Boyd v The Queen - [2016] NSWSC 1691

Supreme Court

New South Wales

Medium Neutral Citation: Boyd v R [2016] NSWSC 1691
Hearing dates: 25 November 2016
Date of orders: 25 November 2016
Decision date: 30 November 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. Applicant refused leave to withdraw his application for determination of life sentences.
2. Applicant’s Notice of Motion filed on 9 November 2016 dismissed.

Catchwords: CRIMINAL LAW – application for determination of life sentences imposed in 1985 - four counts of murder and one of wounding with intent to murder - first determination application refused in 1994 - second application withdrawn in 2008 - third application filed in 2015 - application for leave to withdraw application - requirement for leave under Clause 6A of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 as amended in 2008 - Crown opposes leave to withdraw - factors relevant to leave decision - past withdrawal and prior refused application - impact of further uncertainty upon families of victims - whether further delay before application can be brought would be purposeful - leave to withdraw application refused
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008
Interpretation Act 1987
Cases Cited: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384
Cribb v R [2008] NSWSC 265
R v Boyd (1995) 81 A Crim R 260
Texts Cited: ---
Category: Principal judgment
Parties: Samuel Leonard Boyd (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr PM Strickland SC (Applicant)
Mr H Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/294899
Publication restriction: ---

JUDGMENT

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

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):

“At the time of his sentencing, the appellant was aged twenty nine. He had a long criminal record. He immigrated from Scotland, with his family, at the age of eleven, and came to the notice of police soon afterwards. He spent time both in juvenile training centres, and in an adult institution.
The crimes for which the appellant was sentenced to penal servitude for life clearly fall within the worst category of case. It is unnecessary for present purposes to recount the appalling details. It suffices to describe them in summary form.
In September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boyd v The Queen

Details

AGLC: Boyd v The Queen [2016] NSWSC 1691
Case: [2016] NSWSC 1691
Decision Date: 30 November 2016

CaseChat Overview and Summary

Boyd sought a determination of the life sentences imposed in 1985, stemming from four counts of murder and one count of wounding with intent to murder. This case came before the court following Boyd's third application filed in 2015. Boyd's first application for a determination was refused in 1994, and the second application was withdrawn in 2008. The Crown opposed Boyd's application for leave to withdraw the current application under Clause 6A of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, as amended in 2008.

The court considered several legal issues, including whether the Crown's opposition to leave was justified, and the factors relevant to the leave decision. These factors included the prior withdrawal of the second application, the refusal of the first application, and the potential impact of further uncertainty on the families of the victims. The court also considered whether any further delay before the application could be brought would be purposeful. The Crown argued that the withdrawal of the application would cause further distress to the victims' families.

The court ultimately refused leave for Boyd to withdraw his application. The court determined that the Crown's opposition to leave was justified, and that the factors relevant to the leave decision weighed in favour of denying leave. The court found that the prior withdrawal of the second application and the refusal of the first application were significant factors. Additionally, the court found that the potential impact of further uncertainty on the victims' families was a relevant consideration. The court also found that any further delay before the application could be brought would not be purposeful.

The final orders of the court were that leave to withdraw the application was refused, and the application was to proceed to a determination of the sentences imposed in 1985. The court emphasised that its decision was based on the specific circumstances of this case, and that each application for leave to withdraw would be considered on its own merits.

Orders