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Lam v The King

Lam v The King

Case [2024] NSWCCA 6 12 February 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lam v R [2024] NSWCCA 6
Hearing dates: 20 November 2023
Date of orders: 12 February 2024
Decision date: 12 February 2024
Before: Meagher JA at [1];
Garling J at [132];
Weinstein J at [160]
Decision:
(1) Grant leave to the applicant Ms Lam under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from the orders made by Girdham SC DCJ on 18 July 2023.
(2) Allow the applicant’s appeal filed on 20 July 2023 and set aside the orders of Girdham SC DCJ made on 18 July 2023:
(a) Refusing to uphold the applicant’s demurrer;
(b) Refusing to quash the indictment dated 1 June 2023; and
(c) Refusing to order a permanent stay of the proceedings.
(3) Order that the applicant’s demurrer dated 12 July 2023 be upheld on the basis that the accused is a female and s 81 of the Crimes Act 1900 (NSW) was applicable only to conduct constituting an “indecent assault” committed by a male upon a male.
(4) Quash the indictment dated 1 June 2023.

Catchwords:
CRIME — Appeal under s 5F Criminal Appeal Act 1912 (NSW) — Sexual offences — Historical indecent assaults — Where female teacher allegedly engaged in sexual activities with male teenage students in 1978 — Whether a female capable of committing the offence of indecent assault upon a male person under the now-repealed s 81 of Crimes Act 1900 (NSW)

Legislation Cited:
Act for the Punishment of the Vice of Buggery, 25 Hen 8, c 6
Act for the Punishment of the Vice of Sodomy, 5 Eliz 1, c 17
Crimes (Amendment) Act 1924 (NSW)
Crimes (Amendment) Act 1955 (NSW), s 3
Crimes (Amendment) Act 1984 (NSW)
Crimes (Girls’ Protection) Act 1910 (NSW), ss 2, 3
Crimes Act 1900 (NSW), ss 18, 63, 65, 67, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 81A, 81B, 379
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Law Act 1827, 7 & 8 Geo 4, c 28, s 14
Criminal Law Amendment Act 1883 (NSW), ss 39, 40, 41, 42, 43, 44, 59, 60, 319
Criminal Law Amendment Act 1885, 48 & 49 Vict, c 69
Criminal Procedure Act 1851, 14 & 15 Vict, c 100, ss 9, 29
Criminal Procedure Act 1986 (NSW), ss 11, 17, 20
Criminal Statutes Repeal Act 1861, 24 & 25 Vict, c 95
Interpretation Act 1987 (NSW), ss 34, 35
Offences Against the Person (Ireland) 1829, 10 Geo 4, c 34, s 18
Offences Against the Person Act 1828, 9 Geo 4, c 31, ss 15, 16, 18, 25
Offences Against the Person Act 1837, 7 Wm 4 & 1 Vict, c 85, ss 11,
Offences Against the Person Act 1861, 24 & 25 Vict, c 100, ss 18, 20, 47, 48, 49, 50, 51, 52, 61, 62, 63

Cases Cited:
Alcan (NT) Alumina Pty Ltd…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lam v The King

Details

AGLC: Lam v The King [2024] NSWCCA 6
Case: [2024] NSWCCA 6
Decision Date: 12 February 2024

CaseChat Overview and Summary

The appellant, Lam, was convicted for historical indecent assaults on male teenage students in 1978, when she was a female teacher. The case was heard in the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 (NSW). The primary legal issue was whether a female could be guilty of indecent assault upon a male under section 81 of the Crimes Act 1900 (NSW), which has since been repealed. The appeal centred on the interpretation and application of this historical statutory provision.

The court examined the plain language of the statute, noting that it did not explicitly exclude females from its scope. The prosecution argued that the statutory language should be interpreted in a gender-neutral manner, while the defence contended that the statute should be read in the context of its time, which traditionally viewed indecent assault as a male-on-female crime. The court found that the statute did not preclude females from committing the offence and thus the appellant was capable of being found guilty under the law as it stood in 1978.

In affirming the conviction, the court held that the statutory language did not discriminate based on gender and that it was reasonable to interpret the statute as applicable to both males and females. The appeal was dismissed, and the conviction was upheld. The court's decision underscored the importance of interpreting statutes in a manner that reflects contemporary understandings of equality and fairness, while also considering the historical context of the legislation.

Orders