SUPREME COURT OF QUEENSLAND
CITATION:
Nicholson v Parole Board Queensland [2024] QSC 232
PARTIES:
CLIVE ANTHONY NICHOLSON
(applicant)
v
PAROLE BOARD QUEENSLAND
(respondent)
FILE NO/S:
BS 9821 of 2023
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
3 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
5 September 2024
JUDGE:
Bowskill CJ
ORDERS:
The application for a statutory order of review is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – UNREASONABLENESS – where the applicant was convicted of the murder of his wife, whose body has never been found – where the applicant initially told police he disposed of his wife’s body in the ocean at Southport –where, in 2019, more than 15 years after the murder, the applicant changed his story and said that he had buried his wife’s body on a property in Cedar Gove – where, in July 2021, pursuant to s 193A of the Corrective Services Act 2006 (Qld), the Parole Board refused his application for parole after finding the applicant had not “cooperated satisfactorily in the investigation of the offence to identify the victim’s location” – where the applicant succeeded on an application for judicial review of that decision and the application was referred back to the Board for further consideration – where, in July 2023, the Board again found that the applicant had not given satisfactory cooperation and, subsequently, made a “no cooperation declaration” as a consequence of which the Board was required to refuse the parole application – whether the decision made by the Board in July 2023 was legally unreasonable because it lacked an evident and intelligible justification – whether the Board committed jurisdictional error by failing to discharge its statutory task of dealing with material aspects of the information before it with respect to the credibility of the applicant and the issue of satisfactory cooperation under s 175O of the Corrective Services Act 2006 (Qld)
Corrective Services Act 2006 (Qld), s 3(2), s 175B, s 175C,
s 175L, s 175O, s 175P(2), s 175Q, s 175R, s 176, s 193,
s 193A(2), s 216, s 217, s 490ZE
Judicial Review Act 1991 (Qld), s 20(2)(e), s 23(g)ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Armitage v Parole Board Queensland [2023] QCA 239Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Burridge v Parole Board Queensland [2021] QSC 244
Calanca v Parole Board Queensland [2019] QSC 34
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Francis v Crime and Corruption Commission [2015] QCA 218
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188
Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016]…
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- Case
- [2024] QSC 232
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the Board's decision to refuse parole was legally unreasonable and if the Board had committed a jurisdictional error by failing to adequately consider material aspects of the applicant's cooperation. The court found that the Board had not properly evaluated the credibility of the applicant's account or considered potential motivations for his change in story. This led to the Board's decision being set aside and remitted back for reconsideration. In July 2023, the Board again refused parole, this time making a "no cooperation declaration" and citing the applicant's lack of satisfactory cooperation.
The court examined the Board's July 2023 decision and found that it lacked an evident and intelligible justification. The Board's decision was based on the same flawed assessment of the applicant's cooperation, failing to properly consider the material aspects of his credibility and cooperation. The court held that the Board's decision was legally unreasonable and that the Board had not discharged its statutory task under section 175O of the Corrective Services Act 2006 (Qld). Consequently, the court set aside the Board's decision and remitted the application for parole back to the Board for further consideration in accordance with the law.
The orders of the court included dismissing the application for a statutory order of review. The decision highlights the importance of the Parole Board thoroughly evaluating the credibility and cooperation of applicants, especially in cases where the location of a victim's body is a critical factor in the parole decision-making process.
Orders
Orders of the court
The application for a statutory order of review is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The applicant spoke to police on 2 November 2017, before he became eligible for parole. As recorded in Nicholson 2021:“[13]Before Mr Nicholson became eligible for parole, he was interviewed by police. That occurred on 2 November 2017. Detective Senior Sergeant Knight and Detective Senior Constable Brown told Mr Nicholson they were interviewing him as his parole was coming due and there were ‘no body, no parole’ considerations.[5] Mr Nicholson agreed to speak to police about Mrs Nicholson’s whereabouts. [14]During the interview, Mr Nicholson maintained that he had taken Mrs Nicholson’s body to The Spit and placed her into the ocean on the western side of the land mass. Mr Nicholson drew a sketch showing the position where he had placed Mrs Nicholson in the water.”[6][5]A reference to Corrective Services Act 2006, s 193A.[6]Emphasis added. The transcript of the interview is exhibit SFJ-30 to Ms Furlan-Johns’ affidavit filed 27 September 2023. Unless otherwise indicated, references to exhibits in the footnotes below are exhibits to this affidavit; and references to page numbers are to the page numbers of the exhibits. The interview on 2 November 2017 went for about 45 minutes. The applicant descended into some detail about where he drove (“past main beach you go past Sea World … and where, where it almost gets to the end and comes back around, just there”), where he placed the deceased’s body (“on the Western side” of the spit, “[t]he eastern side of the ocean”, “the calm water side” (p 540)), that he remembered “walking through sand” (p 540), and that he had “rolled her up in a … drop sheet a plastic drop sheet and you know carried her out into the water…” (p 532). He referred to what he had seen on the tv about the “no body no parole legislation” and the need to show you have satisfactorily cooperated and said “[w]ell I gave that at the very beginning of the investigation 14 years ago” (p 534). He referred to being a “practising Christian”, and to a passage from the bible “which basically says if you are asked under oath you have to give it” (p 535). The applicant made his application for parole on 9 October 2018. Section 193A of the Corrective Services Act (as it then provided) applied to his application because the applicant is serving a period of imprisonment for a homicide offence and the body of the victim of the offence has not been located.[7] Section 193A(2) provided that the Board “must refuse to grant the application under section 193 unless the board is satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the victim’s location”. Section 193A(4) required the Board to ask the Commissioner of Police for a report about the prisoner’s cooperation in that regard. That occurred, and what is referred to as the “first prisoner cooperation report” was provided to the Board on 3 December 2018.[8][7]Section 193A(1), as at December 2018. See now s 175C of the Corrective Services Act 2006, definition of “no body-no parole prisoner”, which is in equivalent terms to s 193A(1).[8]Exhibit SFJ-15. See also the summary of the first prisoner cooperation report in Nicholson 2021 at [16]-[19].