Boyd v R (No. 2)

JOHNSON J: The Applicant, Samuel Leonard Boyd, has made application to the Court for determination of five sentences of penal servitude for life imposed in 1985. The hearing of that application is listed for 9 December 2016.

On 25 November 2016, I refused the Applicant leave to withdraw his application. On 30 November 2016, I published my reasons for that decision: Boyd v R [2016] NSWSC 1691.

By Notice of Motion filed 5 December 2016, the Applicant seeks that I recuse myself from hearing the determination application listed for hearing on 9 December 2016. In support of the recusal application, the Applicant relies upon what I said in Boyd v R at [39] and [45]. I said at [39]:

It was submitted that the reasonable apprehension of bias test is made out by reference to what was said in these paragraphs, especially given the need for the Court at a final hearing to have regard to "the need to preserve the safety of the community": Clause 7(1)(b), Schedule 1 Crimes (Sentencing Procedure) Act 1999.

Senior Counsel for the Applicant noted as well that the Crown was to rely upon the suggested heinousness of the offences at the final hearing: Clause 7(5)(b), Schedule 1.

Reference was made on behalf of the Applicant to part of the report of Dr Michael Diamond dated 18 June 2016, where it was said (Exhibit A, page 36):

The Applicant submits that there is a reasonable apprehension of bias by way of prejudgment on the issue of rehabilitation.

The principles to be applied on an application such as this are not in doubt. For present purposes, I will refer to the summary of principles contained in Gaudie v Local Court (NSW) [2013] NSWSC 1425; 235 A Crim R 98 at 120-121 [78]-[89]:

Senior Counsel for the Applicant relies upon R v Glen [2006] NSWCCA 153; 161 A Crim R 281 at 290-291 [30]-[37] in support of the application.

The Crown opposed the application that I recuse myself from the final hearing.

Helpful written submissions were made on behalf of the Applicant and the Crown. It is not necessary to repeat the contents of those submissions in this judgment.

In refusing leave to withdraw the application, the Court was exercising an interlocutory function which may be contrasted with the task of the Court at a final hearing. It is necessary to read the judgment of 30 November 2016 in its entirety.

The reasonable bystander would keep in mind the different tasks being undertaken by the Court on the interlocutory application and the final hearing. The task for the Court at the final hearing will be to have regard to factors set out in Clauses 3 and 7 of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. The need to preserve the safety of the community is but one factor which the Court will be required to take into account.

To the extent that the Applicant's denial of the first offence, and his claimed lack of recollection of the other offences, will bear upon issues to be considered, the Court will keep in mind the approach to such matters in decisions such as DCU v State Parole Authority [2006] NSWSC 526 at [44]ff and [66]ff; Lee v State Parole Authority [2006] NSWSC 1225 at [59]ff; Kruck v Southern Queensland Regional Parole Board [2009] QSC 39 at [18] (where the principles in DCU v State Parole Authority were adopted and applied) and Ali v R [2010] NSWCCA 35 at [48]. Denial and lack of recollection are not disqualifying factors when release to parole is under consideration. With respect to a denial or reluctance to acknowledge guilt, I note the decision referred to by the Crown in R v Wade [2013] NSWSC 1092, where reluctance to acknowledge guilt did not stand in the way of determination of a life sentence.

I do not consider that R v Glen supports the Applicant on the present application.

The test to be applied is whether a fair-minded lay bystander might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that the Court is required to consider at the final hearing of the determination application.

The Court will determine the application at the final hearing in light of the evidence adduced, and submissions made, at the final hearing and by reference to the various considerations relevant at that point.

It has not been demonstrated that a fair-minded lay bystander might reasonably apprehend that I might not bring an impartial mind to the resolution of the question of the Applicant's rehabilitation and future risk, and other questions that the Court will be required to consider at the final hearing of the determination application.

Applying the principles summarised in Gaudie v Local Court (NSW) (at [8] above), I am not satisfied that a basis has been demonstrated to recuse myself from the final hearing of the application. The Applicant has failed to demonstrate the elements derived from Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, as summarised in Gaudie v Local Court (NSW) at 120 [79]-[80].

I dismiss the Applicant's Notice of Motion filed 5 December 2016.