Nicholson v Parole Board of Queensland [2021] QSC 325

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - UNREASONABLENESS - where the applicant was convicted of the murder of his wife - where the body of the applicant's wife has never been found - where the applicant made application for parole under the provisions of the Corrective Services Act 2006 (the Act) - where the Act empowered the respondent to grant parole or refuse parole - where by s 193A the respondent must refuse parole unless "satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the victim's location" - where the respondent purported to make a "decision" that the applicant had not "cooperated satisfactorily in the investigation of the offence to identify the victim's location" (the finding) - where, contrary to the Act, the respondent failed to then decide whether to grant or refuse parole - where the parties proceeded on the basis that the finding was the decision - where the applicant identified five factors not taken into account by the respondent in making the finding - where the respondent accepted that the application ought to be allowed if any of the considerations were not taken into account and were material - whether the considerations were taken into account - whether the considerations were material

Judicial Review of Administrative Action and Government Liability 6th ed 2017

Corrective Services Act 2006, s 193, s 193A

Criminal Code, s 2, s 23, s 271, s 302, s 303, s 304, s 305

Judicial Review Act 1991, s 20

Migration Act 1958, s 501, s 501CA

Uniform Civil Procedure Rules 1999, r 681

Ali v Minister for Home Affairs [2020] FCAFC 109, cited

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, followed

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280, cited

Commissioner of Police Service v Parole Board of Queensland & Anor (2019) 3 QR 251, related

DQM18 v Minister for Home Affairs [2020] FCAFC 110, cited

Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442, followed

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, followed

Kirk v Industrial Court (NSW) (2010) 239 CLR 531, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, followed

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589, considered

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, cited

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Lianj (1996) 185 CLR 259, cited

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, cited

Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, cited

Prior v Mole [2017] HCA 10; (2017) 261 CLR 265, cited

Renwick v Parole Board of Queensland (2019) 2 QR 645, followed

Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363, followed

• [1] Clive Anthony Nicholson is presently serving a term of life imprisonment for the murder of his wife. Mrs Nicholson's body has never been found. After becoming eligible for parole, Mr Nicholson made application for release and that application was apparently[1] refused by the Parole Board (the Board). The Board found that Mr Nicholson had not cooperated satisfactorily in the investigation of the murder to identify Mrs Nicholson's location.[2] That finding mandated a decision to refuse parole.[3]
• [2] Mr Nicholson seeks judicial review of the decision which, for the reasons I later explain, is taken to be a decision to refuse parole.

• [3] Mr Nicholson was, in 2003, living with Mrs Nicholson and their young daughter in Southport.
• [4] Mr Nicholson was charged that:

"On or about the 15th of July 2003 at Gold Coast in the State of Queensland, you murdered Julie Rose Nicholson."

• [5] At his trial in February 2006, Mr Nicholson did not contest that he had killed Mrs Nicholson. He raised the following in his defence:

1. At the time he did the act[4] which killed his wife, Mr Nicholson did not intend to kill or do grievous bodily harm to her.[5]

4. The act which killed was not a willed act.[8]

• [6] The Crown case was that Mr Nicholson killed Mrs Nicholson by delivering a blow or blows with a hammer. That allegation was not in dispute at the trial.
• [7] In defence, it was argued that the hammer impacted Mrs Nicholson during a struggle. Therefore, the striking of her was not a willed act by him. Alternatively, it was argued that the blow or blows were delivered in defending an assault by Mrs Nicholson. In either of those scenarios, Mr Nicholson would not be guilty of murder and would not be guilty of manslaughter as the killing was not unlawful.[9]
• [8] Alternatively, Mr Nicholson argued in defence to the charge of murder that the killing either occurred without intent by him to cause Mrs Nicholson's death or grievous bodily harm or, if he had that intent, he acted under provocation.[10] In either of those cases, Mr Nicholson would be guilty of manslaughter, not murder.
• [9] The jury convicted Mr Nicholson of murder and he was sentenced to life imprisonment.[11]
• [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:

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. ..."

"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 . ..."

"So I continued to lie and stupidly build a case that Julie had deserted the family home and I should try for sole custody."

"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.
• [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.[12] 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.
• [15] Mr Nicholson lodged his application for parole with the Board on 9 October 2018 and a couple of days later the Board requested, pursuant to s 193A(4) of the Corrective Services Act, that the Commissioner of Police provide a report as to Mr Nicholson's "cooperation in the investigation of the murder to identify the whereabouts of Mrs Nicholson's body".[13] A report was prepared by DSS Knight and provided to the Board under cover of a letter from the Commissioner of Police dated 3 December 2018 (the first cooperation report).
• [16] It is unnecessary to descend into great detail as to the contents of the first cooperation report. In summary, DSS Knight:

1. noted the denials of killing that had been made by Mr Nicholson before the letters were discovered;

2. noted some of the content of the letters, in particular the assertion that Mrs Nicholson had been disposed of in the water at The Spit;

3. noted that at Mr Nicholson's trial for Mrs Nicholson's murder, the Crown prosecutor did not accept that Mrs Nicholson's body had been disposed of in the way Mr Nicholson explained;

4. observed that in the interview on 2 November 2017, Mr Nicholson maintained that he disposed of Mrs Nicholson by placing her in the water at The Spit;

5. observed that a statement had been obtained from Queensland Police, State Emergency and Rescue Coordinator, Senior Sergeant James Whitehead who said that bodies of persons drowning or disappearing in the Southport Seaway are often located within three days of disappearance on the foreshore of South Stradbroke Island. SS Whitehead said that while that would have been expected of Mrs Nicholson's body, there are possible explanations for her body never being recovered, including marine predation. He opined that it was unlikely that any remains of Mrs Nicholson would still be in the Seaway or the surrounding area.

