Bulger v Queensland Community Corrections Board - [1993] QCA 493

IN THE COURT OF APPEAL	[1993] QCA 493
SUPREME COURT OF QUEENSLAND

Appeal No. 123 of 1993.

Brisbane

[Bulger v. Queensland Community Corrections Board]

BETWEEN:

ALLEN STEWART BULGER

(Applicant) Respondent

- and -

QUEENSLAND COMMUNITY CORRECTIONS
BOARD

(Respondent) Appellant

____________________________________________________________

_____

Before Pincus J.A.
Davies J.A.
Mackenzie J.

____________________________________________________________

_____

Judgment delivered 06/12/93

Judgment of the Court

____________________________________________________________
_____

1. ORDER 1 MADE BY THE PRIMARY JUDGE ON 25 JUNE 1993 VARIED BY REPLACING THE EXPRESSION "IN THE LIGHT OF THESE REASONS" WITH "IN THE LIGHT OF THE REASONS OF THE PRIMARY JUDGE AND THOSE OF THE COURT OF APPEAL".
2. OTHERWISE, APPEAL DISMISSED WITH COSTS.

____________________________________________________________
_____

CATCHWORDS: ADMINISTRATIVE LAW - judicial review of decision of Queensland Community Corrections Board that the respondent not be released on parole under s. 166 of the Corrective Services Act 1988 - respondent convicted of official corruption - thereafter respondent co-operated with the Special Prosecutor's Office in its investigations into conduct of Licensing Branch officers - sentencing judge in a subsequent trial in which respondent gave evidence expressed the view that the respondent should be considered for parole after having served two years of his sentence - a number of applications for parole have been made with the support of the Special Prosecutor -all were unsuccessful - whether the appellant failed to give proper weight to the extent and value of the respondent's co- operation - whether result unreasonable in the Wednesbury sense.

Counsel:	Mr J S Douglas Q.C. with him Mr G J Koppenol for the appellant. Mr D C Rangiah for the respondent.
Solicitors:	Crown Solicitor for the appellant. Prisoners' Legal Service for the respondent.

Hearing Date: 25 October 1993.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 123 of 1993.

Brisbane

Before

Pincus J.A. Davies J.A. Mackenzie J.

[Bulger v. Queensland Community Corrections Board]

BETWEEN:

ALLEN STEWART BULGER

(Applicant) Respondent

- and -

QUEENSLAND COMMUNITY CORRECTIONS
BOARD

(Respondent) Appellant

JUDGMENT OF THE COURT

Judgment delivered 06/12/93

This is an appeal from a judgment of the Supreme Court setting aside a decision of the appellant, made on 17 December 1992, and referring the application which gave rise to the decision, back to the Board for further consideration. The appellant is not a person interested in the impugned decision, but the decision maker itself. The decision in question is that of the Queensland Community Corrections Board that the respondent not be released on parole under s. 166 of the Corrective Services Act 1988 ("the Act"). The appellant had no power to release the respondent unless satisfied that there were special circumstances relating to him; it was not so satisfied.

The reason why it was necessary for special circumstances to be found was that the respondent was sentenced to 12 years imprisonment on 8 February 1990 and so, subject to the judge's orders referred to below, was not eligible for release on parole until at least half of that term of imprisonment had been served: s.…

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.

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Details

Case: [1993] QCA 493
Decision Date: 6/12/1993

CaseChat Overview and Summary

The case of Bulger v Queensland Community Corrections Board involved Allen Stewart Bulger, the applicant, who appealed against a decision made by the Queensland Community Corrections Board to deny his release on parole. The court was required to decide whether the appellant had given proper weight to the extent and value of Bulger's co-operation, and whether the result was unreasonable in the Wednesbury sense.

The court found that the Queensland Community Corrections Board did not give proper weight to the extent and value of Bulger's co-operation, and that the result was unreasonable in the Wednesbury sense. The court held that the Board should have considered the public interest in encouraging such co-operation as Bulger gave, particularly in the area of official corruption. The Board's statement that it did not "perceive its statutory duty to either encourage or discourage that process" was seen to import that it did not accept that such encouragement in appropriate cases was a proper part of its function.

The court concluded that the Queensland Community Corrections Board's decision was unreasonable, and the matter was referred back to the Board for further consideration in light of the reasons provided by the primary judge and the Court of Appeal. The appeal was dismissed with costs.

The final orders of the court were to vary Order 1 made by the primary judge by replacing the expression "in the light of these reasons" with "in the light of the reasons of the primary judge and those of the Court of Appeal". Otherwise, the appeal was dismissed with costs.

Orders