Boyd v R (No. 2) [2016] NSWSC 1755

Boyd v R (No. 2) [2016] NSWSC 1755

The recusal application was dismissed because the Applicant did not demonstrate that a fair-minded lay bystander might reasonably apprehend that Johnson J might not bring an impartial mind to the final determination application. The earlier refusal of leave to withdraw was an interlocutory function distinct from the final hearing, the judgment of 30 November 2016 had to be read as a whole, and the final application would be decided on the evidence and submissions at that hearing by reference to the relevant considerations in Clauses 3 and 7 of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. The elements required by Ebner, as summarised in Gaudie, were not established.

Jurisdiction
Australia
Judgment Date
05 December 2016
Procedural Posture
Criminal Law Application for Determination of Life Sentences; Recusal Notice of Motion / Notice of Motion Filed 5 December 2016 Seeking Recusal Before Final Hearing of Determination Application
Outcome
Application dismissed.
Legal Topics
['determination of Life Sentences' 'reasonable Apprehension of Bias' 'prejudgment' 'rehabilitation and Future Risk' 'community Safety']
['criminal Law' 'sentencing' 'judicial Bias and Recusal'] ['determination of Life Sentences' 'reasonable Apprehension of Bias' 'prejudgment' 'rehabilitation and Future Risk' 'community Safety']

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Procedural Posture

Criminal Law Application for Determination of Life Sentences; Recusal Notice of Motion / Notice of Motion Filed 5 December 2016 Seeking Recusal Before Final Hearing of Determination Application

Legal Issues

  1. 1 ['Whether the judge who refused the Applicant leave to withdraw his determination application should recuse himself from the final hearing of that application.' 'Whether statements made in Boyd v R [2016] NSWSC 1691 at [39] and [45] gave rise to a reasonable apprehension of bias by way of prejudgment on rehabilitation, future risk, or other issues for the final hearing.']

Ratio Decidendi

The recusal application was dismissed because the Applicant did not demonstrate that a fair-minded lay bystander might reasonably apprehend that Johnson J might not bring an impartial mind to the final determination application. The earlier refusal of leave to withdraw was an interlocutory function distinct from the final hearing, the judgment of 30 November 2016 had to be read as a whole, and the final application would be decided on the evidence and submissions at that hearing by reference to the relevant considerations in Clauses 3 and 7 of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. The elements required by Ebner, as summarised in Gaudie, were not established.

Court Disposition

Application dismissed.

Orders

  • ["Dismiss Applicant's Notice of Motion filed 5 December 2016."]