Burridge v Parole Board Queensland - [2021] QSC 244

SUPREME COURT OF QUEENSLAND

CITATION:

Burridge v Parole Board Queensland [2021] QSC 244

PARTIES:

TREVOR LEWIS BURRIDGE

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

BS No 7509 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

29 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2021

JUDGE:

Bradley J

ORDER:

The order of the court is that:

1. The whole of the decision of the respondent made on 8 June 2021 in respect of the applicant’s application for a parole order is set aside with effect from 8 June 2021, pursuant to section 30(1)(a) of the Judicial Review Act 1991 (Qld) (the “Act”).

2. The applicant’s application for a parole order is referred to the respondent for further consideration and for a decision according to law, pursuant to section 30(1)(b) of the Act.

3.   The respondent is to pay the applicant’s costs of the proceeding, to be assessed on the standard basis.

The court directs that:

4.   Within five business days of this order, the respondent is to advise the applicant and the court of whether it proposes any alternative to the directions proposed by the applicant (namely, that the respondent reconsider the applicant’s application for a parole order within 30 days and inform the applicant of its decision within seven days).

5.   Within five business days of receipt of the respondent’s advice, the applicant is to advise the respondent and the court of his response, if any, to any alternative directions proposed by the respondent.

6.   Each of the parties is to advise the court whether the party requires an oral hearing on the proposed directions or is content for the court to make directions on the papers without an oral hearing.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where the applicant is serving a life sentence for murder – where the applicant became eligible for parole in 2006 and was granted parole on two previous occasions – where the applicant was returned to custody and the parole orders cancelled – where the applicant made the present application for parole which was refused by the Parole Board – where the applicant has applied for judicial review of the Board’s decision to refuse the parole application – whether the Board breached the rules of natural justice in its decision to decline the parole application

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the Board explained its decision to refuse the parole application in a statement of reasons – where the statement of reasons proceeds on a factually inaccurate understanding of the applicant’s criminal history, supposed violent responses to emotional distress and custodial behaviour – where the Board found the applicant displayed a poor response to previous community-based supervision orders – where the Board failed to consider expert evidence about recommended parole conditions– whether the Board failed to consider relevant considerations in deciding the risk the applicant would pose to the community…

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: [2021] QSC 244
Decision Date: 29 September 2021

CaseChat Overview and Summary

Mr Burridge, a life prisoner serving a sentence for murder, sought judicial review of the Parole Board Queensland’s decision to refuse his application for parole. Mr Burridge had previously been granted parole on two occasions but was returned to custody and had his parole orders cancelled on both occasions. He made the present application for parole, which the Board declined. The Board’s decision was based on a statement of reasons that contained inaccuracies and failed to consider relevant evidence. Mr Burridge sought judicial review, arguing that the Board breached the rules of natural justice and failed to consider relevant considerations in its decision. The Board argued that the decision was made according to law and that it was not bound to accept the evidence before it.

The court considered whether the Board breached the rules of natural justice and failed to consider relevant considerations in deciding the risk the applicant would pose to the community if released on parole. The court found that the Board did breach the rules of natural justice and failed to consider relevant considerations in its decision. The Board’s statement of reasons contained inaccuracies and proceeded on a factually inaccurate understanding of the applicant’s criminal history, supposed violent responses to emotional distress and custodial behaviour. The Board failed to consider expert evidence about recommended parole conditions, and the court found that the Board failed to give proper, genuine and realistic consideration to the merits of the application in exercising its discretion in accordance with policy.

The court set aside the Board’s decision and referred the matter back to the Board for reconsideration. The court also ordered that the Board pay the applicant’s costs of the proceeding. The court directed that the Board and the applicant advise the court whether they require an oral hearing on the proposed directions or are content for the court to make directions on the papers without an oral hearing.

Orders

Orders of the court

The order of the court is that:

1. The whole of the decision of the respondent made on 8 June 2021 in respect of the applicant’s application for a parole order is set aside with effect from 8 June 2021, pursuant to section 30(1)(a) of the Judicial Review Act 1991 (Qld) (the “Act”).

2. The applicant’s application for a parole order is referred to the respondent for further consideration and for a decision according to law, pursuant to section 30(1)(b) of the Act.

