Patricia Byers v Parole Board of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PATRICIA BYERS v PAROLE BOARD OF SOUTH AUSTRALIA
[2021] SASC 53
Judgment of the Honourable Justice Stanley

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
An application for judicial review of a decision made by the Parole Board of South Australia (the Board) on 12 May 2020 refusing to release the applicant on parole pursuant to s 67 of the Correctional Services Act 1982 (SA) (the Act). The applicant is serving a life sentence for the offence of murder.
The applicant sought an order in the nature of certiorari setting aside the decision of the Board due to an error of law on the face of the record, and an order in the nature of mandamus ordering the Board to reconsider according to law its decision to reject the applicant’s application for parole. The applicant sought to quash the Board’s decision to refuse parole on the following grounds:
1.      The Board acted contrary to law as it was required and failed, to consider the transcript of the 1999 murder trial and to decide for itself whether the applicant is untruthful in the account she now gives about the circumstances of the murder of Mr Gottgens;
2. The Board acted contrary to law to the extent that it merely substituted the views of SAPOL (as expressed within the reports tendered pursuant to s 67(7)) as its own rather than forming its own independent view;
3.      The Board acted contrary to law in that its reasons for its decision to refuse parole are inadequate;
4.      The Board acted contrary to law as it should have determined the applicant’s untruthfulness on the Briginshaw standard of proof;
5.      The Board erred in that it was not reasonably open to it on the evidence to find that the applicant was untruthful as to the circumstances of the offence; and
6.      The Board erred in failing to take into account a relevant consideration.
Held:
1. In relation to Ground 4, the Applicant has misconceived the nature of the Briginshaw principle and the nature of the jurisdiction being exercised pursuant to s 67 of the Act. The Briginshaw principle applies to curial proceedings or quasi-curial proceedings such as are heard and determined by administrative tribunals. It does not apply to administrative decision makers such as the Board.
2.      In relation to Ground 3, the Board is subject to a statutory duty to provide reasons. That duty to provide reasons is narrowly prescribed. The Parole Board is not required to provide reasons that extend beyond informing the prisoner of the nature of the decision and the basis upon which it was made, sufficient for the prisoner whose interests are determined and affected by its decision to know what he or she needs to do to improve the prospects of succeeding in any future application for parole. The reasons of the Board in this case were sufficient to inform the applicant of the basis upon which the Board made the ultimate decision to refuse parole.
3.      In relation to Ground 1, 2, 5 and 6, the Board was entitled to adopt the SAPOL evaluation of the applicant’s cooperation in the investigation of Mr Gottgens’ murder. In doing so, it did not act unreasonably. Further, that the prosecution invited the jury to find the applicant guilty, even if it was not satisfied of the precise circumstances of Mr Gottgens' death, does not evince an approach by the Board that is contrary to law. The Board was not bound to accept the applicant’s truthfulness in the absence of contradictory evidence.
4.      Even if any of the grounds of review relied upon by the applicant had been established, there was still a proper basis for the Board to exercise the discretionary power reposed in it to refuse the application for parole.
Correctional Services Act 1982 (SA) s 67; Prisoners (Interstate) Transfer Act 1982 (SA), referred to.
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; Minister for Immigration & Citizenship v Li & Anor (2013) 249 CLR 132, applied.
Briginshaw v Briginshaw (1928) 60 CLR 336, distinguished.
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 68; Sun v Minister for Immigration and Border Protection [2016] FCAFC 62; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Bain v The State of South Australia [2020] SASC 234; Agius v The Parole Board of South Australia [2020] SASC 225; G v H (1994) 181 CLR 387; Public Service Board of NSW v Osmond (1986) 159 CLR 656; Wainohu v New South Wales [2011] HCA 24, considered.

PATRICIA BYERS v PAROLE BOARD OF SOUTH AUSTRALIA
[2021] SASC 53
STANLEY J:
Introduction

This is an application for judicial review of a decision made by the Parole Board of South Australia (the Board) on 12 May 2020 refusing to release the applicant on parole pursuant to s 67 of the Correctional Services Act 1982 (SA) (the Act). The applicant is serving a life sentence for the offence of murder.
The applicant seeks an order in the nature of certiorari setting aside the decision of the Board due to an error of law on the face of the record, and an order in the nature of mandamus ordering the Board to reconsider according to law its decision to reject the applicant’s application for parole.
Section 67
Section 67 of the Act provides:
67—Release on parole by application to Board
(1) This section applies to a prisoner if—
(a)     section 66 does not apply to the prisoner; and
(b)     a non-parole period has been fixed for the prisoner; and
(c)     the prisoner is not serving a sentence of indeterminate duration.
(2) If this section applies to a prisoner—
(a)     the prisoner; or
(b)     the CE, or any employee of the Department authorised by the CE, may apply in the prescribed manner to the Board for the prisoner's release on parole.
(3) An application cannot be made under subsection (1) more than six months before the expiration of the non-parole period fixed in respect of the prisoner's sentence.
(3a) The paramount consideration of the Board when determining an application under this section for the release of a prisoner on parole must be the safety of the community.
