Boyd v R

1. [1]

   JOHNSON J: On 25 November 2016, I refused the Applicant, Samuel Leonard Boyd, leave to withdraw his application for determination of life sentences, presently listed for hearing on 9 December 2016. The Applicant’s Notice of Motion filed on 9 November 2016 was dismissed. This judgment contains my reasons for making those orders.

The Applicant’s Offences and Sentences

1. [2]

   On 4 January 1985, the Applicant was sentenced by O’Brien CJ of CrD to five terms of penal servitude for life commencing from 22 April 1983, following his conviction by a jury upon four counts of murder and one of wounding with intent to murder. In R v Boyd (1995) 81 A Crim R 260, Gleeson CJ (James and Ireland JJ agreeing) described the Applicant and his offences in the following way (at 261-262):

The First Application

1. [3]

   On 7 July 1994, Carruthers J declined an application by the Applicant to determine the life sentences. On 18 September 1995, the Court of Criminal Appeal dismissed an appeal from that decision: R v Boyd.

The Second Application

1. [4]

   On 25 March 2000, the Applicant made a second application for the determination of the life sentences. On 4 April 2008, the second application came before Hoeben J (as his Honour then was). Senior Counsel for the Applicant informed the Court that he had instructions to withdraw the application. The Court was informed that material had been provided by the Crown but that the Applicant was not in a position to meet it at that time. That material comprised reports of Dr Robert Delaforce, forensic psychiatrist, dated 26 March and 1 April 2008. More will be said later about Dr Delaforce’s reports.

2. [5]

   In April 2008, the relevant legislation did not require the leave of the Court for an application to determine a life sentence to be withdrawn. Hoeben J noted that the application was withdrawn.

The Third Application

1. [6]

   On 23 September 2015, the Applicant filed his third application for the determination of the life sentences. Thereafter, preparation was undertaken by the parties for the hearing of the application. A further report of the Serious Offenders Review Council (“SORC”) dated 16 February 2016 was prepared.

2. [7]

   The Applicant has been psychiatrically examined for the purpose of the application. A report of Dr Richard Furst dated 30 April 2016 has been filed for the Applicant. A report of Dr Michael Diamond dated 18 June 2016 has been filed for the Crown.

3. [8]

   On 21 July 2016, the Court of Criminal Appeal Registrar listed the hearing of the determination application on 9 December 2016, with directions being given for the filing of written submissions and additional evidence on specified dates in October and November 2016.

The Present Application for Leave to Withdraw

1. [9]

   By Notice of Motion filed on 9 November 2016, the Applicant sought the leave of the Court to withdraw the application listed for hearing on 9 December 2016. An affidavit of the Applicant’s solicitor, Alexandra Heffernan, affirmed 8 November 2016 was read in support of the application. The affidavit stated that Ms Heffernan had received a letter from the Applicant on 5 October 2016 in which the Applicant advised that he wished to withdraw his application. On 20 October 2016, the Applicant confirmed his instructions to Ms Heffernan that he “does not want to proceed with the application at this time”.

2. [10]

   An affidavit of the Applicant affirmed 25 November 2016 was also relied upon in support of the withdrawal application. In that affidavit, the Applicant said that he had read the reports of Dr Furst and Dr Diamond and he felt “that there are further central questions” that he needed to resolve in relation to “the critical issues that contributed to my behaviour, as highlighted by Dr Diamond and Dr Furst, before I would consider life in the community”. The Applicant said that “the views expressed by these experts regarding the attitudes” which the authors say the Applicant has, needed to be addressed by him. He said that “after having undertaken this process, and after much consideration” he had “made the difficult decision” to withdraw his application “at this time”.

3. [11]

   The Applicant gave additional oral evidence and was cross-examined by the Crown. Ms Danielle Matsuo, Director Statewide Programs with Corrective Services NSW, gave oral evidence in the Applicant’s case. I will return to aspects of this evidence later in the judgment.

4. [12]

   The Applicant also relied upon a folder of documents containing 2011 and 2012 reports and the SORC report of 16 February 2016 (Exhibit A).

5. [13]

   The Crown relied upon the affidavit of Steven Thomson sworn 14 November 2016. Annexed to Mr Thomson’s affidavit were letters expressing the substantial anguish and concern of family members of the victims at the prospect that the present application may be withdrawn, with consequential uncertainty and the prospect of a further application being brought at a later time.

