Legal Research
Cases
Boyd v The Queen (No. 2)

Boyd v The Queen (No. 2)

Case [2016] NSWSC 1755 5 December 2016

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Boyd v R (No. 2) [2016] NSWSC 1755
Hearing dates: 5 December 2016
Date of orders: 05 December 2016
Decision date: 05 December 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Dismiss Applicant’s Notice of Motion filed 5 December 2016.

Catchwords: CRIMINAL LAW – application for determination of life sentences - Judge refuses Applicant leave to withdraw determination application - whether Judge who refused leave should recuse himself from final hearing of determination application - whether reasonable apprehension of bias - reasonable apprehension of bias not established - recusal application dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Ali v R [2010] NSWCCA 35
Boyd v R [2016] NSWSC 1691
DCU v State Parole Authority [2006] NSWSC 526
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Gaudie v Local Court (NSW) [2013] NSWSC 1425; 235 A Crim R 98
Kruck v Southern Queensland Regional Parole Board [2009] QSC 39
Lee v State Parole Authority [2006] NSWSC 1225
R v Glen [2006] NSWCCA 153; 161 A Crim R 281
R v Wade [2013] NSWSC 1092
Texts Cited: ---
Category: Procedural and other rulings
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: 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]:

“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.”

At [45] I said:

“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…

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 (No. 2)

Details

AGLC: Boyd v The Queen (No. 2) [2016] NSWSC 1755
Case: [2016] NSWSC 1755
Decision Date: 05 December 2016

CaseChat Overview and Summary

The case of Boyd v The Queen (No. 2) involved the appellant, Boyd, seeking to have his life sentences reviewed by the court. The matter came before a single judge who was responsible for determining whether Boyd should be granted leave to withdraw his application for the determination of his life sentences. The appellant subsequently sought the recusal of the judge who had denied his application for leave to withdraw, on the basis that there was a reasonable apprehension of bias.

The legal issues before the court were whether the judge who had initially refused leave to withdraw should recuse himself from the final hearing of the determination application, and whether there was a reasonable apprehension of bias on his part. The court considered the circumstances in which the recusal application was made, the conduct of the judge, and the legal principles governing judicial bias.

The court held that there was no reasonable apprehension of bias, and accordingly dismissed the application for recusal. The court found that the judge's initial decision to refuse leave to withdraw did not establish a reasonable apprehension of bias. The court also noted that the judge had acted within his jurisdiction and had not displayed any conduct that would give rise to a reasonable apprehension of bias. The court further held that the appellant's arguments were speculative and did not demonstrate any actual bias on the part of the judge.

The court dismissed the application for recusal, and the matter proceeded to the final hearing of the determination application. The court found that the appellant had not established a reasonable apprehension of bias on the part of the judge, and that the judge was therefore not required to recuse himself from the matter.

Orders