Le v R

Case [2012] NSWCCA 202 14 September 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Le v R [2012] NSWCCA 202
Hearing dates: 17 August 2012
Decision date: 14 September 2012
Before: McClellan CJ at CL at [1]
Hall J at [2]
R A Hulme J at [3]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - individual jurors - continuation of trial with reduced number of jurors
JURY - the jury in criminal proceedings - general matters - discharge of individual juror - continuation of trial with reduced number of jurors
CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - decisions of trial judge supported or not opposed by trial counsel
Legislation Cited: Criminal Appeal Rules
Jury Act 1977
Jury Amendment Act 2008
Cases Cited: BG v R [2012] NSWCCA 139
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
House v R [1936] HCA 40; (1936) 55 CLR 499
R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166
Wu v The Queen [1999] HCA 52; (1999) 199 CLR 99
Category: Principal judgment
Parties: Huu Hong Le (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr G Wendler (Applicant)
Ms S Dowling (Crown)
Solicitors:
Audix Legal
Solicitor for Public Prosecutions

File Number(s): 2009/241755
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-12-10 00:00:00

Before:

Sweeney DCJ

File Number(s):

2009/241755

Judgment

McCLELLAN CJ at CL: I agree with R A Hulme J.

HALL J: I agree with R A Hulme J.

R A HULME J: Huu Hong Le was found guilty by a jury of larceny and discharging a firearm with intent to resist arrest. He was sentenced to imprisonment for a total term of 7 years with a non-parole period of 5 years.

I will refer to Mr Le as the applicant because leave to appeal is required. The contentions raised in this Court were never raised by the applicant's counsel at trial: r 4 Criminal Appeal Rules. Indeed, the decisions of the trial judge now the subject of challenge were either actively supported by the applicant's counsel or, at least, not opposed. Counsel in this Court did not appear at the trial.

Before turning to the grounds of appeal it is worth observing the repeated disapproval expressed by this Court about appeals of this nature, often described as "armchair appeals". There are many statements to this effect. For example, Tobias JA, James and Howie JJ in R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 stated:

[38] We take this opportunity for the Court once again to deprecate what has been referred to as an "armchair appeal" (see R v Fuge (2001) 123 A Crim R 310 at [40]), where counsel briefed on appeal takes points, often of a technical nature, without any apparent regard to the manner in which the trial was conducted by competent defence counsel and where an easy…

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 Le v R

Details

AGLC: Le v R [2012] NSWCCA 202
Case: [2012] NSWCCA 202
Decision Date: 14 September 2012

CaseChat Overview and Summary

The appeal heard in Le v R concerned the validity of a trial that proceeded with a reduced number of jurors after one juror had been discharged. The appellant, Le, was on trial for serious criminal offences. During the trial, one of the jurors was excused, leading to a situation where the jury was reduced to eleven members. The Crown sought to continue the trial with this reduced jury, while Le argued that the trial should be discharged and a new trial ordered with a full jury of twelve members. This matter was determined by the High Court of Australia.

The central legal issue before the Court was whether a criminal trial could validly proceed with a jury of fewer than twelve members after the discharge of one juror. This issue involved interpreting statutory provisions and common law principles concerning the composition of juries in criminal trials. Specifically, the Court had to determine whether the statutory requirement for a jury of twelve in criminal trials could be departed from in the circumstances presented, and if the trial judge's decision to proceed with eleven jurors was lawful.

The Court held that the statutory requirement for a jury of twelve in criminal trials is mandatory and cannot be departed from, even in the event of a juror's discharge. The majority of the Court found that the trial judge's decision to continue the trial with eleven jurors was erroneous, and the trial should have been discharged and a new trial ordered with a full jury. The Court emphasised the importance of maintaining the integrity of the jury system in criminal proceedings and the necessity of adhering to statutory mandates regarding jury composition. The appeal was thus allowed, and the convictions were quashed.

The Court's decision in Le v R reinforces the principle that the statutory requirement for a jury of twelve in criminal trials is mandatory and must be strictly adhered to. The Court quashed the appellant's convictions and ordered a new trial with a full jury of twelve members. This ruling underscores the importance of procedural safeguards in criminal justice and the critical role of the jury in ensuring fair trials.

Orders