Nicholson v Parole Board Queensland

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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 239

Attorney-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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Details
Case
[2024] QSC 232
Decision Date

CaseChat Overview and Summary

Nicholson, the applicant, challenged the Parole Board Queensland's refusal to grant him parole on the basis of his lack of cooperation in locating his deceased wife's body. The Board's decision was grounded in the statutory requirement under section 193A of the Corrective Services Act 2006 (Qld) that parole could not be granted unless the Board was satisfied that the applicant had cooperated satisfactorily in locating the victim's body. The applicant, who was serving a sentence for his wife's murder, had initially claimed that he disposed of her body in the ocean but later changed his story to say that he buried her body on a property in Cedar Grove. Despite efforts to validate his claims, no evidence supported his account, leading to the Board's conclusion that he had not cooperated satisfactorily.

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

As noted in Nicholson 2021 at [33], “[b]y way of summary, DSS Knight said this in the second cooperation report: ‘Truthfulness, completeness and reliability of information or evidence provided by the prisoner in relation to the victim’s locationIn the absence of locating the deceased’s body at the location and place nominated by NICHOLSON, it is difficult to assess the truthfulness, completeness and reliability of the information he provided. From 2003 until November 2017, NICHOLSON maintained a version that the deceased’s body had been disposed of in the seaway at the Southport Spit. NICHOLSON conceded in the interview conducted on 10 January 2019 that the information he provided on 2 November 2017 about the location of the deceased’s remains was not truthful. NICHOLSON’s disclosures that he buried the deceased in the Cedar Grove area are a significant departure from his previous versions. No evidence exists that the Cedar Grove area had ever been raised by NICHOLSON as a burial site. There exists no reference to Cedar Grove within any of the trial transcripts. To assist in identifying the alleged burial site, NICHOLSON was provided with maps and physically driven to the area to allow him a reasonable opportunity to locate the area he had described. All reasonable efforts to validate the truthfulness of NICHOLSON’s claims have failed. All information provided by NICHOLSON since 2003 has failed to result in the recovery of the deceased’s body. It therefore cannot be considered complete or reliable.The significance and usefulness of the prisoner cooperation None of the information provided by NICHOLSON between 2003 and 2019 is considered significant or useful. None of the information provided by NICHOLSON has resulted in any corroborative evidence to substantiate a site where the deceased’s body was disposed. Furthermore, on 10 January 2019 NICHOLSON stated that he had consciously provided false information by stating that he had disposed of the deceased at the Southport Spit. NICHOLSON proceeded to provide an alternative set of circumstances, claiming that he buried the deceased’s body in bushland at Cedar Grove. Inquiries were conducted to explore the further information provided by NICHOLSON, which again failed to result in locating any supportive evidence.’” The ultimate conclusion in this report is that the information provided by the applicant was not considered to be timely, reliable or complete. Following the receipt of the second prisoner cooperation report, the Board met a number of times to consider the applicant’s application. As already noted, the Board was not satisfied the applicant had cooperated satisfactorily and so was bound to refuse the application, under s 193A(2) of the Corrective Services Act. That decision of the Board, made on 13 July 2021, was set aside following a successful application for judicial review. The application succeeded on a ground that the Board had committed jurisdictional error by failing to consider, evaluate or deal with material aspects of the information before it, concerning the credibility of the applicant’s January 2019 account.[15] In some respects, that decision was based on a finding that the Board had misunderstood aspects of the evidence, in others that the Board did not consider aspects of Mr Nicholson’s account. It was also found that “there was no consideration (at least expressly) of any motivation that Mr Nicholson would have to lie about Cedar Grove”.[16][15]Nicholson 2021 at [67], [77]-[89].[16]Ibid at [86].

Decision

Reasons for decision

The applicant seeks orders that the decision be set aside and the application for parole be remitted to the Board “to be decided according to law”.Factual context of the application and the decision The background is set out in the previous decision of Davis J in Nicholson v Parole Board of Queensland [2021] QSC 325 (Nicholson 2021). Although initially the applicant denied any knowledge of what had happened to his wife, at his trial in February 2006 the applicant did not contest that he had killed his wife, nor that he did so by delivering a blow or blows with a hammer. He raised a number of arguments in his defence: that at the time he did the act which killed his wife, he did not intend to kill or do grievous bodily harm to her; he acted in self-defence; he acted under provocation; and the act which killed her was not a willed act.[4] All of those arguments were rejected by the jury, and he was convicted of murder.[4]Nicholson v Parole Board [2021] QSC 325 at [4]-[8]. Initially, the applicant told police he had disposed of his wife’s body in the ocean off the Southport Spit. As summarised by Davis J in Nicholson 2021:“[10] The Crown case was based substantially upon a series of letters which Mr Nicholson had written to various people, including police, before he was arrested and charged with Mrs Nicholson’s murder. These letters were prepared at a time when Mr Nicholson was apparently contemplating suicide. It is unnecessary to analyse the letters in any depth. However, in the letters: 1. he admitted to killing Mrs Nicholson; 2. he said that he disposed of her body in the ocean off the Southport Spit; 3. he said he was going to kill himself. That contemplated him also entering the ocean; 4. he spoke of concerns for his young daughter who was then about three years of age. [11]In one of the letters, Mr Nicholson spoke of hitting his wife with a hammer and: ‘Then my stupidity really took hold. I wrapped Julie in the sheets and doona and [hid] her in the walk-in robe, made sure [Mr Nicholson’s daughter] had gone back to sleep and dragged Julie down to the garage … I put her into the back of my ute. At some point she was still breathing. But by the time I returned to tidy her up in the ute, she had stopped. …’ Later:‘I should have called an ambulance, the police or someone but all I could think was being away from [Mr Nicholson’s daughter]. Hence all the stories, lies, attempts to make it appear Julie had left . …’And later:‘So I continued to lie and stupidly build a case that Julie had deserted the family home and I should try for sole custody.’ And later: ‘On the night of the Tuesday when [Mr Nicholson’s daughter] was asleep, I had wrapped Julie’s body and took her to the Spit and wrapped in a plastic drop sheet and floated her into the water. … I then went home, cleaned up the mess and later disposed of bloodstained sheets, hammer, etc at the tip with other rubbish from home.’ [12] Mr Nicholson’s reference to ‘stories’ and ‘lies’ referred to his activity between the time Mrs Nicholson was killed (about 15 July 2003) and the time the letters were written (17 August 2003). In that period, Mr Nicholson had made various statements to various people about his wife, including making a formal statement to police on 9 August 2003. Many things that he said were untrue and were designed to lead police and others to believe that Mrs Nicholson was alive but had deserted the family.”

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].