• [17] DSS Knight recorded the views of Detective Superintendent Hodgman who is a superintendent at the Homicide Investigation Unit:

"NICHOLSON wrote a hand-written letter to the investigating police officers in 2003, which claimed that the deceased's body was placed into the water in the vague general area of 'The Spit' at Southport. NICHOLSON failed to provide any further useful information to assist in locating the deceased's body until 2017, when interviewed at Wolston Correctional Centre. No evidence is available to suggest that NICHOLSON provided any information that afforded police any opportunity to conduct a search to recover the deceased's body.

Police have been unable to recover [the] deceased's remains."

• [18] DSS Knight recorded the views of Acting Detective Chief Superintendent Lawrence:

"During the investigation, NICHOLSON did not provide sufficient information to allow a search to be conducted for the deceased's remains. The information contained within this document displays a lack of timely information, that could be considered sufficiently productive to assist in the recovery of the deceased's body.

The information that was provided by NICHOLSON was incomplete, for the purpose of recovering the deceased's body.

The information provided by NICHOLSON has not resulted in the location of [the] deceased's body."

• [19] By way of summary of the significance and usefulness of Mr Nicholson's cooperation, DSS Knight observed:

"The significance and usefulness of the prisoner cooperation

NICHOLSON has provided details relating to the location of the deceased's body on two occasions.

The first evidence of the location of the deceased's body was provided within a hand-written letter dated 17 August 2003, NICHOLSON stated he placed the deceased's body into the water in the general area of 'The Spit' at Southport.

The first version provided by NICHOLSON was very general, referring only to 'The Spit' which is a large body of water. Upon review of the original investigation and the evidence contained within the trial transcripts, there is no evidence of any water searches being undertaken by the original investigating police officers.

NICHOLSON did not provide any further details until approached by police more than fourteen years later. NICHOLSON provided a sketch diagram to police, describing the location where he claimed to have placed the deceased's body.

The information provided by NICHOLSON in 2017 did not afford any realistic opportunity to recover the deceased's body."

• [20] In January 2019, Mr Nicholson, through his lawyers, contacted DSS Knight wishing to provide further information as to the whereabouts of Mrs Nicholson's body.
• [21] On 10 January 2019, Mr Nicholson was interviewed by DSS Knight and Detective Senior Constable Pordage. He told police that he had more information to give about the locality of Mrs Nicholson's body and that the information was different to what he had given in November 2017. As to why he was now giving a different version, he explained:

"CN[14] Um on the aar November 17 you came out here my daughter was going through her last year of high school HSC and was doing brilliantly well at school and I wanted no publicity nothing so I just perpetuated the myths of what had happened in the past.

1. On the basis of well there would be no publicity she can get on with her exams, she's done brilliantly she got into the double university degree that she wants partial scholarship and everything so and that's why this time round aar at the moment she is in Korea on a student exchange"

• [22] Mr Nicholson explained to police that he had initially planned to place Mrs Nicholson's body in the ocean, but in the end, buried her in a hole about two feet deep at Cedar Grove which is near Jimboomba.
• [23] As to why he did not place the body in the water, Mr Nicholson said:

"CN Um which I had it at that time driven to the to the Broadwater there was too many fishermen and stuff so I went home check my daughter make sure she was still asleep and then went out to um its out near Beaudesert where some years before I had been working on a builders property out the ...

1. Ok ok and sorry what happened out there you said ok so you went out to Beaudesert what happened down there
2. That's where this would have been at night are from an area called I believe it's um Cedar Grove then you follow it along over the railway track and down a dirt track um and then there's a rubbish a lot of scrub area um obviously who would dump their rubbish and stuff cause it reflected in my headlights
3. Hmhm
4. and that's where I then buried Julie's body" (emphasis added)

• [24] Mr Nicholson was then asked a number of questions as to the location of the body and he gave general descriptions of the area. Of some significance, he mentioned motorcycle tracks and he said this:

"CN That you've um I had I don't know why but I have the impression that guys on MX bikes had been motorbikes had been going through that area

1. Sure
2. I don't know why that's just something stuck [in my] mind whether I've seen tracks on the road or people have described in prison where they've ride their dirtbikes going through the scrub or whatever
3. Ok" (emphasis added)

• [25] Mr Nicholson said that his daughter had slept through the night and he offered this:

"CN Made sure [Mr Nicholson's daughter] was still asleep as I had said to are the legal aid people um when it all happened at home um and I told [Mr Nicholson's daughter] to go to bed to get her quiet I went and got her some milk and a quarter of sleeping tablet that my mother had been giving because Julie had been using"

• [26] On 17 January 2017, DSS Knight and DSC Pordage again visited Mr Nicholson in jail. Police showed Mr Nicholson some maps and asked further questions attempting to identify the area where Mrs Nicholson had been buried. Mr Nicholson said this:

"CK .. After looking at those maps is there anything else that you can tell us that is going to assist us in recovering Julies body?

