Citation: R v Lieu [2018] NSWSC 484
Court: Supreme Court of New South Wales
Date: 28 March 2018
Judge: Campbell J
Background
The accused was charged with murdering a man at Campsie on 23 November 2016. The trial was listed to begin on 16 April 2018, with a jury, before Campbell J. At a directions hearing in March 2018, the accused's counsel indicated that the sole issue at trial would be whether the accused was not guilty of murder by reason of mental illness.
Both the defence and Crown psychiatrists agreed that the accused suffered from a delusional disorder. The Crown's expert, Professor Greenberg, formed the view that at the time of the alleged offence the accused was labouring under a defect of reason caused by that disease of the mind, and that, although he understood the nature and legal wrongness of his act, he did not appreciate it was morally wrong due to his psychotic paranoid delusional belief system.
The accused's legal representatives filed an application for trial by judge alone under the relevant provisions of the Criminal Procedure Act 1986 (NSW). That application was filed one day outside the statutory deadline, with the short delay attributed to the practical difficulty of obtaining the accused's signature while he was held on remand at the Metropolitan Remand and Reception Centre.
Legal Issues
- Whether the court should grant leave, out of time, for the accused to apply for a judge alone trial under s 132A of the Criminal Procedure Act 1986 (NSW)
- Whether, with the consent of both the accused and the Crown, an order for trial by judge alone should be made under s 132 of the same Act
Decision
Campbell J accepted the explanation offered for the one-day delay in filing the application. The delay arose from the logistical difficulty of a Parramatta-based solicitor securing the accused's signature while the accused was in custody. The Crown prosecutor consented both to the election for a judge alone trial and to the extension of time, and no prejudice was identified.
The court noted that granting the order at that stage, with several weeks remaining before the trial date, was likely to spare potential jurors the inconvenience of being summoned unnecessarily. These practical considerations supported extending time under s 132A.
Under s 132(6) of the Criminal Procedure Act, the court was satisfied the accused had received legal advice from both his solicitor and counsel about the effect of a judge alone order. With the consent of both the accused and the Crown established, s 132(2) of the Act required the court to make the order, and Campbell J did so.
Orders Made
- Under s 132A of the Criminal Procedure Act 1986 (NSW): leave granted to the accused to apply out of time for trial by judge alone.
- Under s 132 of the Criminal Procedure Act 1986 (NSW): the accused ordered to be tried for murder by a judge alone, commencing 16 April 2018, without a jury.
Key Takeaways
- Under s 132(2) of the Criminal Procedure Act 1986 (NSW), where both the accused and the Crown prosecutor consent to a judge alone trial, the court is required by law to make the order.
- A brief, adequately explained delay in filing a judge alone application does not automatically defeat the application. Campbell J accepted a one-day delay caused by custodial access difficulties as a sufficient reason to grant an extension of time under s 132A.
- Before making a judge alone order, s 132(6) requires the court to be satisfied the accused has received legal advice from their legal representatives about the effect of such an order.
- Practical considerations, including the avoidance of unnecessary inconvenience to prospective jurors, were treated as relevant factors supporting the grant of the extension of time.
- The decision does not resolve the substantive mental illness defence; it concerns only the procedural question of the mode of trial.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Supreme Court Rules 1970 (NSW)
Cases: None cited.