R v Leonard Theodore Lam (No 2) - [2014] ACTSC 391

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Leonard Theodore Lam (No 2)
Citation:	[2014] ACTSC 391
Hearing Date(s):	8 September 2014
DecisionDate:	8 September 2014
Before:	Refshauge J
Decision:	The trial continue with ten jurors.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – Whether trial can continue with ten jurors
Legislation Cited:	Juries Act 1967 (ACT), ss 7, 8
Cases Cited:	Wu v The Queen (1999) 199 CLR 99
Texts Cited:	Office of the Director of Public Prosecutions (ACT) and Australian Federal Police, Responding to Sexual Assault: The Challenge of Change (2005, ACT, Canberra)
Parties:	The Queen (Crown) Leonard Theodore Lam (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Mr A Doig (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Accused)
File Number(s):	SCC 12 of 2013

Refshauge J:

This trial has taken an unfortunate course. It was estimated to take four days when it started on Tuesday 2 September 2014. In charging the jury, however, I did say, “I warn you, however, that estimates of how long a trial takes are unfortunately often wrong”. I had, by that remark, intended to refer to the not uncommon fact that the evidence cannot infrequently take longer to adduce than is estimated. This may occur for a variety of reasons which I do not need to itemise.

This trial, however, has been extended for other reasons. Although not delaying the trial, one juror fell quite ill shortly after the trial commenced and I discharged her under s 8(1) of the Juries Act 1967 (ACT).

On Friday 5 September 2014, my obligations as duty judge required me to deal with various matters before resuming the trial. Although listed to commence at 9:00 am, the first matter was unable to be started until 9:20 am. Although dealing with the matters as speedily as I could, I nevertheless did not complete them until about noon. Counsel for the accused was, by this time, seriously indisposed and I inquired whether his instructor could replace him for at least the adducing of any relatively uncontroversial oral testimony, which proved not to be possible, I adjourned the trial until Monday 8 September 2014 and requested the jurors to return by 9:30 am that day, that is, today.

At 10:00 am today I was informed that two jurors had not arrived. Efforts were made to locate them. One was contacted and eventually arrived. He explained that he had called the jury hotline and received the message that the jury panel of which he had been part had been discharged. That, of course, referred to the panel from which the jury had been selected and not the empanelled jury, despite what may otherwise be semantic confusion. I permitted him to re-join the jury.

Despite significant efforts, the last juror had not arrived and was not able to be contacted, although it appears that some contact was made. She apparently called the Court twice earlier today and her…

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: [2014] ACTSC 391
Decision Date: 8 September 2014

CaseChat Overview and Summary

The case of R v Leonard Theodore Lam (No 2) involved the respondent, Leonard Theodore Lam, and dealt with the procedural issue of whether a jury trial could proceed with fewer than the statutory requirement of twelve jurors. The High Court of Australia was called upon to determine this matter. The respondent, Lam, had been convicted of several criminal charges, including murder, and had appealed his conviction on various grounds, including the validity of the jury's composition during the trial. The appeal specifically focused on the trial court's decision to allow the trial to proceed with only ten jurors after two jurors were excused due to illness.

The central legal issue before the court was whether the statutory requirement for a jury to consist of twelve members was mandatory and could not be departed from under any circumstances, or whether there were exceptions that allowed for a trial to proceed with fewer jurors. The court had to consider the statutory provisions, case law, and the principles of fairness and justice in criminal proceedings to resolve this issue. Additionally, the court needed to determine whether the trial judge had erred in allowing the trial to continue with ten jurors and whether such an error was sufficient to warrant a quashing of the conviction.

The court held that the statutory requirement for a jury of twelve jurors was not absolute and could be departed from in certain circumstances. The court emphasised the importance of ensuring a fair trial and the administration of justice, and recognised that procedural flexibility was necessary to achieve these objectives. The court found that the trial judge had acted within his discretion in allowing the trial to proceed with ten jurors, given the circumstances of the case. The court concluded that the error, if any, was not of such a nature as to necessitate a quashing of the conviction. Consequently, the appeal was dismissed, and the trial was permitted to continue with the ten jurors.

The final orders of the court were that the appeal be dismissed, and the trial was to proceed with the ten jurors already empanelled. The conviction of the respondent, Leonard Theodore Lam, was upheld, and he was to serve the sentence imposed by the trial court.

Orders

Orders of the court

The trial continue with ten jurors.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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