(4) The Board must also take the following matters into consideration when determining an application under this section:
(a)     any relevant remarks made by the court in passing sentence; and
(b)     the likelihood of the prisoner complying with the conditions of parole; and
(c)     where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment (but the Board may not substitute its view of these matters for the view expressed by the court in passing sentence); and
(ca)    if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the impact that the release of the prisoner on parole is likely to have on the registered victim and the registered victim's family; and
(d)     the behaviour of the prisoner while in prison or on home detention; and
(e)     the behaviour of the prisoner during any previous release on parole; and
(f)      any reports tendered to the Board—
(i) on the social background, or the medical, psychological or psychiatric condition, of the prisoner;
(ii) from the CE (including recommendations (if any) as to the conditions that should, in the opinion of the CE, be imposed by the Board on the prisoner's release on parole); and
(g)     the probable circumstances of the prisoner after release from prison or home detention; and
(h)     any other matters that the Board thinks are relevant.
(5) Subject to subsections (6) to (7b) (inclusive), the Board may, on an application under this section, order that a prisoner be released from prison on parole on a day specified in the order.
(6) Without derogating from subsections (3a) and (4), the Board must not order that a prisoner serving a sentence of life imprisonment for an offence of murder be released on parole unless the Board is satisfied that the prisoner has satisfactorily cooperated in the investigation of the offence (whether the cooperation occurred before or after the prisoner was sentenced to imprisonment).
(7) For the purposes of subsection (6), the Board must take into account any report tendered to the Board from the Commissioner of Police evaluating the prisoner's cooperation in the investigation of the offence, including—
(a)     the nature and extent of the prisoner's cooperation; and
(b)     the timeliness of the cooperation; and
(c)     the truthfulness, completeness and reliability of any information or evidence provided by the prisoner; and
(d)     the significance and usefulness of the prisoner's cooperation.
(7a) If the Board orders the release on parole of a prisoner who is serving a sentence of life imprisonment—
(a)     the Board must provide a copy of the order and a written statement of the reasons for making the order to the following persons:
(i) the CE;
(ii) the prisoner;
(iii) the Attorney-General;
(iv) the Commissioner of Police;
(v) the Commissioner for Victims' Rights;
(vi) if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the registered victim, unless the victim has indicated to the Board that he or she does not wish to be so notified; and
(b)     the day of release specified in the order must be a day that falls after the period within which an application for review of the order under Division 4 may be made.
(7b) If an order for release on parole of a prisoner who is serving a sentence of life imprisonment is stayed by operation of section 77F(1) (as a result of an application for review of the order being made under Division 4), the release of the prisoner will not take effect on the day specified in the order (and, a copy of the application for review served on the CE is sufficient authority for the continued detention of the prisoner in custody pending determination of the review).
(8) The Board cannot specify a release date under this section that is earlier than the day on which the prisoner's non-parole period expires. The Board must, not more than 30 days after refusing an application by a prisoner for release on parole, notify the prisoner in writing of—
(a)     its refusal; and
(b)     the reasons for its refusal and of any matters that might assist the prisoner in making any further application for parole; and (c) a date, not less than six months or more than one year after the date on which the Board refuses the application, before which the Board will not accept any further application by the prisoner for release on parole.
(10) The Board is not obliged to (but may, if in its opinion good reason exists for doing so) accept a further application by a prisoner for release on parole before the date notified by the Board under subsection (9).
(11) For the purposes of this section, a reference to an offence of murder includes—
(a)     an offence of conspiracy to murder; and
(b)     an offence of aiding, abetting, counselling or procuring the commission of murder.
The applicant
In 1999 the applicant was found guilty after a trial by jury of the murder of her partner, Carel Theodoris Gottgens (Mr Gottgens). The prosecution case was that he was murdered between 2 and 7 July 1990. She was sentenced to life imprisonment with a non-parole period of 13 years commencing on 6 March 1999. Her subsequent appeal against conviction was dismissed. The High Court refused special leave to appeal that judgment. At the time of her trial the applicant had been held in custody since 1993 after she was charged with the attempted murder of her former partner, John Asquith (Mr Asquith). In 1994 she was found guilty and sentenced to 12 years imprisonment with a non-parole period of three years. A subsequent appeal against conviction was dismissed.
In 2006 the applicant contested civil proceedings jointly brought by the State of Queensland and Mr Gottgens’ daughters, seeking to transfer Mr Gottgens’ estate out of the applicant’s name. It was asserted that the applicant had fraudulently acquired control of the estate by forging Mr Gottgens’ signature on transfer documents after his murder. The Supreme Court of Queensland found that the transfer had been caused by the applicant’s forgery. Throughout these proceedings the applicant maintained her innocence of the murder of Mr Gottgens.
In 2009 the applicant was transferred to South Australia pursuant to the Prisoners (Interstate Transfer) Act 1982 (SA). Reports received by the Board from the Department for Correctional Services as to the applicant’s institutional record consistently report that she is a compliant and low security prisoner who requires minimal supervision. This is consistent with the reports received by the Board concerning the applicant’s correctional record in Queensland.
Application for parole
On 4 March 2019 the applicant applied to the Board for release on parole pursuant to s 67 of the Act. In considering this application the Board had before it materials produced in relation to earlier unsuccessful applications for parole made by the applicant in 2010, 2011 and 2015. By the time the 2015 application was considered by the Board the Act had been amended to introduce into s 67 subsections (6) and (7). As a result, in April 2016 South Australia police (SAPOL) wrote to the applicant requesting her cooperation in the investigation of the murder of Mr Gottgens. Police interviewed the applicant in April and July 2016 as part of that investigation. SAPOL were assisted in their investigation by Queensland Police, who flew to Adelaide to interview the applicant.
SAPOL provided two life sentence prisoner cooperation reports to the Board in May and July 2016 detailing their investigation and evaluation of the applicant’s cooperation. A further life sentence prisoner cooperation report was provided to the Board by SAPOL on the present application in September 2019.