1. As I said, I still have a feeling that around near all these bits of rubbish and stuff were on the right-hand, which we now take to the eastern side of the road, cause the road swings around almost due north. On the left-hand there was still a lot of gum trees and what-have-you through that area, it did not give you the impression that it was going to be redeveloped or anything in the near future because it's just still on a dirt track. And if we looked at the sealed maps there the sealed road was till some distance on whether another kilometre or two kilometres I don't know.
2. Alright, can I ask you this. Before you went out there in 2003 with Julies body in the back of your ute, prior to that when was, how much recent to that had you been out in this area?
3. I'd been at Cedar Creek[16] back in the, I suppose it would have been 97 or 98, on the eastern side of Mt Lindsay Highway.
4. So that's 5 or 6 years earlier
5. Earlier, but I hadn't been on the western side of that Jimboomba road.
6. Ok, yep
7. I just knew that that's there
8. So what you're saying is that apart from the night in question, when Julies body was in the back of your ute, are you saying that you had not been out near that area, that Cedar Grove area, prior to that night?
9. Ever
10. Ever? Had you, did you ever after that night di you ever return to that site.
11. No
12. Ok, so that is the one and only time you've been
13. One and only time
14. That is the one and only time and that was when you buried Julies body
15. Yes" (emphasis added)

• [27] On 23 January 2019, DSS Knight, DSS Pordage and Detective Senior Constable Kidd arranged for Mr Nicholson to be released into their custody so he could be taken to the Cedar Grove area and attempt to identify the place where he buried Mrs Nicholson.
• [28] Mr Nicholson directed police to various locations and his comments were recorded. A transcript of the relevant parts of the recording were before the Board. I will call this exercise "the site visit".
• [29] During the site visit a property was identified and that was the subject of subsequent searching by police, including with the use of cadaver dogs. Nothing of significance was found.
• [30] A further cooperation report was prepared by DSS Knight (the second cooperation report). He recorded the history of the various interviews with Mr Nicholson and then referred to the site visit. He recorded that there were inspections of various locations along Undullah Road between Cedar Grove and Ripley. He then reported:

"The only location of interest that was identified as a site where the victim's body may have been buried was identified at coordinates S 27.76254; E 152.84048. This is a private property located at 1495-1545 Ripley Road, South Ripley. Ripley Road is an extension of Undullah Road. The road changes name without an identifiable intersection." (emphasis added)

• [31] DSS Knight then recorded that there was unsuccessful searching at 1495-1545 Ripley Road, and he referred to statements that had been obtained from Christine Paula Grealy, the owner of the property. Of some significance, Ms Grealy said that about 10 years before she made her statements (so therefore in about 2009) the property was developed. An area close to the road near the front gate was excavated to make a dam and the dirt which was extracted was used to construct a motocross training track. That was the only development on the property.
• [32] DSS Knight also referred to various other information he had, including that cadaver dogs had failed to identify any evidence.
• [33] By 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 location

In 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."

• [34] The Board heard the application over various meetings. A dispute arose as to whether DSS Knight could be compelled to give oral evidence at the hearing and be cross-examined. The Board held that it had that power and that determination was the subject of an unsuccessful challenge to this Court.[17] Various submissions were sought and received by the Board. Neither in their written submissions nor in oral argument on this application did either of the parties raise any issues about the hearings or the process by which the decision was made. As already observed, the Board seemingly dismissed the parole application on 13 July 2021 and reasons were delivered.

• [35] This is not a merits review. However, there are shortcomings in the Board's reasons which are relevant to the grounds of review.
• [36] The Corrective Services Act gave the Board the power to grant parole by s 193. It provides, relevantly:

(1) After receiving a prisoner's application for a parole order, the parole board must decide -

(a) to grant the application; or

(b) to refuse to grant the application. ...

(5) If the parole board refuses to grant the application, the board must -

(a) give the prisoner written reasons for the refusal; and

(b) if the application is for a parole order other than an exceptional circumstances parole order - decide a period of time within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board's consent. ...

(6) If the parole board refuses to grant the application because of section 193A, the written reasons given under subsection (5)(a) must include a statement that the parole board is not satisfied the prisoner has cooperated as mentioned in section 193A(2)."

• [37] The function of the Board is to decide whether to grant or refuse parole. For reasons later explained,[18] it made a different "decision".
• [38] Section 193A prohibits the grant of parole in circumstances where the victim's body has not been located unless the Board is "satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the victim's location". That is the effect of s 193A(2). Section 193A, relevantly here, is:

"193A Deciding particular applications where victim's body or remains have not been located

(1) This section applies to a prisoner's application for a parole order if the prisoner is serving a period of imprisonment for a homicide offence and -

(a) the body or remains of the victim of the offence have not been located; or

(b) because of an act or omission of the prisoner or another person, part of the body or remains of the victim has not been located.

(2) The parole 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.

(3) For subsection (2), the cooperation may have happened before or after the prisoner was sentenced to imprisonment for the offence.

(4) After receiving the application, the board must, by written notice, ask the commissioner for a report about the prisoner's cooperation as mentioned in subsection (2). ...

(6) The commissioner must comply with the request by giving the parole board, at least 28 days before the proposed hearing day, a written report that states whether the prisoner has given any cooperation as mentioned in subsection (2) and, if so, an evaluation of -

(a) the nature, extent and timeliness of the prisoner's cooperation; and

(b) the truthfulness, completeness and reliability of any information or evidence provided by the prisoner in relation to the victim's location; and

(c) the significance and usefulness of the prisoner's cooperation.