3. The respondent is to pay the applicant’s costs of the proceeding, to be assessed on the standard basis.

The court directs that:

4. Within five business days of this order, the respondent is to advise the applicant and the court of whether it proposes any alternative to the directions proposed by the applicant (namely, that the respondent reconsider the applicant’s application for a parole order within 30 days and inform the applicant of its decision within seven days).

5. Within five business days of receipt of the respondent’s advice, the applicant is to advise the respondent and the court of his response, if any, to any alternative directions proposed by the respondent.

6. Each of the parties is to advise the court whether the party requires an oral hearing on the proposed directions or is content for the court to make directions on the papers without an oral hearing.

Background

Background to the litigation

Mr Burridge seeks an order setting aside the Board’s decision under s 30(1) of the Judicial Review Act1991 (Qld) (the JRA) and an order that the Board reconsider his application within 30 days and inform him within seven days of its decision. Background Mr Burridge is a prisoner at the Borallon Training and Correctional Centre (BTCC). He is serving a life sentence for murder committed 28 years ago, on 29 September 1993, when he was aged 21. He was arrested on 1 October 1993 and held in custody from that date. Mr Burridge became eligible for parole in December 2006, having served 13 years in custody.[4] The Board made this first parole order in May 2011 and he was released on 6 June 2011, at age 39.[5] He was returned to custody on 29 July 2013, when this order was suspended. On 29 October 2013, after three months in custody, he was released on the same parole order, when the suspension ended. [4]At the time Mr Burridge was sentenced, s 166(1)(a) of the then Corrective Services Act 1988 (Qld) provided that a prisoner serving a term of life imprisonment was not eligible for parole until the prisoner had been detained for a period of 13 years. [5]This first parole order does not appear to have been before the Board when the present decision was made. It is described but not exhibited in the evidence before the court. On 20 October 2015, the Corrective Services Queensland (QCS) chief executive suspended Mr Burridge’s first parole order. Mr Burridge returned to custody, aged 43. On 6 November 2015, the Board cancelled the first parole order. On 24 July 2019, the Board made a second parole order. It directed that Mr Burridge be granted and released to parole on 19 August 2019, at age 47. On 16 January 2020, shortly after his 48th birthday, Mr Burridge was returned to custody. On 26 August 2020, the Board cancelled the second parole order. The present application for parole and the Board’s decision On 8 November 2020, Mr Burridge made another application for parole. The Board received it on 10 November 2020. On 8 April 2021, Mr Burridge filed an application to review the Board’s failure to make a decision within the time required by s 193(3) of the CSA. The application was listed for a hearing on 20 April 2021. On 19 April 2021, a legal officer of the Board wrote to Mr Burridge stating that at a meeting that day the Board made a preliminary decision to refuse his application for parole. This was, at best, a half-truth.[6] [6]It appears the letter was written to avoid the court making directions for a hearing of Mr Burridge’s application for an order requiring the Board to make the overdue decision. On 21 April 2021, someone for and on behalf of the Board wrote to Mr Burridge informing him that his application and some other documents were considered by the Board at meetings on 19 and 21 April 2021. According to this letter, the Board considered 138 pages of material. By the letter, the Board advised Mr Burridge that after “considering all the available documents”, it had formed a preliminary view that his application should be declined.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 16 January 2020, shortly after his 48th birthday, Mr Burridge was returned to custody. On 26 August 2020, the Board cancelled the second parole order. The present application for parole and the Board’s decision On 8 November 2020, Mr Burridge made another application for parole. The Board received it on 10 November 2020. On 8 April 2021, Mr Burridge filed an application to review the Board’s failure to make a decision within the time required by s 193(3) of the CSA. The application was listed for a hearing on 20 April 2021. On 19 April 2021, a legal officer of the Board wrote to Mr Burridge stating that at a meeting that day the Board made a preliminary decision to refuse his application for parole. This was, at best, a half-truth.[6] [6]It appears the letter was written to avoid the court making directions for a hearing of Mr Burridge’s application for an order requiring the Board to make the overdue decision. On 21 April 2021, someone for and on behalf of the Board wrote to Mr Burridge informing him that his application and some other documents were considered by the Board at meetings on 19 and 21 April 2021. According to this letter, the Board considered 138 pages of material. By the letter, the Board advised Mr Burridge that after “considering all the available documents”, it had formed a preliminary view that his application should be declined. The purpose of the letter was to draw Mr Burridge’s attention “to the adverse factors that resulted in that preliminary opinion.” The letter set out its content under a series of headings: Criminal History; Sentencing Remarks; Outstanding Treatment Needs; Forensic Psychological/Psychiatric Risk Assessment Report; Previous Community Based Supervision; Custodial Behaviour; and Conditions of Parole. The letter concluded with an invitation to Mr Burridge “to send the Board any further written submissions you wish to make and/or to provide any further supporting documents.” The letter advised: “Those submissions and/or documents should address the issues raised in this letter; and should be sent within 14 days of the date on which you receive this letter.” It is convenient to refer to this letter as the preliminary view letter. It was littered with inaccuracies. These give some indication of the attention the Board paid to the material in the 138 pages it was said to have considered. On 26 April 2021, Mr Burridge replied. Over ten pages, he identified many of the errors in the preliminary view letter. The Board received this reply on 27 April 2021. By then it had also received sessional summaries from Mr Burridge’s treating psychologist, Ms Geddes. On 27 May 2021, he provided a letter from Prisoner Services and on 30 May 2021 an email with an update from the psychologist and a copy of Mr Burridge’s nine-page safety and relapse plan. On 8 June 2021, the Board met. According to a letter written for and on behalf of the Board, dated 10 June 2021: “The Board determined that there was no new information contained in your further submissions and other material received which would sufficiently alleviate the Board’s concerns as outlined in correspondence dated 21 April 2021.Considering your application as a whole and having regard to the Ministerial Guidelines, parole conditions that could be imposed in a parole order and legislative timeframes within which the Board is required to make its decision (section 193 of the Corrective Services Act 2006), the Board remains of the view that the circumstances identified in your application dated 8 November 2020 do not warrant your release to parole at this time. The Board has therefore formed a view that your application for parole should be declined at this time.The Board consent to you lodging a new application for parole in the usual manner in 8 months from the date of this decision[[7]] and encourages you to remain breach and incident free in the meantime.”[7]Having taken about eight months to decide Mr Burridge’s application, the Board’s decision prevented Mr Burridge from making a new application for a further period of eight months from 8 June 2021.The Statement of Reasons