SAPOL reported to the Board that during her interview the applicant confessed to the murder of Mr Gottgens and provided an account of the circumstances of her offending, including the location of the murder and the likely whereabouts of Mr Gottgens’ remains. The applicant told police that in August or September 1990 she had struck Mr Gottgens in the head with a machete when he was sitting on the end of a wharf. He fell into the water and was never seen again.
SAPOL does not consider that the applicant has been truthful in the account she has provided of the circumstances of Mr Gottgens’ murder. SAPOL suspects that the applicant murdered Mr Gottgens in early July 1990 by shooting him when he was in his bed.
The police investigation was unable to locate the bed. There was evidence of a new bed being purchased on 6 July 1990. At trial the Crown relied on DNA evidence. DNA was extracted from a bloodlike substance that was found in the bedroom. The results of the DNA testing found that it was 7,000 times more likely that the DNA detected in the bloodlike samples from the bedroom came from Mr Gottgens than from an unknown person in the community.
At her trial the Crown conceded that the DNA evidence standing alone was not conclusive, but contended that when considered with other evidence, was sufficient for the jury to find the applicant guilty beyond reasonable doubt. However, the Crown case was that it was not necessary for the jury to be satisfied beyond reasonable doubt that the applicant had murdered Mr Gottgens in his bed so long as they were satisfied beyond reasonable doubt that she had murdered him. The prosecution relied on circumstantial evidence of the applicant’s conduct after the disappearance of Mr Gottgens including, in particular, her dealings with his property. After his disappearance she forged documents to transfer his property into her name and spent money belonging to him on herself. The applicant obtained a significant financial benefit.
The applicant’s defence was that Mr Gottgens had left her after the breakdown of their relationship and was still alive, his whereabouts unknown. She gave evidence he telephoned her some years after his disappearance. She also gave evidence that Mr Gottgens had taken the bed when he left.
At her trial for the murder of Mr Gottgens, Mr Asquith gave evidence that he had commenced a sexual relationship with the applicant within days of Mr Gottgens going missing. He gave evidence that the applicant had told him that Mr Gottgens had left her and all he had taken with him was the bed. At her earlier trial for the attempted murder of Mr Asquith, the Crown case was that the applicant had shot Mr Asquith in the head while he was asleep in bed. This crime was committed subsequent to Mr Gottgens’ murder.
On 21 May 2019 the Board received a letter from the Commissioner for Victims’ Rights advising that Mr Gottgens’ family opposed a grant of parole. The Board also received a parole report from the Department of Correctional Services which did not support a grant of parole. The Board also received a report from Dr Tim Connell and Dr Pasquale Alvaro of the Forensic Mental Health Service. They assessed her intellectual capacity and memory. They considered the applicant is unlikely to have general cognitive deficits that would prevent her from functioning in the community. Further, while she had minimal signs of memory impairment, that was unlikely to cause unusual difficulties. Accordingly, they considered the applicant capable of independent decision making. Although it was possible she could experience difficulties due to other factors resulting from longterm incarceration. The applicant made a number of written submissions to the Board in support of her 2019 application for release on parole. In addition, the Board interviewed the applicant in the presence of her lawyer on 12 June 2019. The applicant’s lawyer also provided the Board with a copy of extracts from the transcript of the 1999 murder trial consisting of counsel’s addresses to the jury, the trial judge’s summing up and a complete copy of the transcript of the 1994 attempted murder trial. On 31 October 2019 the Board conducted a further interview with the applicant in the presence of her lawyer.
Reasons of the Board
On 15 May 2020 the Board provided the following reasons for refusing parole:
Ms Byers seeks release on parole. She is serving a life sentence for murder having initially served a sentence for attempted murder. Her non-parole period has expired.
Ms Byers initially served a finite sentence for the attempted murder of her partner John Asquith. As a result of a publicity relating to that offence, investigations were renewed relating to the disappearance of her former partner Carel Gottgens. She was ultimately charged with and convicted for his murder. Mr Gottgens’ body was never recovered. Ms Byers appealed against her conviction for murder. That appeal was dismissed in April 2000. She was involved in protracted litigation where the two daughters of Mr Gottgens launched a joint bid to transfer Mr Gottgens’ estate out of the applicant’s name. When asked by the judge trying that litigation whether she killed Mr Gottgens, she replied, “In my view he is not dead. In 1992 (two years after his disappearance) he rang me. I know he is still alive.” Ms Byers lost the case, the court having found the transfer of land previously registered in the name of Mr Gottgens to Ms Byers was caused by Ms Byers’ forgery. There was also evidence that she fraudulently used his credit cards after his disappearance.
In relation to the attempted murder of Mr Asquith, there was evidence that she had fraudulently arranged insurance policies on his life.
In an earlier application to the Parole Board on 12 November 2010, Ms Byers explained her involvement in Mr Gottgens’ disappearance as follows:
“I have no excuses to make over what happened to cause me to be convicted of his murder. I could have sought help, but instead was thinking of myself only. I was complicit in his disappearance. I became afraid of his associates, and suspected activities as the Federal Police had been asking him questions. I just wanted for his and his associates to disappear and get out of my life.”
She advised the Parole Board in December 2011 that Mr Gottgens was involved in people smuggling. She said she gave his ‘associates’ information which enabled them to kill Mr Gottgens.
She underwent a psychological assessment in March 2012. She reported to the psychologist that Mr Gottgens had ‘enemies’ through his illegal activities that were planning to take his life. She said she requested that he move out the weekend she was to be away at an event and she utilised this opportunity to arrange for his associates to gain access to her home whilst she had an alibi in order for them to commit the murder.