(7) In deciding whether the parole board is satisfied about the prisoner's cooperation as mentioned in subsection (2), the board -

(a) must have regard to -

(i) the report given by the commissioner under subsection (6); and

(ii) any information the board has about the prisoner's capacity to give the cooperation; and

(iii) any relevant remarks made by the sentencing court that sentenced the prisoner to the term of imprisonment the prisoner is serving for the offence; and

(iv) if the prisoner requests the board to consider a transcript of a proceeding against the prisoner for the offence - the transcript; and

(b) may have regard to any other information the board considers relevant. ..."

• [39] Whether the Board is "satisfied" of satisfactory cooperation is a matter of judgment for the Board.[19] It is only if that satisfaction is reached that the discretion to grant parole arises.
• [40] Sections 193A(4) and (6) require the Board to obtain a report from the Commissioner of Police as to the applicant for parole's cooperation in the investigation to locate the deceased's body. In determining the issue posed by s 193A(2), the Board must consider the matters prescribed by s 193A(7) which include the cooperation report.
• [41] Whether the prisoner has "cooperated satisfactorily" must involve an assessment by the Board of the credibility of information given by the prisoner "in the investigation of the offence to identify the victim's location". In Renwick v Parole Board of Queensland,[20] the Court of Appeal considered s 193A and held:

"[29] As to the second alleged error, the Board appropriately regarded it as necessary, in considering whether there had been satisfactory cooperation by the appellant, to determine whether the information he provided was credible. In determining his credibility, lies previously told by him were relevant. In that regard, it was evident that he had lied either in the claim that the body was cremated or by the lie by omission of any mention of cremation and, indeed, creation of the impression at sentence that the body had been dumped. The lie by omission and misrepresentation would be material because the information was crucial to any search to be undertaken." (emphasis added)

• [42] The Board here appreciated the question before it posed by ss 193A(4) and (7) and appreciated that the truthfulness or otherwise of the versions given by Mr Nicholson was relevant to that task. It also accepted that in assessing cooperation, it was required to consider the cooperation reports.
• [43] The train of reasoning of the Board was:

1. Mr Nicholson had told many lies, including when he was attempting to cover up the fact that his wife was dead.

2. The account given that Mr Nicholson had disposed of Mrs Nicholson's body by placing her in the water of The Spit was "plausible".

3. That account is now though, said by Mr Nicholson, to be a lie so it can be rejected.

4. The account of burying Mrs Nicholson in Cedar Grove is not plausible for a number of reasons.

5. Therefore, the Board cannot be satisfied that Mr Nicholson has satisfactorily cooperated.

• [44] The central issue in the application to the court was whether the Board's finding that Mr Nicholson's version of burying Mrs Nicholson's body at Cedar Grove is implausible can withstand review.
• [45] At paragraphs [99]-[100] of its reasons, the Board says:

"[99] On his own account, and as a matter of common sense, at the time he was disposing of the body the applicant was panicked having never found himself in that situation before. It was night-time and he had left his beloved three-year old daughter at home, alone and asleep in the house at Southport. [Mr Nicholson's daughter] had woken earlier around the time of the killing.

[100] In those circumstances, the Board considers it implausible that the applicant would have driven his ute carrying the dead body of his wife, to an unfamiliar area a long way from home. The applicant told police that prior to the night he buried his wife's body in 2003 he had never been to that place; 'ever'."

• [46] The Board didn't, at least expressly, refer to Mr Nicholson's explanation that he had given his daughter a sleeping tablet and had only driven to Cedar Grover when the initial plan to dispose of the body at The Spit was thwarted by the presence of fisherman. Those passages appear at paragraph [23] these reasons.
• [47] Further, it is evident from paragraph [100] of its reasons, that the Board proceeded on the understanding that Mr Nicholson had gone to an area where he had never previously been. That is not the evidence which was before the Board. Mr Nicholson told DSS Knight that he had been to the area previously. The relevant passages appear at paragraphs [23] and [26] of these reasons.
• [48] Mr Nicholson told police that he had worked in the area on a builder's property and had been there a few years earlier. He said that when he couldn't dispose of Mrs Nicholson's body at The Spit because of the presence of fisherman, he headed to the Beaudesert area, an area he had been before. He said he had just never been on the western side of Jimboomba Road. The Board's finding that he went to a place he had never been is a very selective (at best) view of the evidence.
• [49] At paragraph [101], the Board found:

"[101] It is also implausible that 15 years later, taking into account the applicant's lack of familiarity with the area, his state of mind at the time he buried his wife in the night time and the significant changes to the bushland terrain over the years, that he could, with any degree of certainty, nominate the burial site. The fact that the QPS did what they could to search that area is indicative of a motivation to return victims to their families rather than of a belief in the applicant's account." (emphasis added)

• [50] This paragraph is part of the consideration by the Board as to the plausibility and credibility of the Cedar Grove version. By saying that it is implausible that Mr Nicholson could nominate a site after 15 years "with any degree of certainty", the Board is assuming that he has nominated a site "with a degree of certainty". The logic is that it is not plausible that he could nominate a site and therefore he has dishonestly done so. In reality, he did not nominate a site. The Board has misunderstood the evidence.
• [51] On 23 January 2019, the police spent hours travelling up and down roads in the Cedar Grove area with Mr Nicholson. Mr Nicholson gave information and discounted possible sites until the property at 1495 Ripley Road was identified. The exchange with police about this is:

"Police vehicle stopped on Undullah Road to closer inspect an area, as identified by NICHOLSON.