6. [14]

   The Crown also tendered the folder of documents prepared for the purpose of the final hearing (Exhibit 1) together with a Crown chronology and statutory and extrinsic material (Exhibit 2), a summary of courses and employment undertaken by the Applicant whilst in custody (Exhibit 3) and a letter from the Applicant’s solicitor dated 23 September 2015 (Exhibit 4), which accompanied the third application.

7. [15]

   The Crown opposed the application for leave to withdraw the application.

The Statutory Scheme

1. [16]

   The legislative scheme for determination of life sentences was amended significantly in 2008, to operate upon applications made on or after 17 June 2008. As already noted, the present legislative scheme did not apply to the Applicant when his second application was withdrawn before Hoeben J on 4 April 2008. An applicant did not then require the leave of the Court to withdraw an application: Cribb v R [2008] NSWSC 265.

2. [17]

   Clause 6A of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 provides as follows:

3. [18]

   Clause 6A of Schedule 1 was enacted by the Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008. The construction of Clause 6A commences with consideration of the text itself, with regard to its context, including the general purpose and policy of the provision and the mischief it was seeking to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408. It is appropriate to have regard to the purpose or object of the 2008 Act to assist the construction and operation of Clause 6A: ss.33 and 34 Interpretation Act 1987.

4. [19]

   Some of the purposes to which the 2008 amendments were directed were referred to in the Agreement in Principle speech of Mr David Campbell, Minister for Police (Hansard, Legislative Assembly, 18 June 2008), where the Minister said with respect to the existing legislation, and the proposed amendment concerning withdrawal of an application:

5. [20]

   The Minister concluded the Agreement in Principle speech in the following way:

Submissions of the Parties

1. [21]

   The Court was assisted by helpful written submissions of counsel (MFIs 1 and 2) which were supplemented by oral submissions.

2. [22]

   Put shortly, Mr Strickland SC, for the Applicant, submitted that leave ought be granted to withdraw the application to permit the Applicant an opportunity to take further steps to address the “central questions” arising from the reports of Dr Furst and Dr Diamond. This would involve the Applicant developing a clearer understanding of “the deep drives, motivations and sources of gratification that underlie” his offending. It was submitted that the exercise would not be futile and that there are reasonable prospects that a later application (if leave was allowed to bring it) would have some prospects of success, particularly if the Applicant makes significant progress on the matters to be further explored.

3. [23]

   It was submitted that the Applicant should be given the opportunity to complete custodial courses, including RUSH, EQUIPS and VOTP, which may assist him to address the outstanding questions with respect to his offending.

4. [24]

   It was submitted that, if leave to withdraw was granted, the Applicant would only be allowed to bring a further application with the leave of the Court and after such time as the Court directed under Clause 6A(2)(b).

5. [25]

   Put shortly, the Crown submitted that the 2015 application was made by the Applicant on advice and with full knowledge of the significance of the 2008 amendments.

6. [26]

   It was submitted that the completion of future courses would be of little utility to the determination application. The Crown submitted that the determination application ought be refused no matter how many courses the Applicant undertook.

7. [27]

   Particular emphasis was placed by the Crown upon the trauma of the families of the victims resulting from the prospect of delay for a further period in the hearing of the determination application.

Decision

1. [28]

   In considering whether to grant leave to withdraw an application, the Court must have regard to, and give substantial weight to, the number of times the Applicant has previously withdrawn an application: Clause 6A(3). In this case, the Applicant made an unsuccessful application in 1994 and withdrew a second application in 2008.

2. [29]

   After the passage of a further seven years, the Applicant lodged his third application which has been prepared and listed for hearing. Less than two months before the hearing date, the Applicant indicated that he wished to withdraw his third application.

3. [30]

   As mentioned earlier, the second application was withdrawn following receipt of the reports of Dr Delaforce. The report of Dr Delaforce of 26 March 2008 contained a detailed diagnosis of, in particular, sexual sadism and the Applicant’s exercise of control over the female victims (pages 35-40).

4. [31]

   It is appropriate to set out parts of the recent reports of Dr Furst and Dr Diamond, which are said to have led the Applicant to consider that he had more to do by way of courses and counselling.