She said that her relationship deteriorated due to Mr Asquith’s increased drinking and depression. She reported that together they had decided to commit insurance fraud to resolve their financial stressors resulting in her later conviction for attempted murder. It is difficult to think that Mr Asquith somehow consented to being shot. Ms Byers subsequently reported to the Parole Board that the arrangement was that she would say that he had fallen overboard. She also told the psychologist that Mr Gottgens had been involved in illegal activities such as people smuggling. In relation to Mr Asquith, he was meant to swim ashore and she would shoot bullets into the cabin of the boat. She would then tell the authorities that pirates had boarded their bat, shot Mr Asquith and dumped his body. They would then claim the insurance money. Mr Asquith refused to continue with that fraud. She said she became frustrated and angry and shot him in the head.
S 67(6) of the Correctional Services Act 1982 (SA) provides:
Without derogating from subsections (3a) and (4), the Board must not order that a prisoner serving a sentence of life imprisonment for an offence of murder be released on parole unless the Board is satisfied that the prisoner has satisfactorily cooperated in the investigation of the offence (whether the cooperation occurred before or after the prisoner was sentenced to imprisonment).
For the purposes of subsection (6), the Board must take into account any report tendered to the Board from the Commissioner of Police evaluating the prisoner’s cooperation in the investigation of the offence, including:
(a)     the nature and extent of the prisoner's cooperation; and
(b)     the timeliness of the cooperation; and
(c)     the truthfulness, completeness and reliability of any information or evidence provided by the prisoner; and
(d)     the significance and usefulness of the prisoner's cooperation.
The Commissioner for Police has provided a comprehensive report to the Parole Board relating to Ms Byers. The police assert that she has failed to co-operate. The last approach by the police to Ms Byers seeking her co-operation was 29 August 2019. Previous reports were submitted by SAPOL to the Parole Board on 30 May 2016 and 14 September 2019. SAPOL report that Ms Byers has continued to provide an account of her offending that is not truthful and lacks reliability. SAPOL takes the position based on the information and evidence at Ms Byers’ trial. SAPOL further note in the context of timeliness that Ms Byers did not make any admissions or provide any details about her offending until after s 67 was amended. When interviewed by the Parole Board on 7 March 2017, she was asked why she had not disclosed that she had in fact killed her victim. Her response was “because I always hoped that somehow or other, I’d be able to get the case back to court and I’d then be able to bring out what was actually going on.” She went on to say “I wanted to find out what – the Federal Police knew something was going on, because they turned up on my doorstep and they also turned up at – one of the boats was anchored and in NSW and they turned up there to see him when I actually happened to be on board because I came down to see him and sort out – try and sort some stuff out and find out because he wasn’t coming home, he was going straight to Thailand and he wasn’t back and the property wasn’t finished properly, it needed to be finished off and I’d been left with all the work to do”. She also advised the Board on that occasion “it just kept escalating and getting worse and worse and when he moved out – because I’d been telling them where they could find him and gave him the number of the car and everything, the police knew where to find him.”
There is no doubt that Ms Byers’ defence at trial was that her victim had gone to Thailand and that he was still alive. The evidence led by the police at trial was that Ms Byers murdered her victim in his bed at the Yatala home. There was forensic evidence including blood and DNA. The evidence given at her trial was that she had told John Asquith (a man she started a sexual relationship with within days of her victim going missing) that the victim had left her and that all he had taken was the bed. She had ordered a new bed on 5 July 1990. In 2016, she admitted to killing her victim. The police say that it was then apparent to her that there was a need to provide a new explanation of what happened to the bed. Her new version then was that she gave the bed to a family member and did not raise this at trial because she did not want to involve that family member in the trial. The police assert that explanation was a recent invention and giving the bed to a family member, if true, could have simply been said at trial without harming her defence, given that her defence was simply that her victim had left.
Ms Byers told the police in 2016 that she murdered her victim by hitting him on the head on a wharf. He fell in the water and his body disappeared. The Parole Board asked Ms Byers on 31 October 2019 why she wanted to bring the trial back to court because on her current explanation, it would not have resulted in a not guilty verdict. Her response was “I wasn’t asking for a non-guilty verdict; I would have been looking at less to get the truth out so it might have been a manslaughter charge or something because I didn’t intend for him to fall in the river and drown. I was just going to give him a whack on the head, but I must have hit him in the side of the head or something”. She was asked by the Board why she did not give that evidence at trial, and her response was “no idea, I have no idea”. She nevertheless submitted to the Parole Board that she has always taken full responsibility.
Mr Vadasz has provided submissions to the Parole Board after being provided with the SAPOL report. He asserts that the SAPOL report erred in concluding beyond reasonable doubt that the deceased had been killed in a specific location and thereby rejecting the applicant’s statement as to the place of his death as untruthful.
The Parole Board is bound by the jury verdict which was predicated upon the evidence relied upon by SAPOL. Mr Vadasz submits that the jury was not asked to be satisfied as to the place of her victim’s death. However, Ms Byers did not, at trial, put in the current version which she submits to be the correct version of what happened. There was no other evidence put to the jury other than the evidence linking her victim’s death with his room. The issue of the bed was clearly before the jury. It is not for the Parole Board to embark on an analysis of the evidence led at trial as compared with Ms Byers’ current assertion about what she said occurred.
The Parole Board has had regard to the timeliness of Ms Byers’ admission relating to the killing.