The area is enclosed by temporary fencing and is an overgrown disused motocross track.

NICHOLSON gets out of the vehicle with Police and inspected the area on foot.

The GPS coordinates of the area indicated by NICHOLSON are:

NOTE: Subsequent inquiries have identified the location of this location as being on private property at 1495 Ripley Road, South Ripley.

Ripley Road is an extension of Undullah Road. The road apparently changes name without an identifiable intersection.

NICHOLSON discusses how the location has obviously been affected by the construction of a motocross track.

- They discuss that it's difficult to estimate how long ago the track was constructed

- NICHOLSON said that the area may have too much of a slope on it and may be too 'hilly'

Det KNIGHT asks NICHOLSON to describe the similarities of the location where they had just stopped and inspected, compared to his memory of the night when he buried the deceased's body.

NICHOLSON: 'We've got this bit of a hill, as I've said all along, bit of a hill to the left-hand side. You've got this track that goes off at right angles. We've got this bit of a'.

NICHOLSON: 'You've got this track that goes off at right angles, off this gravel road'.

NICHOLSON: 'It's a dirt track, it's not a fenced off property or anything.

Um, the distance that we walked in and then to be able to turn left that I indicated would be about correct for where I kind of feel that I buried Julie'.

NICHOLSON: 'But there's just again, there's just something there that in my heart I wish it to be true but there's just something there that just doesn't tick all the boxes for me. I just don't know what'.

NICHOLSON then re-iterates that the turn off and distance from the road do fit his memory.

They discuss that there has been some development at some stage for the motocross track.

He then describes that the ground was hard, but there was no rock. The soil was dry and consistent with what he was observing on this occasion.

The Police vehicle then continue driving along Undullah Road, towards Ripley.

Police vehicle slows down as NICHOLSON discusses another location but dismisses it as a potential location for the deceased's body.

Police vehicle slows down as NICHOLSON discusses another location but dismisses it as a potential location for the deceased's body.

This location was not consistent with NICHOLSON' recollection due to some of the natural landscape features.

Police vehicle passes the 2nd cattle yards as they continue along the road in a north westerly direction.

Police vehicle travels back onto the bitumen stretch of Undullah/Ripley Road.

NICHOLSON acknowledged that of the areas that were observed over the day, the area surrounded by the temporary fencing on the motocross track is the most likely location that was identified." (emphasis added)

• [52] The second cooperation report does not suggest that Mr Nicholson positively identified the property at 1495 Ripley Road as the relevant site. DSS Knight was cross-examined at the Board hearing. As to the Ripley Road location, this exchange occurred with counsel then appearing for Mr Nicholson:

"All right. And ultimately, as you say, he settled on a spot that he - I'm not suggesting he was 100 per cent about, but this is the spot he was most confident on?---It was, yeah. That - yeah.

He expressed some doubts, though, didn't he?---Definitely, yeah." (emphasis added)

• [53] Mr Nicholson struggled to identify any site. He was clearly struggling to recall the area. He struggled with the change of terrain over the years, just as the Board thought that, logically, he would if he was genuinely attempting to locate the burial site. He couldn't remember a site with "any degree of certainty".
• [54] At paragraph [104] of the Board's reasons, this appears:

"[104] The level of detail provided by the applicant in his current account, and the question of what motivation he might have to lie now have been carefully considered."

• [55] After no doubt correctly identifying motivation to lie about disposing of the body at Cedar Grove as an important consideration, the Board does then not grapple with that issue. What follows is this:

"[105] The extent of the detail does not assist the applicant's credit given the evidence of his capacity for elaborate lies in the past. For weeks following the murder, the applicant told many lies involving intricate details, for example of buying flowers and chocolates.

[106] As to motivation, Counsel for the applicant submits, inter alia, that the applicant can only gain from cooperating to the best of his ability now given the prospect of spending the rest of his life in prison.

[107] In his submissions to the Board dated 3 May 2021, the applicant enclosed a document dated 2 January 2019 written after he had attended Mass in custody. He states, inter alia, that he would take police to the location he buried his wife. The document states that he was unable to do that when police first approached him because his daughter was in her final year of exams. Now that his daughter was overseas, the applicant wrote that he could no longer continue to avoid additional grief to her or others. The applicant asked that counselling be arranged for his daughter upon her return.

[108] The board accepts that the consequences of an adverse finding in these proceedings are a powerful motivation to tell the truth. The Board also accepts the deep love and concern the applicant has for his daughter. However, the applicant has told elaborate lies in the past to obfuscate the truth and the account he gives now is not credible as outlined above.

[109] The Board notes that the applicant's account of disposing of the victim's body in the seaway came at a time when he was contemplating suicide and motivated to provide closure for her family." (emphasis added)

• [56] The reasoning at paragraphs [105]-[109], is:

1. It is seemingly accepted that the lack of apparent motive to lie is a matter in Mr Nicholson's favour.

2. It is accepted that there is "a powerful motivation to tell the truth".

• [57] The fact that Mr Nicholson has lied in the past is no answer to the submission that there is "a powerful motivation to tell the truth", the existence of which motivation seems to have been accepted. While it is said that motivation has "been carefully considered", that is not otherwise evident from the reasons.

