Director of Public Prosecutions v Liels (application for trial by judge alone)

[2020] VCC 2009

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-18-00773

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAYNE ALLEN LIELS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers (Application for Trial by Judge Alone filed 11 November 2020; Prosecution Response to Application for Trial by Judge Alone filed 23 November 2020)
DATE OF RULING:	15 December 2020
CASE MAY BE CITED AS:	DPP v Liels (application for trial by judge alone)
MEDIUM NEUTRAL CITATION:	[2020] VCC 2009

RULING
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Subject:  CRIMINAL LAW – APPLICATION FOR TRIAL BY JUDGE ALONE
Catchwords:            Application by accused for trial by judge alone – consent of both parties

Legislation Cited:     Criminal Procedure Act 2009 (Vic), s420D(2)(b); Criminal Procedure Act 1986 (NSW), s132(5)

Cases Cited:DPP v Combo [2020] VCC 726; AK v Western Australia (2008) 232 CLR 438

Ruling:  Application for trial by judge alone granted.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Mandie	Solicitor for the Office of Public Prosecutions
For the Accused (Applicant)	Mr M Page	Leanne Warren & Associates

HIS HONOUR:

Introduction

1       Shayne Liels is charged with attempted armed robbery, intentionally causing injury and a summary offence.  He seeks a trial by judge alone, without a jury. His application is not opposed by the prosecution.  The issue in dispute is identification only.

2       The parties agree to the Court determining the application on the papers. 

Circumstances 

3       The alleged circumstances are set out in the Amended Summary of Prosecution Opening.  Simply, it is alleged Mr Liels sought to steal the handbag and car keys of a Ms Lin in the car park of the Chadstone Shopping Centre at about 7.21pm on 7 November 2016.  It is alleged he produced a knife to Ms Lin when demanding her property and punched her in the face, causing injury. 

4       Mr Liels was not arrested until a little over a year later.  When interviewed, he denied any involvement in the attempt to rob Ms Lin.    

5       Following his arrest, Mr Liels was remanded in custody.  It was not until 13 April 2018 that he was granted bail.  However, he did not answer his bail and was re-arrested on 9 August 2019.  He has remained in custody since then, in excess of 600 days.

Discussion  

6 Section 420D of the Criminal Procedure Act 2009 (“the Act”) deals with trials by judge alone. Sub-section (1) provides:

“At any time except during trial, the court may order that one or more charges in an indictment be tried by the judge alone, without a jury, if –

(a)      each charge is for an offence under the law of Victoria; and

(b)      each accused consents to the making of the order; and

(c) the court is satisfied that each accused has obtained legal advice on whether to give that consent, including legal advice on the effect of the order; and

(d) the court considers that it is in the interests of justice to make the order.”

7       Each of paragraphs (a), (b) and (c) is satisfied.  The only issue is whether it is in the interests of justice to make the order.

8       In DPP v Combo,[1] the Chief Judge interpreted s420D of not creating a presumption in favour of trial by jury but, failing an order under the section, there must be a trial by jury.

[1][2020] VCC 726 at paragraphs [46] and [47]

Delay

9       Mr Liels has been in custody for more than 600 days awaiting his trial. Although one cannot say by how much it is clear a trial by judge alone will occur much quicker than trial by jury in this Court in the present circumstances.  This is an important factor.  If Mr Liels is acquitted on the indictable charges, then the shorter time he spends in custody the better. Similarly, if he is found guilty, the sooner he knows his fate the better.  In somewhat similar vein, the alleged victim would want to know as soon as possible whether Mr Liels is her attacker or not.  

Complex or not

10      The apparent simplicity of this trial does not make it more suitable for trial by one mode over the other.  It is equally suitable for trial by judge alone as it is for trial by jury on that score.  In a simple case, such as this, it means a judge could give adequate reasons either at the end of final submissions or within days. 

Community standards

11      In corresponding legislation in other Australian jurisdictions, the issue of objective community standards is raised.  For example:[2]

“… the court may refuse to make an order [by trial by judge alone] if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.”

[2]Section 132(5) of the Criminal Procedure Act 1986 (NSW)

12 Despite the absence of such a provision in s420D of the Act, it is accepted as being a relevant consideration in these applications.[3]     

[3]DPP v Combo (supra) at paragraphs [63] and [64]

13      I cannot see any such issue arising in this case.  There are no objective community standards applicable where the issue is identification.

Determination of facts

14      Although it is thought a jury is better able to assess credibility of witnesses,[4] at least, this case does not appear to involve the sifting of the truthful from the untruthful.  It is the weighing of evidence of identification, which one supposes will be truthful, because it is given in large part by disinterested bystanders. 

[4]AK v The State of Western Australia (2008) 232 CLR 438 at paragraph [94]

Prosecution

15 As I said earlier, the prosecution does not oppose the making of the order. This is also an important consideration, for it means neither party sees any impediment to a finding under s420D(1)(d) of the Act.

Conclusion 

16      The most important factor is delay and the likelihood Mr Liels will have a trial by judge alone much quicker than by jury.  The other factors reinforce the need, in the interests of justice, to make an order for trial by judge alone in this case and I will do so.

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