On 19 April 2016 SAPOL wrote to Ms Byers asking her to cooperate in the investigation by disclosing:
·the whereabouts of the remains of her victim;
·the circumstances of the murder of her victim;
·the identity of any and all accomplices involved before, during or after the murder of her victim; and
·the location of any and all material objects relevant to the murder of her victim, namely any murder weapon.
Her then account to the police was that the victim was sitting on a wharf with his legs over the edge. She went to her car, retrieved a machete and walked back to the victim before hitting him with the machete which had been in a wooden sheath. He fell into the water and was never seen again.
There is considerable material from the police to the effect that her account is unreliable and untruthful.
The Parole Board is of the view that Ms Byers has not been truthful. Whilst that is not determinative of our ultimate decision, it nevertheless is relevant of issues of rehabilitation and risk. In our view there remains a capacity in Ms Byers to deceive and that has not been addressed.
The Parole Board is bound by legislation in the circumstances of this case. The Parole Board considers that it cannot approve Ms Byers’ release having regard to the provisions of s 67 of the Correctional Services Act 1982 (SA) as amended.
Ms Byers has a very good record in the Adelaide Women’s Prison. She has excellent institutional reports and we have received letters of support for her.
When the Parole Board previously was prepared to recommend Ms Byers’ release to his Excellency the Governor and Executive Council, we did not have the information that has come to light in 2016. That, as we have said, causes us concern relating to Ms Byers’ capacity to deceive and therefore, in our view, that elevates her risk. It is also an issue in terms of potential compliance because the Parole Board would expect any prospective parolee to have an ability to be open and truthful about all matters with a Community Corrections Officer, including the circumstances of her offending which include Attempted Murder, Murder, Forgery and Fraud. We are now of the view that there remain matters which need to be addressed before the Parole Board could feel comfortable that Ms Byers would be compliant in the sense of engaging truthfully with a Community Corrections Officer, nor are we confident that her level of risk has been reduced to such an extent that the Parole Board considers her suitable for release. We would encourage Ms Byers to continue to work on those issues.
Grounds of review

The applicant seeks to quash the Board’s decision to refuse parole on the following grounds:
·The Board acted contrary to law as it was required and failed, to consider the transcript of the 1999 murder trial and to decide for itself whether the applicant is untruthful in the account she now gives about the circumstances of the murder of Mr Gottgens;
·The Board acted contrary to law to the extent that it merely substituted the views of SAPOL (as expressed within the reports tendered pursuant to s 67(7)) as its own rather than forming its own independent view;
·The Board acted contrary to law in that its reasons for its decision to refuse parole are inadequate;
·The Board acted contrary to law as it should have determined the applicant’s untruthfulness on the Briginshaw standard of proof;
·The Board erred in that it was not reasonably open to it on the evidence to find that the applicant was untruthful as to the circumstances of the offence; and
·The Board erred in failing to take into account a relevant consideration.
At the hearing of the application the applicant’s primary contention was that in deciding whether she had satisfactorily cooperated in the investigation of Mr Gottgens’ murder the Board merely adopted the reports of the police and did not undertake its own evaluation of whether the account she had given to the Board since 2016 of the circumstances of Mr Gottgens’ murder is untruthful. She submitted the Board erred in failing to have regard to relevant material. The Board should have grappled with the evidence of how the prosecution conducted her trial. As it transpired the police reports were inaccurate. The prosecution did not conduct the trial on the basis the applicant killed Mr Gottgens when he was in bed. In the absence of contradictory evidence her account of killing Mr Gottgens was a reasonable possibility. The Board erred in not concluding that she had satisfactorily cooperated in the investigation into his murder.
The Court’s supervisory jurisdiction
On an application for judicial review the Court is exercising a supervisory jurisdiction. The Court does not review the merits of the decision, let alone substitute its own view as to how the decision or discretion being exercised by the Board ought to have been made or exercised. It is important to recognise that within the boundaries of the relevant power conferred on the Board, there is generally an area of decisional freedom within which reasonable minds may reach different conclusions about the correct or preferable decision. The decision that falls within this area of decisional freedom is not legally unreasonable. In order to identify the width and boundaries of this area of decisional freedom it is necessary to construe the Act. The Court looks to the scope and purpose of the Act conferring the relevant statutory power. In the present context, it is necessary to have regard to the statutory scheme as prescribed by s 67.[1]
[1] Agius v The Parole Board of South Australia [2020] SASC 225 at [45]-[46].
The Act provides a statutory scheme for deciding whether a prisoner should be released on parole. Its purpose and real object is to encourage the rehabilitation of prisoners insofar as that is consistent with the paramount consideration, which is the protection of the safety of the community.[2] The scope and nature of the powers conferred by s 67 on the Board are to be construed in this context.
[2] Bain v The State of South Australia [2020] SASC 234 at [43].
The ultimate issue for the Board was whether the applicant was suitable for release on parole, taking into account as a whole the mandatory considerations prescribed by s 67(3a), (4), (6) and (7). The applicant’s grounds of review are directed to the Board’s finding pursuant to s 67(6) and (7). The Board was not satisfied that the applicant had satisfactorily cooperated in the investigation of the offence of the murder of Mr Gottgens. The terms of s 67(6) imposes a necessary condition on the exercise of the Board’s discretion to release on parole a prisoner to whom s 67(6) applies. Accordingly, in circumstances where the Board was not satisfied that the applicant had satisfactorily cooperated in the investigation of that offence, it was bound by s 67(6) not to release the applicant on parole.
In Timbarra Protection Coalition Inc v Ross Mining NL[3] Spigelman CJ, with whom Mason P and Meagher JA agreed, said:[4]
[3] [1999] NSWCA 8, (1999) 46 NSWLR 55.