5. [32]

   In his report of 30 April 2016, Dr Furst addressed the Applicant’s prognosis (page 11):

6. [33]

   In his report of 18 June 2016, Dr Diamond diagnosed Sexual Sadism and Antisocial Personality Disorder (page 32). Dr Diamond referred to the Applicant’s completion of the CUBIT program (in 2010-2011) and his involvement with Ms Matsuo (who has been seeing the Applicant since 2012 in the context of her PhD studies). He continued (page 34):

7. [34]

   Dr Diamond concluded his report (page 37):

8. [35]

   Under cross-examination by the Crown, the Applicant was asked (T19-20, 25 November 2016):

9. [36]

   Ms Matsuo explained the RUSH and EQUIPS courses. She considered that the Applicant would benefit from those courses. It appears that Ms Matsuo’s contact with the Applicant since her 2012 report for SORC has been in the context of her PhD studies concerning serious violent offending (T34). Ms Matsuo had not read the 2016 reports of Dr Furst and Dr Diamond.

10. [37]

    There is some similarity between the issues raised by Dr Delaforce in 2008 (sexual sadism and control of female victims) and the issues raised by Dr Furst and Dr Diamond in 2016, in particular sexual sadism. This was not a new topic which had only recently come to the Applicant’s attention.

11. [38]

    The Applicant has completed the CUBIT program and has completed other courses as well. It is difficult to see the further general courses which have been mentioned (RUSH, EQUIPS and VOTP) assisting a breakthrough after 33 years, in the fundamental areas of denial of one murder and lack of recollection of three further murders and one wound with intent to murder. Dr Furst observed that the lack of recollection may be “real” or “feigned”.

12. [39]

    I am not persuaded that there is an objective foundation for hope that further time, and the undertaking of further courses, will materially assist any breakthrough on the Applicant’s part. He is now 61 years old and has been in custody for 33 years.

13. [40]

    Clause 6A(4) makes clear that the Court may have regard to other relevant factors in determining whether to grant leave to withdraw an application.

14. [41]

    A matter of importance to the exercise of discretion by the Court is one of the primary purposes identified in the Minister’s Agreement in Principle speech. This is the actual or potential impact upon the families of homicide victims and any surviving victims themselves, as a result of uncertainty arising from delay if the Applicant was to be permitted to withdraw this application and make a further application at some time in the future. The evidence before the Court on this application indicates that the families of the victims of these crimes are subject to great stress, concern and anguish as a result of the uncertainty arising from the Applicant’s late decision to once again seek to withdraw his application, with the prospect that he will apply again some time in the future.

15. [42]

    Other factors to be considered include the long passage of time since the commission of the offences (more than 33 years) and the Applicant’s age (61 years).

16. [43]

    The circumstances of the Applicant’s crimes are also relevant. As Gleeson CJ said in Boyd v R at 261 (see [2] above), the crimes for which the Applicant was sentenced to penal servitude for life “clearly fall within the worst category of case”.

17. [44]

    It should be noted that, if the Applicant was granted leave to withdraw the present application, he could not make a further application without the leave of the Court: Clause 6A(2)(a), Schedule 1. The statutory scheme allows for an appeal to the Court of Criminal Appeal against a decision of the Supreme Court on an application for leave under Clause 6A(2)(a) or a direction under Clause 6A(2)(b): Clause 8(1), Schedule 1.

18. [45]

    I have considered the option of allowing the Applicant to withdraw this application, and directing under Clause 6A(2)(b) that he cannot bring a further leave application under Clause 6A(2)(a) for a period of years. There are a number of difficulties with this option. There is no objective foundation for the view that courses which the Applicant may undertake in custody will advance the position. Further, a significant level of uncertainty will result with expected highly adverse effects on the families of the victims as they are left in a further state of suspension. I have kept in mind the age of the Applicant, the length of time he has been in custody, the nature of his crimes and the totality of the evidence concerning his custodial activities and the psychiatric evidence. I did not consider that a further deferral under Clause 6A(2)(a) and (b) was appropriate in all the circumstances.

19. [46]

    I am conscious that, if leave is refused, the Applicant is confined to one application only. If that application fails, the Applicant will serve the balance of his life in prison. However, I am satisfied that the time has come for the Applicant to proceed to hearing of the application filed on 23 September 2015. The Applicant was aware that the 2008 amendments applied to his third application. He has had ample time to prepare for the hearing of the determination application.

20. [47]

    It was for these reasons, that I made the orders on 25 November 2016 refusing the Applicant leave to withdraw his application to determine his life sentences and dismissed his Notice of Motion filed on 9 November 2016.