Boyd v R

The First Application

1. 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. 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. 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the relevant legislation did not require the leave of the Court for an application to determine a life sentence to be withdrawn. Hoeben J noted that the application was withdrawn.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. 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. 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. 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. 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. 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. 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. 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. 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. 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. The Crown opposed the application for leave to withdraw the application.

The Statutory Scheme

1. 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. Clause 6A of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 provides as follows: "6A Leave required for withdrawal of application and re-application (1) An application referred to in clause 2 (1) may be withdrawn by the offender who made the application, but only with the leave of the Supreme Court. (2) If the Supreme Court grants leave to withdraw an application referred to in clause 2 (1): (a) the offender who made the application may not make a further application referred to in clause 2 (1) without the leave of the Court, and (b) if the Court so directs, the offender may not make the further application for a specified period of time. (3) In considering whether to grant leave to withdraw an application, or to make a further application, referred to in clause 2 (1), the Supreme Court must have regard to and give substantial weight to the number of times the offender has previously withdrawn any application referred to in clause 2 (1). (4) Subclause (3) does not limit the matters to which the Supreme Court may have regard in deciding whether or not to grant leave to withdraw an application, or to make a further application, referred to in clause 2 (1). (5) No appeal lies against the decision of the Supreme Court on an application for leave under subclause (1). (6) An application referred to in clause 2 (1) that is withdrawn cannot be restored. (7) If the Supreme Court declines to grant an application for leave under subclause (2) (a), the offender is to serve the existing life sentence the subject of the application for the term of his or her natural life."
3. 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. 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: "Unfortunately, there was no limit on the number of times an offender could seek a redetermination. Every time an offender made an application, the families of the victims had to go through the stress and trauma of preparing themselves mentally, writing victim impact statements, and appearing in court. And often after enduring that stress the offender would withdraw his or her application at the last minute. … Central to the reforms in the bill is the manner in which an offender who makes an application can then withdraw it. The offender will now be entitled to withdraw the application only with the leave of the court. If leave is granted, the Supreme Court may direct that the inmate cannot make a further application for a specified time and then he or she will be able to withdraw it only with the leave of the court. The Crown can also oppose any application by the offender to withdraw and seek to have the redetermination application heard. When considering whether to grant leave to withdraw or reapply the court will be required to take into account, and give substantial weight to, how many previous applications have already been made and subsequently withdrawn. Importantly, where an application is withdrawn the Crown will be able to ask the Court to prevent the inmate from reapplying within a specified period of time. These proposals relating to withdrawals will prevent judge shopping and will make offenders reconsider withdrawing on a whim without any real grounds or repeatedly withdrawing their application. It is a fundamental principle of sentencing that the offender should have certainty in relation to the sentence that is to be imposed and that it be dealt with as expeditiously as possible. This is also true for victims. These proposals will allow the Court to take into account the delays and consequent hurt and anguish that is brought to bear on victims when such applications are made and not promptly brought to finality. Through this bill the message to applicants is clear: you will have only one chance at redetermination and you should not apply until you are ready to be heard."
5. The Minister concluded the Agreement in Principle speech in the following way: "We are giving the victims certainty that they will only have to go through one redetermination of sentence and will not be put through the roller coaster of emotions when the offender applies but then withdraws on the eve of the hearing. Under these reforms the victims will be given certainty and will not have to suffer time and time again."

Submissions of the Parties

1. The Court was assisted by helpful written submissions of counsel (MFIs 1 and 2) which were supplemented by oral submissions.
2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. In his report of 30 April 2016, Dr Furst addressed the Applicant's prognosis (page 11): "Mr Boyd has worked throughout his term of imprisonment and has completed a number of education and therapeutic programs, including CUBIT. His risk factors have been addressed to some degree through such programs and there has likely been an amelioration of his personality disorder over the last three decades. However, the ongoing denial of his 1982 offence and the real or feigned inability of Mr Boyd to remember his 1983 offences is a barrier to gaining insight into his motivations and/or underlying sexual deviance, which is probably his most significant personal risk factor. His apparent sexual sadism may have also ameliorated over time or may still be present to a degree. It is possible that such fantasies, if present, may only also only emerge under times of intense emotional stress. He is also prone to decompensate in the context of rejection/interpersonal difficulties, which would be of concern if he were to form an intimate relationship in the future."
6. 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): "Whilst all of these accomplishments represent worthwhile experiences for Mr Boyd, there remains the inescapable and singularly most important difficulty with regard to making any meaningful assessment of his risk profile for future offending. The absence of engagement in a full recollection that enables him to address what exactly he did in the course of his offences makes it impossible for any meaningful risk assessment to advance beyond conjecture."
7. Dr Diamond concluded his report (page 37): "Regardless of the existence of monitoring, supportive and interventionist services, the capacity of these services to carry out their function in the absence of clear knowledge of the Applicant's underlying emotional needs, drives, motivations and sources of gratification, makes the function of their roles too difficult to carry out with a satisfactory measure of confidence, in my opinion."
8. Under cross-examination by the Crown, the Applicant was asked (T19-20, 25 November 2016): "Q. In your affidavit at paragraph 52 you talk about the need to participate in further programs to address and resolve central issues regarding your offending. What do you see as the central issues regarding your offending? A. When I read the report from Dr Diamond and Dr Furst, they raised further issues that I have never been aware of nor have ever been addressed. Q. What are they? A. Offhand right now, I don't have the report but I did read them and that was my view at the time. Q. Can you give us a general idea of what particular issues you found relevant in those reports that you say you hadn't been aware of before reading them; what type of things? A. I think it was Dr Furst who related to sexual sadism. That's one. Q. Sexual sadism? A. That's what Dr Furst wrote in one of his reports. It may have been Dr Diamond, I'm not quite sure there. But what else was it? Control issues. Q. Anything else that you - any other central issues that you thought were - A. There was another one, I can't think of what it was. Q. You said sexual sadism, control issues? A. I can't think of the third one, it was in Dr Furst's first report. It was in his diagnosis. I believe there was three. I can't recall Dr Diamond's. Q. Do any of the courses that you've looked at deal with this question of sexual sadism that you have become aware of? You say that the EQUIPS - A. I'm not sure, I don't know. Q. So is it fair to say that your concern about what was raised in those reports has meant that you now want to do as many courses that might help you in that area, is that true? A. I would like to address them, yes. Q. That would include as you say what Dr Furst says about the reference to sexual sadism? A. If it's relevant, yes. HIS HONOUR Q. Did you read the report of Dr Delaforce? A. I did. Q. Dated 26 March 2008. That's one of the two reports you got not long before you withdrew your last application? A. I read the first report prior to withdrawing the appeal; I didn't read the second report until after withdrawing the appeal. Q. Didn't Dr Delaforce mention sexual sadism? A. I can't recall your Honour. BAKER Q. After reading Dr Delaforce's report in 2008 did you not think that it was important to deal with the issues that he raised? A. I would say that I - within the capacity that was available to me within the correctional centres, that I was attempting to address the issues that I could, yes. Q. Did that include dealing with the actual offences that you have been found guilty of? A. Those were raised in - during the courses, yes."
9. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

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: 30 November 2016