[4] [1999] NSWCA 8 at [39]-[44], (1999) 46 NSWLR 55 at 64-65.
Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes “jurisdictional fact” as some kind of “doctrine” is, in my opinion, misconceived. The appellation “jurisdictional fact” is a convenient way of expressing a conclusion — the result of a process of statutory construction.
Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation, but not itself determine the actual existence or non-existence of the relevant facts.
Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — “opinion”, “belief”, “satisfaction” — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law,3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo at 198C. Where such words do not appear, the construction is more difficult.
As Sir Frederick Jordan said in Ex parte Mullen; Re Hood at 298:
“When the jurisdiction of a court is limited, the question whether a particular matter is one the actual existence of which, notwithstanding any decision of that court, is a condition of its having jurisdiction to proceed to determine the matters which lie within its general jurisdiction, or is merely one of the matters which arise for its decision in the exercise of its general jurisdiction, is frequently one of considerable difficulty. It commonly arises in relation to a statute conferring jurisdiction in which the legislature has made no express pronouncement on the subject, and in which its intention has therefore to be extracted from implications found in inferences to be drawn from the language it has used.”
The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions.
In Australian and International Pilots Association v Fair Work Australia[5] Perram J said:[6]
The principles in this area are well-established. In Australian Heritage Commission v Mount Isa Mines Ltd, the High Court unanimously adopted at 303 the dissenting analysis of Black CJ on this issue in the Full Court below. That judgment, which is reported as Australian Heritage Commission v Mount Isa Mines Ltd, establishes four propositions which are presently relevant: first, whether a statutory power is to be read as subject to the formation of an opinion about the existence of a matter by the decision maker or, instead, by the bare existence of the matter itself is a question of statutory construction (at 466); secondly, the resolution of that question is assisted by an examination of the nature of the task reposed in the decision maker — where that task is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision maker would have power to make its own determination of that matter (at 466); thirdly, the inconvenience which may attend the conclusion that a matter is a jurisdictional fact is itself an indicator that this is unlikely to have been what Parliament intended (at 466); and, finally, the specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand (at 467). The High Court’s reasoning in Plaintiff M70/2011 v Minister for Immigration and Citizenship at [57]-[58] per French CJ, [107]-[109] per Gummow, Hayne, Crennan and Bell JJ and [164] per Heydon J is consistent with this distillation, although the result in that case may show that its application is not always easy or without controversy.
[5] [2012] FCAFC 65, (2012) 202 FCR 200.
[6] [2012] FCAFC 65 at [147], (2012) 202 FCR 200 at 233-235.
In Corporation of the City of Enfield v Development Assessment Commission & Anor[7] Gleeson CJ, Gummow, Kirby and Hayne JJ, in their joint reasons, said that where a statutory provision is expressed to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision maker.[8] In Minister for Immigration and Citizenship v SZMDS[9] Crennan and Bell JJ held that the issue of the “reasonableness” of an administrative decision has often been considered in circumstances where a public officer must be “satisfied” of some fact or circumstance. Their Honours said:[10]
[7] [2000] HCA 5, (2000) 199 CLR 135.
[8] [2000] HCA 5 at [34], (2000) 199 CLR 135 at 150.
[9] [2010] HCA 16, (2010) 240 CLR 611.
[10] [2010] HCA 16 at [122]-[125], [128]-[129], (2010) 240 CLR 611 at 644-647.
Just as the unreasonableness of a result was referred to in Avon Downs, correspondingly, the “reasonableness” of a decision has often been considered in circumstances where a public officer must be “satisfied” of some fact or circumstance. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd, it was not suggested that such an officer must prove his or her satisfaction. However it was found that a requirement that a public officer be “satisfied” of certain facts or have “reasonable cause” to believe facts imports a requirement that the opinion is one that could be formed by a reasonable person. The Chief Justice went on to state:
“If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”
Further, satisfaction of the existence of facts must amount in point of law to what an empowering provision prescribes or specifies. As explicated subsequently by Gibbs J in Buck v Bavone, this means a decision-making authority which must be satisfied of certain facts “must act in good faith; it cannot act merely arbitrarily or capriciously”. His Honour went on to say that even if certain specified errors could not be established “the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”. Such formulations convey the idea that a court should not lightly interfere with administrative decision-making.
Judicial review has commonly been relied on to set aside a discretionary decision which “is so unreasonable that no reasonable authority could ever have come to it” or decisions “which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful”. As remarked by Gaudron J in Abebe v The Commonwealth:
“[I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.”
This Court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.
More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as “Wednesbury unreasonableness”. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as “illogical or unreasonable, or irrational” may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as “irrational” might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.
Secondly, the word “irrationality” is conventionally defined as “the quality of being devoid of reason” (114), “illogicality” is conventionally defined as “unreasonableness” and “unreasonableness” is conventionally defined as “irrationality”.
…
If, despite the undeniable semantic overlap between “irrationality”, “illogicality” and “unreasonableness”, “Wednesbury unreasonableness” is confined to the exercise of a discretion in circumstances where no reasons are required, then the approach articulated in SGLB emphasised above can be seen as occupying somewhat different ground. On the other hand, to the extent that a standard of reasonableness, of wide application to decision-making, has emerged from Wednesbury, there will be inevitable overlap with that standard and a standard of rationality.
It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in Applicant S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and Applicant S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?
These reasons have subsequently been approved and followed by French CJ and Gageler J in Minister for Immigration & Citizenship v Li & Anor.[11]
[11] [2013] HCA 18 at [29] and [89], (2013) 249 CLR 132 at 351 and 370.
