowing lunch at a cheap Thai joint around the corner. Anyway, I recommended Kelly walk across the street to the cafe at Old Government House, a gracious wooden pile set beside a lawn.
“Oh,” she said, “but I couldn’t eat anything. I think I’d throw it up.”
She was very nervous. That was an unusual admission for an expert witness. Still, there was a lot riding on her evidence. Kelly was the only witness called in the defence of Lee, who admitted killing her two children and putting their bagged bodies inside suitcases, which she dumped at the back of a storage locker. A mother who killed her own children and then did that to their remains: it did not seem unreasonable to assume she was completely mad.
Lee remained frozen in a posture of some infinite and unreachable depression throughout her three-week trial in September. She did not raise her head. It hung low. No one saw her eyes. No one saw her move, either. The silence that surrounded her, the chasm that separated her from the rest of the human race, belonged to an even deeper void she stepped into when she killed daughter Yuna, 8, and son Minu, 6, and consigned their bodies to the mausoleum of the storage locker in Papatoetoe in the winter of 2018. They lay there slowly mummifying for four years.
Lee fled for South Korea with about $185,000 from her husband’s life insurance payout. Eventually, she ran out of money and her monthly payments to the storage unit stopped. The contents were put up for auction on TradeMe. They sold for $401. The buyer opened up one of the suitcases on his driveway on a Saturday morning in August 2022 and called police.
There was nothing especially convincing in prosecutor Natalie Walker’s long opening address for the crown to suggest Lee was of sane mind. Court-appointed lawyer Lorraine Smith, acting for Lee, gave a more powerful opening in less than five minutes. Lee’s husband had died of cancer; Lee could not cope, she said. Lee decided to kill herself and the children with an overdose of the sedative Nortriptyline, she said.
“She believed it was best they all die together. She gave some of the Nortriptyline to the children and then to herself but she miscalculated and woke up and saw her children were dead. She killed her children but she should be found not guilty. She was insane, and this should be the verdict.”
Three weeks later the jury rejected the argument quickly and unanimously. They found Lee guilty. They scarcely had any other choice. As signalled in part one last week, a twist was revealed at the very end of the crown case. Evidence was produced that suggested Lee had planned the killings – that they were premeditated. It was a horrifying prospect and the revelation seemed to change the temperature in the small confines of courtroom 6. It became a cold and bitter place.
Those who are mad are seen as very interesting and very mysterious, as special cases, as souls in torment. But Lee no longer took on the dark tragic shape of a maniac. A spell had been broken; it was possible just to see her as a unique kind of brute.
Off to the races
It was into this radically new environment that Dr Yvette Kelly nervously took her seat in the witness box. Even in her evidence-in-chief, to defence lawyer Chris Wilkinson-Smith, Kelly seemed kind of … off. She sometimes spoke very loudly. She gave sudden and rather inappropriate bursts of laughter. There was a shrillness to her, an anxiety that now and then resembled arrogance.
She was off to the races right from the start, when she was asked about her credentials. “I’d like to mention something before that, which is that I have a psychology degree as well. So I have a bachelors of psychology and then I went on to start a master’s degree but decided to make the switch into medicine, so I have a medical degree, and then I went on to get my fellowship, so that’s my specialty qualification in mental health, so that’s what makes me a psychiatrist and then I additionally have an advanced certificate in forensic psychiatry.”
“Okay,” said Wilkinson-Smith. He travelled home to Whanganui each weekend of the trial. He has a likeable manner and a boyish face. Courtroom lore has it that in the seven cases his wife Michele (now a High Court judge) defended with Lorraine Smith, the dynamic duo never lost a verdict.
He did not have a prayer of continuing the tradition once Walker’s cross-examination began, but he guided the sometimes-wayward Kelly towards a strong conclusion during her evidence in chief. Reading from her diagnostic formulation based on her interviews with Lee, she told the jury, “She felt the morally right thing to do was to kill the children before she suicided herself, believing the children would be reunited with their father in death.”
Wilkinson-Smith: “And so finally, what’s your overall conclusion?”
Kelly: “I am providing an opinion that Ms Lee meets criteria to be found not criminally responsible on account of insanity.”
Wilkinson-Smith: “All right.”