"1. The respondent committed jurisdictional error by failing to discharge its statutory task, namely not considering, evaluating, or 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 193A of the Corrective Services Act 2006 (Qld) (the Act).

2. The decision of the respondent was unreasonable because it failed to consider, evaluate or deal with material aspects of the information before it with respect to the credibility of the applicant and the issue of satisfactory cooperation under s 193A of the Act."

• [59] The application seeks a review of "the decision of the respondent, published on 13 July 2021, that:

The Board is not satisfied that the applicant has cooperated satisfactorily in the investigation of the offence to identify the victim's location."

• [60] That is the "decision" which the Board purportedly made.[21]
• [61] That is not an operative decision. Sections 193 and 193A of the Corrective Services Act operate in this way:

1. Section 193 gives power to the Board to grant parole to an eligible prisoner.

2. That general grant of power is modified where the body of the victim of the prisoner has not been found.

3. In those circumstances, the power to grant parole cannot be exercised "unless the Board is satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the victim's location".[22]

4. Where the Board holds that satisfaction, it may grant or refuse parole, depending upon the merits of the application.

5. Where it does not hold the requisite satisfaction, it "must refuse to grant the application under s 193" which is the application for parole.

• [62] The Board's "decision"[23] is to grant or not grant parole. That is the "decision" which is "made under an enactment"[24] which the Board should make. The "decision" under s 193A(2) of a lack of satisfaction of satisfactory cooperation is a finding made "along the way".[25] It is not the operative decision.
• [63] Here, the Board did not enter upon the merits of the parole application because it was prohibited from so doing given that it did not hold the satisfaction required by s 193A(2). However, it was obliged to then dismiss the application. That is what s 193A(2) expressly compels it to do.
• [64] The Board has misunderstood its obligations and apparently thought that it was required only to make a "decision" as to whether it held the satisfaction identified by s 193A(2). That, for the reasons I have explained, is not a "decision".
• [65] Although the Board has misunderstood its obligations and not discharged its statutory function, the parties argued the case as if the failure of the Board to hold the satisfaction identified by s 193A(2) was a decision to refuse parole.
• [66] The finding made by the Board under s 193A(2) made refusal of parole inevitable. No party is disadvantaged by the fact that the application seeks wrongly to challenge the "decision" under s 193A(2) and I will proceed on the basis that the "decision" is, in substance, a decision to refuse parole.

1. Mr Nicholson's explanation as to why he decided not to dispose of the body at The Spit.[27] This is the explanation about fisherman being present and consists of the passages set out at paragraph [23] of these reasons. (Complaint 1)

2. Mr Nicholson's explanation as to why he was comfortable leaving his daughter at home while he disposed of Mrs Nicholson's body.[28] This is the passage concerning giving the young girl a sleeping tablet and is set out at paragraph [25] of these reasons. (Complaint 2)

3. Mr Nicholson's statement (uncontested it seems) that he had been to Cedar Grove in 1997 or 1998.[29] They are the passages set out at paragraph [23] and [26] of these reasons. (Complaint 3)

4. "That on 10 January 2019, Mr Nicholson stated that he had 'the impression that guys on MX bikes had been motorbikes going through that area [where he disposed of the victim] ... I don't know why that's stuck in my mind whether I've seen tracks on the road or people have described in prison where they've ride their dirtbikes going through the scrub or whether'. The Board dismissed as "dubious" any assistance Mr Nicholson gained from that in subsequently identifying the victim's location on 17 and 23 January 2018. But the Board failed to have regard to the fact that the location in fact identified by Mr Nicholson was one that had been redeveloped as an MX trail."[30] (Complaint 4)

5. The absence of a motivation to lie.[31] (Complaint 5)

• [68] Ms Longbottom QC primarily based ground 1 of the application on Minister for Home Affairs v Omar.[32] Omar concerned the judicial review of a decision under the Migration Act 1958. It is unnecessary to set out the relevant provisions in full. They can be summarised as follows:

1. By s 501(3A), a visa can be cancelled.

2. After cancellation, notice must be given to the visa holder inviting "representations" about the revocation.[33]

3. By s 501CA(4):

"(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked."

• [69] The Full Court of the Federal Court of Australia held that the Minister was, by the statute, obliged to consider the "representations". It was put in this way:

"The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute 'another reason' for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error (see Viane at [28]-[30] per Rangiah J and at [67] per Colvin J and Ezegbe at [47] per Perram J)."[34]

• [70] Omar has been followed in Ali v Minister for Home Affairs[35] and DQMI18 v Minister for Home Affairs.[36]
• [71] Omar, and the cases cited by it and the cases which have followed it, concern the particular statutory context of the Migration Act. The Migration Act provides a right in the visa holder to make "representations". It is hardly surprising that the Minister must, by force of the Act, engage in a consideration of all material issues raised by the "representations".
• [72] Ultimately, what a decision-maker must consider is a question identified by the proper construction of the provisions granting the power. What is, or is not relevant, is determined upon the proper construction of the statute.[37]
• [73] There is, in my view, no general proposition that a decision-maker must consider and engage in a reasoned way with all assertions and submissions made by a person potentially affected by a decision. The authorities are to the contrary of that proposition.[38] In the absence of a statutory command (expressed or implied) to consider particular matters (or not consider others), it is for the decision-maker to determine what is relevant or not relevant to the decision-making process and it is up to the decision-maker to determine the weight to be given to matters considered relevant.
• [74] The decision-maker must make the decision or exercise the power within the limits of the statutory grant. This obliges the decision-maker to exercise the power for the intended purpose. Where a decision-maker asks himself or herself the wrong question, or embarks upon a consideration beyond, or contrary to the legislation, jurisdictional error will have occurred.[39]
• [75] Section 193A of the and the scheme in which it sits is a very different section and scheme to that established by the . Section 193A expressly obliges the Board to consider the cooperation report. It also obliges the Board, by implication, to consider the truthfulness of the information provided by the applicant for parole. The Board here unquestionably properly identified its task and recognised that the credibility of the information provided was a relevant consideration.