In considering whether the Board is satisfied of the requisite fact prescribed by s 67(6), the Board is subject to the mandatory requirement to take into account any report tendered to the Board pursuant to s 67(7). Section 67(7) requires the Board, for the purpose of s 67(6), to take into account any report tendered to the Board from the Commissioner of Police evaluating the prisoner’s cooperation in the investigation of the offence. The only constraint on the Board is that it must act reasonably in deciding whether it is satisfied of the requisite fact by reference to the material before it.
In deciding whether a particular decision is reasonable or unreasonable the issue is essentially whether the decision is such that no reasonable decision maker could have made it, or whether the decision lacks an evident and intelligible justification.[12] It is not enough to transgress the boundaries of reasonableness that the decision-maker has given more or less weight to certain matters than the reviewing court would have done, or that the decision maker has made an evaluative judgment with which the court disagrees.[13]
[12] Agius v The Parole Board of South Australia [2020] SASC 225 at [44].
[13] Agius v The Parole Board of South Australia [2020] SASC 225 at [47].
Accordingly, I turn to a consideration of the applicant’s grounds of review. Given the way in which the application was argued it is convenient to deal with some of the grounds together.
Ground 4
The applicant submits that the Board erred in that it acted contrary to law because it did not determine the issue of the applicant’s truthfulness in accordance with the Briginshaw standard of proof.
I do not accept this submission. It misconceives the Briginshaw principle and the nature of the jurisdiction being exercised pursuant to s 67.
The operation of the Briginshaw principle was explained in the joint judgment of Deane, Dawson and Gaudron JJ in G v H[14] as follows:[15]
It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that
“[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”.
Thus, if there is an issue of “importance and gravity”, to use the words of the trial judge, due regard must be had to its important and grave nature.
[citation omitted].
[14] (1994) 181 CLR 387.
[15] (1994) 181 CLR 387 at 399.

It is a rule of evidence as to the exercise of judicial power requiring a court to proceed cautiously in civil proceedings where a serious allegation is made. The principle obliges the court in those circumstances to weigh the strength of the evidence required to prove a fact in issue to the ordinary civil standard. It does not raise the standard nor introduce a third standard of proof between the balance of probabilities and beyond reasonable doubt.[16]
[16] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2].
The Briginshaw principle applies to curial proceedings or quasi-curial proceedings of the kind heard and determined by administrative tribunals. It does not apply to administrative decision makers such as the Board.[17] Administrative decision makers such as the Board do not decide whether an allegation made in inter parte proceedings has been proved.
[17] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [63]-[71].
For the purposes of s 67(6) the issue to be determined is whether the Board was satisfied that the applicant had satisfactorily cooperated in the investigation of the offence of murder.
On an application for judicial review the Court is concerned with whether the Board, as a matter of fact, had reached that state of satisfaction and, if it had done so, it had done so reasonably.
In my view the issue upon which the Board needed to be satisfied did not attract the Briginshaw principle.
In any event, as a matter of statutory construction, even if I am wrong about the Board not proceeding on the basis that issues of fact had to be decided to a particular standard of proof, it would be the applicant who bore the persuasive burden of satisfying the Board that she had satisfactorily cooperated in the investigation of the offence of murder. The application of the Briginshaw principle in those circumstances would not assist the applicant. Be that as it may, more fundamentally, the Board did not decide to refuse the applicant release on parole because of the application of s 67(6). For reasons which I will come to, it is clear that the ultimate decision of the Board to refuse the application for parole was based on considerations found in s 67(3a) and (4). Accordingly, this ground of review is moot.
Ground 3
The applicant submits that the Board acted contrary to law in that its reasons for deciding to refuse parole are inadequate.
I do not accept this submission. At common law an administrative body such as the Board is not subject to the obligation imposed upon a court to provide adequate reasons for its decision.[18] The provision of adequate reasons is a fundamental aspect of the judicial function.[19] It is not a fundamental aspect of the exercise of the power of administrative decision makers. The reasons of an administrative decision maker are meant to inform.[20] On an application for judicial review the focus is generally on the outcome, or the decision itself, and whether it falls outside the bounds of legal reasonableness.[21] As such, even in cases where there are no reasons given for the relevant decision, or where reasons are given but do not disclose any error, it may be appropriate to draw an inference or conclusion of unreasonableness simply from the outcome or decision itself.[22] However, where reasons for decision are given, they may assist in understanding the decision making process, and in determining whether the decision is legally unreasonable.[23] But the decision maker’s reasons should not be construed too finely with an eye too keenly attuned to the perception of error.[24]
[18] Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 662-663.
[19] Wainohu v New South Wales [2011] HCA 24 at [44], [54]-[56] and [92], (2011) 243 CLR 181 at 209, 213-215 and 225.
[20] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
[21] Agius v The Parole Board of South Australia [2020] SASC 225 at [48].
[22] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].
[23] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45].
[24] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In this case however, the Board is subject to a statutory duty to provide reasons. That duty to provide reasons is narrowly prescribed. Section 67(9) provides that when a decision is made by the Board to refuse parole, the Board must notify the prisoner in writing, inter alia, of its refusal and the reasons for its refusal, including any matters that might assist the prisoner in making any further application for parole. The Parole Board is not required to provide reasons that extend beyond informing the prisoner of the nature of the decision and the basis upon which it was made, sufficient for the prisoner whose interests are determined and affected by its decision to know what he or she needs to do to improve the prospects of succeeding in any future application for parole.