Standby counsel
There was a touching moment after the verdict when Justice Venning thanked the two defence lawyers for their efforts. It had been a long ride. Smith was there from the very beginning: she first met Jasmine Lee in November 2022 on the day Lee was extradited back to New Zealand from South Korea (she was arrested in a midnight raid). Just before the trial, though, Lee made it known she wished to represent herself. In fact, she made no contribution to the trial other than signing occasional documents. Smith and Wilkinson-Smith were elected as standby counsel. “You could not have done a better job,” the judge told them.
I asked Wilkinson-Smith one morning in courtroom 6, “Does your client actually talk to you?”
“Yes.”
“Does she give you any instructions?”
“That question’s sailing a bit close to the wind.”
I think it’s fair to assume she did not give them any instructions.
Walker’s first question in cross-examining Kelly was, “Good afternoon Dr Kelly, how are you?
She replied, “Well, could be better, yeah.”
Things never really recovered. It was a master class in cross.
I have seen plenty of really good cross-exams. Probably the two best I’d observed before the Lee trial were last year at the Polkinghorne trial, when the reliably merciless Ron Mansfield filleted forensic pathologist Dr Kilak Kesha, and in 2015 at the Employment Court, when Peter Churchman KC took on Guy Hallwright, an investment analyst wanting his job back at Forsyth Barr after they dismissed him for reputational damage (he had attracted very bad press for running over a Korean man in his Saab), and burnt him to ashes. Both were aggressive crosses. Both were mean; two men taking out the trash.
Walker did not go that way with Kelly. Her cross was passive, an exercise in politesse, no raised voice, no sarcasm, no scorn. This was her last trial as crown solicitor for Manukau and she went out with style and grace – a smiling assassin killing with kindness. In response, Kelly fell to pieces.
There was a quick dismantling of Kelly’s experience, delivered almost as a postscript. “Dr Kelly, I omitted to ask you at the start of your evidence when we were talking about your qualifications and your busy clinical practice at the Mason Clinic, how many times have you given evidence in the High Court in a contested insanity homicide case such as this?”
Kelly: “None in a contested insanity homicide case, no.”
There was a hurtful comment on press coverage, which I will try not to take personally but which reflected badly on Kelly when she ran into difficulty trying to remember what witness statements she had been given.
Walker: “Can you recall the witnesses whose evidence you were given or not?”
Kelly: “Ms Lee’s mother I was definitely given. I also followed it a little in the media.”
Walker: “An expert who has agreed to abide by the code of conduct usually wouldn’t place weight on anything you read in the media, Dr Kelly.”
There was a further reprimand on another occasion, when Kelly was flustered and confused, trying to remember the evidence.
Kelly: “I can’t give you everything blow by blow, okay?”
Walker: “Don’t you need to, doctor? Aren’t we entitled to expect that level of rigour from you?”
Some of the cross was circling the wagons, scratching at the door, unpicking the stitches, and other metaphors for Walker’s slow and deliberate approach towards asking about the most important things.
There were numerous profound issues to discuss. There was the extent of Jasmine Lee’s supposed failure to cope with life after her husband died. There was the nature of her own apparent suicide attempt when she killed the children. And most crucially there was her state of mind when she took their lives.
Walker moved in and laid waste, nicely.To watch her ramp up the cross-exam was to experience Kelly finding out about the premeditation in real time. It was actually kind of excruciating to watch. She had seen the evidence but not joined the dots. Walker helpfully set them out.
She showed Kelly a timestamp on the children’s PlayStation that suggested they were playing it at 12.07pm on June 27, 2018, the likeliest date of their deaths.
Walker: “If the jury finds that the children were still alive at that time in order to operate the PlayStation console, I’m going to invite your comment on what happens next. At 12.07pm Ms Lee is in the Manukau City Post Shop buying an envelope for $3.50.”
Dr Kelly, pawing at the document: “At what time, sorry?”
“12.07pm.”
“So, the same time as the PlayStation?”
“Yes.”
“Okay.”
“So it would suggest that she’s left the children at home and she’s at the Manukau Mall.”
“Yes.”
“Now the documents you’ve just looked at, Dr Kelly, I suggest to you show that at the time she went to the Justice of the Peace, went to the Post Office, got the courier, she was thinking about changing her name before she’d even killed her children, hadn’t she?”
“Yes, I accept that.”