"MR ANDREATIDIS: Yes, I know that. It's accepted that if your Honour is to find that any of the asserted omissions were material and, in fact, omitted, then the application should succeed, but - - -"

• [77] The way the case was argued, there are two questions:

1. Have any of the five complaints which are now summarised at paragraph [67] of these reasons been established?

2. If so, are any of them "material" to the decision which, in context, means that they affected, or were capable of affecting the decision?

Have any of the five complaints been established?

• [78] Complaint 4 can be dealt with quickly as there is no substance to it. Mr Nicholson argues that the area which he identified (with great doubt) was in fact used as a motorcycle track as he had said. That supports his credit, he submits.
• [79] The Board's logic though is correct. Once it is accepted that Mr Nicholson may have either seen the evidence of motorcycle activity on the night he disposed of Mrs Nicholson's body, or may have heard later that the area was used for that purpose, his ability to identify the area as one used for motorcycle sport becomes irrelevant. It did not, as the Board correctly found, bolster his credit.
• [80] Complaint 3 is, in my view, made out. I do accept that reasons of an administrative decision-maker ought not be overly zealously scrutinised.[42] However, Mr Nicholson had been to the area, he said, but just not the specific part of it where Mrs Nicholson was, he said, buried. He explained when and why he had previously been there. He also explained why he went to the area on the night of Mrs Nicholson's death. Part of that reason is the subject of Complaint 1. In my view, the Board misunderstood the evidence and because Mr Nicholson said that he had not been to the western side of Jimboomba Road, it concluded that he had not been to the area.
• [81] Complaint 1 is also made out. The Board was considering the plausibility of the account that Mr Nicholson had given of taking Mrs Nicholson's body to Cedar Grove. As already observed, the Board had concluded that Mr Nicholson took Mrs Nicholson to Cedar Grove notwithstanding that he had never been to the area. That, as I have explained, was an error by the Board. That is compounded by the omission to have regard to why he went to Cedar Grove. The reason was that his first plan (to dispose of Mrs Nicholson's body in the water at The Spit) was thwarted by the presence of fishermen.
• [82] Complaint 2 is made out also. The Board correctly noted Mr Nicholson's deep concern for his daughter. That concern is evident through the interviews with police. He gave a clear explanation as to how he dealt with that issue. He said that he gave his daughter a sleeping tablet and made sure she was asleep before setting off to dispose of Mrs Nicholson's body. Reference to that explanation appears nowhere in the Board's reasons.
• [83] Complaint 5 is also made out. While the Board recognised that motivation to invent the Cedar Grove story was relevant, and while the Board said that "the question of what motivation he might have to lie now [has] been carefully considered", there is nothing in the reasons explaining how that has been considered. It is obviously a major issue, as recognised by the Board.

Are any of the complaints "material" to the decision?

• [84] There are six matters which the Board ultimately took into account in determining against the credibility of the Cedar Grove version given by Mr Nicholson.[43]

1. Mr Nicholson by his own admission has lied in the past about the whereabouts of his wife's body: That is obviously a relevant consideration. However, it throws up the question identified by the Board but not discussed, namely "What is his motivation to lie now?"

2. Motivation to invent the Cedar Grove account: This was raised as an issue but as I have explained, not dealt with. There is no reason identified as to why Mr Nicholson, after 17 years in prison, would invent a story of burying Mrs Nicholson's body in Cedar Grove. It cannot logically be reasoned that this was part of a plan to obtain parole. How could sending the police to an area where the body won't be located possibly be thought to advance his prospects of parole? There is no evidence that any of this was considered by the Board.

3. It is implausible that Mr Nicholson would have left his young daughter in the house while he disposed of Mrs Nicholson's body: An explanation for this was given. Mr Nicholson explained that he had given his daughter a sleeping tablet so that she slept and then proceeded to dispose of Mrs Nicholson's body. There is nothing in the Board's reasons suggesting that explanation was considered.

4. It is implausible that Mr Nicholson would dispose of the body in an area where he had never been: What Mr Nicholson in fact said was that he had been to the area but just not the part of Jimboomba Road where he ultimately buried Mrs Nicholson's body. Therefore, after abandoning the plan to dispose of Mrs Nicholson's body at The Spit, he proceeded to an area he knew existed and disposed of the body.

5. It is implausible that after 17 years he could identify the burial site: The only evidence is that he couldn't identify the burial site for the various reasons in fact identified by the Board; he wasn't greatly familiar with the area, he was attempting to identify the burial site 17 years after the event, and there had been changes in the area over the time Mr Nicholson had been in prison.