The reasons of the Board in this case were sufficient to inform the applicant of the basis upon which the Board made the ultimate decision to refuse parole. Inherent in those reasons is the identification of what is required by the Board to improve the chances of success on a future application for parole, namely, that she provides a reliable and truthful account of the circumstances of Mr Gottgens’ murder. Dissatisfaction with the decision does not equate to a failure to provide reasons for that decision.
Grounds 1, 2, 5 and 6
The applicant contends that the Board’s finding that it was not satisfied that she satisfactorily cooperated in the investigation of the offence of murder is contrary to law. She contends that the Board failed to grapple with her account of the circumstances of Mr Gottgens’ death which she has given since 2016, namely, that in August or September 1990 she struck him with a machete to the back of his head while he was sitting on the end of the wharf causing him to fall into the water where he submerged. She did not see him again. The applicant further alleges that the Board acted contrary to law in adopting the life sentence prisoner cooperation reports provided by SAPOL without considering itself whether it was satisfied she had satisfactorily cooperated in the investigation of Mr Gottgens’ murder. Further, the applicant contends that these reports are inaccurate because they wrongly assert that the prosecution case at the applicant’s trial for the murder of Mr Gottgens was that she had killed him in his bed when this was not how the prosecution conducted its case.
I do not accept these submissions.
On its face, s 67(6) of the Act applied to the applicant. She is a prisoner serving a sentence of life imprisonment for the offence of murder. For the purposes of the satisfaction required by s 67(6), the Board is required by s 67(7) to take into account any report from the Commissioner of Police evaluating the prisoner’s cooperation in the investigation of the offence. While the Board is not precluded from conducting its own investigation into the subject matter of such a report, it is not obliged to do so. The Board is entitled to accept, if it chooses, the terms of the report from the Commissioner of Police evaluating the prisoner’s cooperation in the investigation of the offence. Accordingly, I do not consider there would be any error if the Board did adopt the evaluation of the Commissioner of Police contained in that report.
However, I do not accept the submission that the Board slavishly adopted SAPOL’s evaluation of the applicant’s cooperation in the investigation of Mr Gottgens’ murder. It is important to understand precisely what the Board did and did not do. The Board expressly said it would not embark on an analysis of the evidence led at the applicant’s trial for the murder of Mr Gottgens and compare that with her current assertion as to the circumstances of his death. The Board correctly noted that the prosecution did not conduct the trial on the basis of a case theory that the applicant murdered Mr Gottgens by striking him on the back of the head with the machete, causing him to disappear into the water, never to be seen again. On the contrary, the prosecution conducted a circumstantial case that the applicant murdered Mr Gottgens between 2 and 7 July 1990, in circumstances that could not be proved beyond reasonable doubt, but included the possibility that he had been killed in his bed which had subsequently been disposed of and replaced. Nonetheless, the prosecution was conducted on the basis that the jury did not need to be satisfied beyond reasonable doubt that those were the particular circumstances by which the applicant killed Mr Gottgens. Rather, they need only have been satisfied beyond reasonable doubt that in early July 1990 the applicant had unlawfully killed Mr Gottgens.
The three life sentence prisoner cooperation reports from SAPOL identify a number of reasons why the account given by the applicant since 2016 concerning the circumstances of Mr Gottgens’ murder were open to doubt and that, accordingly, SAPOL considered she was not being truthful on this topic.
In my view, the approach of the Board does not disclose error. As I say, the Board was entitled to adopt the SAPOL evaluation of the applicant’s cooperation in the investigation of Mr Gottgens’ murder. In doing so, it did not act unreasonably. The Board was satisfied that the applicant had not been truthful as to the circumstances of Mr Gottgens’ murder. That conclusion was open on the material before it, including in particular the life sentence prisoner cooperation reports. That decision was not a decision that no reasonable decision maker could have made, nor was it a decision that lacked an evident and intelligible justification. It was not infected by unreasonableness. The Board was not bound to accept the applicant’s truthfulness in the absence of contradictory evidence. The Board was not wrong in proceeding on the basis that the evidence led by the prosecution at the applicant’s trial was that she had murdered Mr Gottgens in his bed. There was evidence that supported this conclusion. The prosecution conducted the case on the basis that there was evidence that pointed to Mr Gottgens being killed in those circumstances. That the prosecution invited the jury to find the applicant guilty, even if it was not satisfied that these were the precise circumstances of his death, does not evince an approach by the Board that is contrary to law.
The Board’s ultimate decision
In any event, the ultimate decision of the Board was not that it could not order the applicant’s release on parole by reason of the operation of s 67(6). The Board’s consideration was not confined to the decision required by s 67(6). The Board also had regard to those considerations prescribed by s 67(3a) and (4).
A consideration of those statutorily prescribed factors provided the basis for an evaluative judgment by the Board that the applicant was not suitable for parole. The Board determined that the applicant was not truthful and had a capacity to deceive authorities which had not been addressed. This was relevant to the applicant’s rehabilitation and the risk of non-compliance with the conditions of any parole and her obligations to report to a community corrections officer. The Board considered these risks had not been reduced to such an extent that it could consider her suitable for release.
Accordingly, even if any of the grounds of review relied upon by the applicant had been established, there was still a proper basis for the Board to exercise the discretionary power reposed in it to refuse the application for parole. The grounds of review do not challenge the Board’s decision founded in the evaluation of the factors prescribed by s 67(3a) and (4).
Conclusion
I would dismiss the application. I would hear the parties as to costs.

[2021] SASC 53

13 May 2021