Lam v R [2024] NSWCCA 6

Court of Criminal Appeal Supreme Court New South Wales 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in 1978 — Whether a female capable of committing the offence of indecent assault upon a male person under the now-repealed s 81 of Crimes Act 1900 (NSW) Legislation Cited: Act for the Punishment of the Vice of Buggery, 25 Hen 8, c 6 Act for the Punishment of the Vice of Sodomy, 5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 v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2 Connelly v Director of Public Prosecutions [1964] AC 1254 Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 Crowe v Graham (1968) 121 CLR 375; [1968] HCA 6 Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241 JAD v R [2012] NSWCCA 73 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v B and L (1954) 71 WN (NSW) 138 R v Court [1989] AC 28 R v Eagleton (1855) Dears 515 R v Edwards [1956] QWN 16 R v Ireland [1998] AC 147 R v Jellyman (1838) 8 C & P 604 R v Keogh (1878) 1 SCR NS 136 R v Lavender (2005) 222 CLR 67; [2005] HCA 37 R v Linneker [1906] 2 KB 99 R v McDonald (1878) 1 SCR NS (NSW) 173 R v Montila [2004] 1 WLR 3141 R v Plummer (Court of Criminal Appeal (NSW), 12 July 1989, unrep) R v Robinson [1915] 2 KB 342 R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198 R v Valence (1959) 59 SR (NSW) 138 Reg v Baker (Court of Common Pleas, 31 July and 3 August 1875, unrep) Riddle v The King (1911) 12 CLR 622; [1911] HCA 33 Skinner v The King (1913) 16 CLR 336; [1913] HCA 32 The King v Hare [1934] 1 KB 354 The King v Wiseman (1727) Fortescue 91 The Queen v Allen (1849) 1 Den 364 Union Steamship Company of New Zealand Ltd v Melbourne Harbour Trust Commissioners (1884) 9 App Cas 365 Texts Cited: CS Greaves, Lord Campbell's Acts, for the Further Improving the Administration of Criminal Justice, and the Better Prevention of Offences (1851, W. Benning and Co) CS Greaves, The Criminal Law Consolidation and Amendment Acts of the 24 & 25 Vict. with Notes and Observations (1861, Stevens & Sons) DW Logan, "The King v Hare" (1934) 50 Law Quarterly Review (1934) 168 E Coke, The Third Part of the Institutes of the Laws of England (2008, William S. Hein & Co) G Williams, Textbook of Criminal Law (2nd ed, 1983, Stevens & Sons) JF Stephen, A Digest of the Criminal Law (Crimes and Punishments) (2nd ed, 1883, Macmillan and Co) JW Cecil Turner, Russell on Crimes, vol 1 (11th ed, 1958, Stevens & Sons) Law Reform Commission, "First Report of the Commissioners of the Law Reform Commission, together with a Draft Bill to Consolidate and Amend in certain respects the Criminal Law" (1871) 19.1 Journal of the Legislative Council of NSW 361 Lord Hailsham (ed), Halsbury's Laws of England, vol IX (2nd ed, 1933, Butterworth & Co) M Hale, Historia Placitorum Coronae, vol 1 (1800, E Rider) M Kirby, "The sodomy offence: England's least lovely criminal law export?" (2011) 1 Journal of Commonwealth Criminal Law 61 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3229-3230 New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 November 1882 at 1073 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 May 1984 at 574 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 May 1984 at 698, 702 PFG Rook and R Ward, Rook & Ward on Sexual Offences (2nd ed, 1997, Sweet & Maxwell) PFG Rook and R Ward, Sexual Offences (1st ed, 1990, Waterlow Publishers) R Watson and H Purnell, Criminal Law in New South Wales, vol 1 (1971, The Law Book Company Limited) W Blackstone, Commentaries on the Laws of England, vol 4 (17th ed, 1830, Richard Taylor) W Russell, Treatise on Crimes and Misdemeanours (4th ed, 1865, Stevens & Sons) Category: Principal judgment Parties: Helga Lam (Applicant) Rex (Respondent) Representation: Counsel: