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 1. 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. 2. 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. 3. 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 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." 1. 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. 2. 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. 3. 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): "To respond directly to the risk factor question, my view is that the Commissioner is correct in his view in that the inmate remains moderate to high risk rather than low risk. It is impossible to form a view that Mr Boyd is other than moderate to high risk because there is no clear definitive information about his exact state and recall of his subjective emotional drives at the time of the offences. Any assessment of risk and risk factors without that crucial material cannot be extrapolated to determine that he is at anything other than moderate to high risk." 1. The Applicant submits that there is a reasonable apprehension of bias by way of prejudgment on the issue of rehabilitation. 2. 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]: "78 The governing principle is that, subject to qualifications relating to waiver, necessity or possibly special circumstances (none of which arise in this case), a judicial officer is disqualified if a fair-minded lay observer or bystander (hereinafter 'the bystander') might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question or questions that the Judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344 [6]: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at 331 [139], 333-335 [146]-[152]. The question is one of 'possibility (real and not remote), not probability': Ebner v Official Trustee in Bankruptcy at 345 [7]. 79 In practice, the application of this test involves the following steps: (a) the party seeking disqualification must identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at 345 [8]; (b) the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345 [8]. 80 Once the matter suggesting bias has been identified and the logical connection between that matter and the feared deviation has been articulated, the party seeking disqualification must establish that there is an ensuing apprehension of bias and that that apprehension is reasonable: Ebner v Official Trustee in Bankruptcy at 345 [8]. 81 A judicial officer should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 504 [45]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352. However, the principle that a judicial officer should not disqualify him or herself too readily is not 'a blanket that smothers the effect of disqualification where it has already arisen': Antoun v The Queen [2006] HCA 2; 224 ALR 51 at 60 [35] (Kirby J). 82 Where (as here, at least in part), prejudgment is relied upon, what must be firmly established is a reasonable fear on the part of the bystander that the decision-maker's mind is prejudiced in favour of a conclusion already framed, so that he or she will not alter that conclusion irrespective of the evidence or arguments presented. That reasonable fear must be firmly established because it is to be expected that judicial officers may have formed views or inclinations of mind with respect to particular subjects in the course of their professional careers, which will be put to one side in the determination of proceedings on the evidence and on the merits: CUR24 v Director of Public Prosecutions at [36]. 83 It is necessary to keep firmly in mind the distinction between apprehended bias and actual bias. This is important given statements made by the Magistrate in his judgment of 9 May 2013 (emphasised at [75] above) and submissions made with respect to those statements. 84 As the test is objective, it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at 437 [33]. 85 In a case of actual bias, the actual state of mind of the judicial officer is in issue. In a case of apprehended bias, the focus is on the apprehension of the bystander. The latter test is usually easier to satisfy: Spencer v Bamber [2012] NSWCA 274 at [16]. 86 The actual thought processes of the judicial officer need only be enquired into in deciding whether the judicial officer has been actuated by actual bias: Ebner v Official Trustee in Bankruptcy at 345 [7]; Spencer v Bamber at [107]. Application of the apprehended bias test requires no prediction about how the judicial officer will in fact approach the matter: Ebner v Official Trustee in Bankruptcy at 345 [7]. This serves to explain why the existence of a judicial oath is not an answer to a claim of apprehended bias, although (as will be seen) it is a matter which the bystander may take into account. 87 As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick - it is the public's perception of neutrality with which the rule is concerned: British American Tobacco Australia Services Limited v Laurie at 331 [139]. 88 The bystander may have regard to the cumulative effect of factors: AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236 at 254-255 [67]-[68]. Later statements may serve to reinforce an impression created earlier: Antoun v The Queen at 52 [2]. 89 Similarly, it has been recognised that any statement by a judicial officer which qualifies, corrects, dispels or clarifies what has been said on a prior occasion, may be taken into account by the bystander, and may operate against a finding of apprehended bias: Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572, 587; Johnson v Johnson at 494 [14], 495 [18]. It has been said as well, however, that circumstances may exist where the appearance of bias is ineradicable: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 372." 1. 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. 2. The Crown opposed the application that I recuse myself from the final hearing. 3. 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. 4. 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. 5. 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. 6. 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. 7. I do not consider that R v Glen supports the Applicant on the present application. 8. 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. 9. 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. 10. 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. 11. 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]. 12. I dismiss the Applicant's Notice of Motion filed 5 December 2016. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2016