Supreme Court New South Wales Medium Neutral Citation: R v Lieu [2018] NSWSC 484 Hearing dates: 28 March 2018 Date of orders: 28 March 2018 Decision date: 28 March 2018 Jurisdiction: Common Law Before: Campbell J Decision: Under s 132A Criminal Procedure Act 1986 (NSW), I grant the accused leave to apply out of time for trial by judge alone; and Under s 132 of the said Act, order that the accused be tried for murder commencing on 16 April 2018 by a judge alone without a jury. Catchwords: CRIMINAL LAW – Leave to apply out of time - application for judge alone trial - by consent - granted Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 132, 132A; Supreme Court Rules 1970 (NSW) Cases Cited: Nil Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed) Category: Principal judgment Parties: Regina (Crown) Lung Lieu (Accused) Representation: Counsel: N Williams (Crown) E Ozen (Accused) Solicitors: NSW Director of Public Prosecutions (Crown) Graham Nelson, Solicitor (Accused) File Number(s): 2016/351061 judgment 1. The accused is to stand trial on an indictment charging him with murdering Guo Bing Liu on 23 November 2016 at Campsie. The trial is fixed to commence before me with a jury on 16 April 2018. 2. When the matter was before me for directions on 8 March 2018, Mr Ozen of Counsel, who appears for the accused, informed me that the only likely issue to arise at the trial is whether the accused is not guilty of murder by reason of mental illness. At that time I was provided with a copy of the report of Dr Ben Teoh, consultant forensic psychiatrist, of 17 July 2017 for the defence, and the report of Professor David Greenberg of 24 January 2018 for the Crown. 3. It is quite apparent to me from having read those reports since the matter was last before me that the accused does indeed suffer from a mental illness. Dr Teoh proffered a diagnosis of a delusional disorder in accordance with the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders and Professor Greenberg has agreed with that diagnosis. 4. Dr Teoh's report seems to have been obtained for the purpose of ascertaining the fitness of the accused to stand trial. He formed a view that, notwithstanding the delusional disorder, he was fit. He did not, in terms, presumably because he was not then asked, address the question of the applicability of the mental illness defence. 5. Professor Greenberg, who, with respect, had available more primary material relating to the accused's mental health than Dr Teoh, addressed the issue, as Mr Ozen says, in a comprehensive fashion. He identifies the delusional disorder as a disease of the mind and expresses the opinion that, at the time of the alleged offence, the accused was labouring under a defect of reason caused by that disease of the mind. 6. Although he formed a view that the accused did know the nature and quality of his act at the time of the apparent offending, and that the act was legally wrong, Professor Greenberg expressed the view that he did not know the act was morally wrong at the time of the alleged offending. This was because he was acting on his psychotic paranoid delusional belief system. 7. There does not seem to be much doubt that for a number of years he had delusional paranoid beliefs about being followed by the Australian Federal Police and that they were acting illegally in relation to persons within his social circle. He seems to have bound up his thinking about the deceased, whom he had known for a period of time, into that psychotic delusional belief system, as Professor Greenberg puts it, and that his deliberate stabbing of the deceased was motivated by that delusional thinking. 8. The legal representatives of the accused have filed an application for trial by judge alone in accordance with the Supreme Court Rules 1970 (NSW). The application which had been foreshadowed was filed on 20 March 2018, as it happens, one day out of the time fixed by s 132A of the Criminal Procedure Act 1986 (NSW) ("Criminal Procedure Act"). Mr Ozen informed me that the reason for that very short delay was the difficulty experienced by his instructing solicitor in obtaining the signature of the accused required for the application under s 132 of the Criminal Procedure Act. That difficulty arises out of the consideration that the solicitor practises at Parramatta and the accused is currently in custody on remand at the Metropolitan Remand and Reception Centre. In any event, I accept that explanation proffered by Mr Ozen from the Bar Table. 9. It is also significant to record that the learned Crown Prosecutor, Ms Williams, has consented to the election for trial by judge alone and also consents to the extension of time necessary for the application to be made. 10. In those circumstances, I will make an order extending time for bringing the application. This is especially appropriate as we are still some weeks out from the date fixed for trial and making an order now will, rather than creating inconvenience for the members of the public who may be summoned to form part of the jury panel, is likely to save them a degree of inconvenience. 11. In accordance with the provisions of s 132(6) of the Criminal Procedure Act, I am satisfied that the accused has sought and received legal advice from his solicitor, Mr Van Houten and Counsel, Mr Ozen, in relation to the effect of a judge alone order being made. Given that the accused and the prosecutor both agree to the accused being tried by a judge alone, I am required by law, under the provisions of s 132(2) of the Act, to make the order. For those reasons, I make the following orders: 1. Under s 132A Criminal Procedure Act 1986 (NSW), I grant the accused leave to apply out of time for trial by judge alone; and 2. Under s 132 of the said Act, order that the accused be tried for murder commencing on 16 April 2018 by a judge alone without a jury. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2018