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Burridge v Parole Board Queensland [2021] QSC 244
PARTIES:	TREVOR LEWIS BURRIDGE (applicant) v PAROLE BOARD QUEENSLAND (respondent)
FILE NO:	BS No 7509 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	29 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2021
JUDGE:	Bradley J
ORDER:	The order of the court is that: 1. The whole of the decision of the respondent made on 8 June 2021 in respect of the applicant’s application for a parole order is set aside with effect from 8 June 2021, pursuant to section 30(1)(a) of the *Judicial Review Act 1991* (Qld) (the “Act”). 2. The applicant’s application for a parole order is referred to the respondent for further consideration and for a decision according to law, pursuant to section 30(1)(b) of the Act. 3. The respondent is to pay the applicant’s costs of the proceeding, to be assessed on the standard basis. The court directs that: 4. Within five business days of this order, the respondent is to advise the applicant and the court of whether it proposes any alternative to the directions proposed by the applicant (namely, that the respondent reconsider the applicant’s application for a parole order within 30 days and inform the applicant of its decision within seven days). 5. Within five business days of receipt of the respondent’s advice, the applicant is to advise the respondent and the court of his response, if any, to any alternative directions proposed by the respondent. 6. Each of the parties is to advise the court whether the party requires an oral hearing on the proposed directions or is content for the court to make directions on the papers without an oral hearing.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where the applicant is serving a life sentence for murder – where the applicant became eligible for parole in 2006 and was granted parole on two previous occasions – where the applicant was returned to custody and the parole orders cancelled – where the applicant made the present application for parole which was refused by the Parole Board – where the applicant has applied for judicial review of the Board’s decision to refuse the parole application – whether the Board breached the rules of natural justice in its decision to decline the parole application ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the Board explained its decision to refuse the parole application in a statement of reasons – where the statement of reasons proceeds on a factually inaccurate understanding of the applicant’s criminal history, supposed violent responses to emotional distress and custodial behaviour – where the Board found the applicant displayed a poor response to previous community-based supervision orders – where the Board failed to consider expert evidence about recommended parole conditions– whether the Board failed to consider relevant considerations in deciding the risk the applicant would pose to the community…