6. The account of placing the body in the water at The Spit was plausible, therefore, tending to disprove the account of burying the body at Cedar Grove: Of course, no body was located in the ocean or washed up on the beach. The highest it can be put is that it is possible that the body may have been placed in the water and consumed by marine predators. The Board's own findings in relation to the Cedar Grove account appear as:

"[77] DSS Knight conceded that given the passage of time, limitations associated with cadaver dog process and factors that might affect the natural environment, it is possible the victim's remains are at the place identified by the applicant." (emphasis added)

• [85] The Board was under no obligation to accept The Spit account or the Cedar Grove account. However, there is no direct evidence proving or disproving either. Both are possible. The Board took the view that the Cedar Grove version tends to disprove The Spit version. The Spit version, the Board reasoned, was more likely to be true and therefore "plausible" because that version was given at a time when Mr Nicholson was contemplating suicide. While technically not a "death bed confession", the rationale is presumably similar, namely if death was imminent Mr Nicholson would have no reason to lie as there would be no consequences for him in telling the truth. On the other hand, there seems to be no identified motivation for Mr Nicholson to lie now about disposing of Mrs Nicholson's body at Cedar Grove.
• [86] So:

1. there was no consideration (at least expressly) of any motivation that Mr Nicholson would have to lie about Cedar Grove;

2. the Board has misunderstood the evidence of Mr Nicholson's prior knowledge of the Cedar Grove area;

3. the Board seemingly misunderstood that Mr Nicholson was purporting to positively identify the burial site whereas in fact he was saying that he couldn't;

4. the Board placed significance on the fact that Mr Nicholson identified the Ripley Road property as the burial site when in fact he didn't, with any confidence, identify it as the site;

5. the Board didn't consider Mr Nicholson's account of why he went to Cedar Grove with the body of Mrs Nicholson;

6. the Board did not consider Mr Nicholson's evidence of dealing with his concerns about his daughter by giving her a sleeping tablet so she wouldn't awake while he was away.

• [87] It can be seen that the Board's reasons, when properly analysed, boil down to a rejection of the Cedar Grove account because:

2. the Cedar Grove account was "implausible" for a number of reasons which can be criticised for the reasons that I have identified.

• [88] In those circumstances, the failure to take into account the matters the subject of Complaints 1, 2, 3 and 5 can be regarded as material. Ground 1 of the application succeeds.
• [89] Ground 2 need not be considered.

• [90] The case was argued on a narrow basis, namely whether five complaints as to the Board's reasoning were made out and whether those complaints were material.
• [91] For the reasons I have given, four of the five complaints are made out and those matters are material to the decision.
• [92] It follows that the decision ought be set aside and the matter remitted to the Board for reconsideration.
• [93] During the hearing, both parties urged me to give directions on the question of costs with a view to having the costs determined without further oral argument if possible. That is the appropriate approach. Given the presumption that costs follow the event,[44] and the fact that the respondent has been unsuccessful, it is appropriate that the respondent file its submissions on costs first.
• [94] The orders are:

1. The decision of the respondent made on 13 July 2021 to refuse the applicant's application for parole is set aside.

2. The determination of the applicant's application for parole is referred to the respondent for further consideration.

3. The respondent file and serve written submissions on costs by 4.00 pm on 15 December 2021.

4. The applicant file and serve any written submissions on costs by 4.00 pm on 23 December 2021.

5. Each party have liberty to apply, by filing an application by 4.00 pm on 4 February 2022, for leave to make oral submissions on the question of costs.

6. In the absence of the filing of an application for leave to make oral submissions as to costs, the question of costs will be determined on the written submissions without oral argument.

[1] Surprisingly, there is doubt as to what the Parole Board decided; see paragraphs [37], [58] to [66] of these reasons.

[2] Corrective Services Act 2006, s 193A(2).

[3] Corrective Services Act 2006, s 193A(2).

[12] A reference to Corrective Services Act 2006, s 193A.

[13] Corrective Services Act 2006, s 193A(2).

[16] Seemingly a reference to Cedar Grove.

[17] Commissioner of Police Service v Parole Board of Queensland & Anor (2019) 3 QR 251.

[19] See generally Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, Prior v Mole [2017] HCA 10; (2017) 261 CLR 265, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611.

[20] (2019) 2 QR 645.

[21] Parole Board's reasons for decision.

[22] Corrective Services Act 2006, s 193A(2).

[23] Whether or not s 193A is engaged; s 193A(7).

[24] Judicial Review Act 1991, s 20 and Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [10].

[25] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337.

[27] Mr Nicholson's outline of argument, paragraph 22(a).

[28] Mr Nicholson's outline of argument, paragraph 22(b).

[29] Mr Nicholson's outline of argument, paragraph 22(c).

[30] This is a direct quote from paragraph 22(d) of Mr Nicholson's outline of argument.

[31] Mr Nicholson's outline of argument, paragraph 24.

[32] [2019] FCAFC 188; (2019) 272 FCR 589.

[35] [2020] FCAFC 109.

[36] [2020] FCAFC 110.

[37] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 29-40.

[38] Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 374-375, cited with approval in Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [22] and [45], see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [89].

[39] See generally Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [66]-[70].

[40] Sections 193A(4), (6) and (7)(a)(i).

[41] Aaronson Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th Edition, Lawbook Co 2017.

[42] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, following Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280 at 287.

[43] The Board's reasons, paragraphs [96] and following.

[44] Uniform Civil Procedure Rules 1999, r 681 and Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67].