“The jury have been shown a receipt from a purchase Ms Lee made at a Mitre 10 store in Manukau, which is not far from the mall, on the same date, at 12.45pm.”
“Yes.”
“She bought rubbish bags and duct tape. Do you recall there was duct tape used to conceal the bags?”
“Yes.”
“And so this also looks a little, doesn’t it, like she’s gone to Mitre 10, having already submitted her application to change her name, and she’s taken some packaging home, including duct tape and black bags?”
“Yes.”
“I’m going to suggest that after Ms Lee returned home that afternoon she gave her children Nortriptyline and took their lives. Knowing that timeline, does that change your conclusion about her labouring from psychosis at the time?”
“It doesn’t change my opinion about her suffering from a major depressive episode, but it does change my thinking about how those events happened.”
A name change and a hair appointment
How was it that Kelly hadn’t realised the significance of the timeline evidence? Everyone else in courtroom 6 knew: the jury, the media and the crown’s expert witness, Dr Erik Monasterio, a forensic psychiatrist who had interviewed Jasmine Lee and did not think she met the criteria for insanity.
Kelly’s late realisation was challenged when Walker asked her of Lee’s errands to change her name and buy rubbish bags. “Isn’t it all entirely consistent with her wanting to start a new life without the children?”
“I accept that that could be the case, yes.”
“It’s more likely, isn’t it?”
“I think it’s 50-50 actually, but I am more concerned about the name change having happened at the same time as, you know, when the children were alive. But I only got this information two days ago.”
“Just to be clear, the name change application you got two weeks ago, when the other experts received it – is that fair? I thought you just said you got it two days ago?”
“Perhaps it was only that I actually managed to look at it two days ago …”
As well as questioning Kelly on Lee’s actions before the children were killed, she asked her about Lee’s actions afterwards, such as a $900 hair appointment. Kelly answered, incredibly, “When you feel like absolute crap because your kids are dead, I don’t think that that means that you won’t try and make yourself look nice to cheer yourself up.”
“You just said she would have been feeling, to quote you, ‘crap’, because of the deaths of her children. What makes you say that any of this is consistent with her feeling crap rather than just having a new life?”
“I don’t think it’s uncommon for people, particularly if they’ve got a background of getting their self-esteem from their personal appearance, to seek improving that at a time when they are of low self-esteem.”
“Well, there’s nothing that would indicate low self-esteem is there?”
“Yes!,” Dr Kelly yelled, and laughed. “Why do you think the beauty industry exists?”
“Well, isn’t it all entirely consistent,” asked Walker, her voice remaining as level and quiet as ever, “with her wanting to start a new life without the children?”
“I accept that that could be the case, yes.”
The defence ship was listing. It sank in the last few minutes of the best cross-examination I have ever seen.
Walker: “Now, knowing these very concerted steps that she took from the 27th of June to the 30th, you surely can’t maintain your opinion that at this time she was labouring under a disease of the mind that prevented her from knowing what she was doing was morally wrong?”
Kelly stammered: “I agree that – I think that – I don’t – I still believe that she had a depression at that time, but I accept that she knew the moral wrongfulness of that.”
“Thank you. So, you accept she knew that it was morally wrong to kill her children?”
“I think the planning around it was concerning. I didn’t know the timing of the PlayStation stuff.”
“You still maintain she had depression at the time.”
“Yes.”
Walker’s next question was her last. She drew it out, took literary pleasure in it – it was more like a beautiful closing monologue than a query: “The timing certainly makes it not look like some altruistic act to save the children, which is really the effect of her account to you – that she tried to kill herself and killed them to save them the horror of finding her – but, instead, a selfish act to free herself from the burden of parenting on her own. Can you comment on that?”
“I can’t comment on what her rationale was,” said Kelly – closing her own account with a flourish except it was a flourish that contradicted her earlier confident assertion of Lee’s insanity – “but it is certainly damning.”
Sanity and insanity are not binary concepts. It’s not a case of either mad or bad. It was in the awful overlap, ruthlessness and depression narrowing to a point of no return, that Jasmine Lee killed her Yun and Minu, and tenderly lay their bodies in the fetal position inside two orange suitcases.
Four years later, when she was located in South Korea, the first question her mother asked her was, “Where are the children?” She answered, “I don’t have children.” It was an accurate reply.