Nicholson v Parole Board Queensland [2024] QSC 232

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - UNREASONABLENESS - where the applicant was convicted of the murder of his wife, whose body has never been found - where the applicant initially told police he disposed of his wife's body in the ocean at Southport -where, in 2019, more than 15 years after the murder, the applicant changed his story and said that he had buried his wife's body on a property in Cedar Gove - where, in July 2021, pursuant to s 193A of the Corrective Services Act 2006 (Qld), the Parole Board refused his application for parole after finding the applicant had not "cooperated satisfactorily in the investigation of the offence to identify the victim's location" - where the applicant succeeded on an application for judicial review of that decision and the application was referred back to the Board for further consideration - where, in July 2023, the Board again found that the applicant had not given satisfactory cooperation and, subsequently, made a "no cooperation declaration" as a consequence of which the Board was required to refuse the parole application - whether the decision made by the Board in July 2023 was legally unreasonable because it lacked an evident and intelligible justification - whether the Board committed jurisdictional error by failing to discharge its statutory task of dealing with material aspects of the information before it with respect to the credibility of the applicant and the issue of satisfactory cooperation under s 175O of the Corrective Services Act 2006 (Qld)

Corrective Services Act 2006 (Qld), s 3(2), s 175B, s 175C,

s 175L, s 175O, s 175P(2), s 175Q, s 175R, s 176, s 193,

s 193A(2), s 216, s 217, s 490ZE

Judicial Review Act 1991 (Qld), s 20(2)(e), s 23(g)

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

Armitage v Parole Board Queensland [2023] QCA 239

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Burridge v Parole Board Queensland [2021] QSC 244

Calanca v Parole Board Queensland [2019] QSC 34

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

Francis v Crime and Corruption Commission [2015] QCA 218

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

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

Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Nicholson v Parole Board of Queensland [2021] QSC 325

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32

Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484

Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578; [2020] FCAFC 196

Tickner v Chapman (1995) 57 FCR 451; [1995] FCAFC 1726

E J Longbottom KC, with L D Reece and E A Lynch, for the applicant

Parole Board Queensland Legal Services for the respondent

• [1] On 10 February 2006, the applicant was convicted of the murder of his wife and sentenced to life imprisonment. The body of his wife has never been found. He made his first application for parole in October 2018. In July 2021, the Parole Board found that he had not "cooperated satisfactorily in the investigation of the offence to identify the victim's location" and so refused the application.[1] He succeeded on an application for judicial review of that decision.[2] As a result, the decision was set aside, and the application for parole was "referred to the [Parole Board] for further consideration". Over the period from March 2022 to July 2023, a differently constituted Board considered the application further, before deciding on 12 July 2023 to again refuse the application for parole.
• [2] The applicant seeks to review the Board's decision made on 12 July 2023, on the following grounds:
  1. The decision was legally unreasonable because it lacked an evident and intelligible justification.
  2. The Board committed jurisdictional error by failing to discharge its statutory task, namely not dealing with material aspects of the information before it with respect to the credibility of the applicant and the issue of satisfactory cooperation under s 175O of the Corrective Services Act 2006 (Qld).[3]
• [3] The applicant seeks orders that the decision be set aside and the application for parole be remitted to the Board "to be decided according to law".

Factual context of the application and the decision

• [4] The background is set out in the previous decision of Davis J in Nicholson v Parole Board of Queensland [2021] QSC 325 (Nicholson 2021). Although initially the applicant denied any knowledge of what had happened to his wife, at his trial in February 2006 the applicant did not contest that he had killed his wife, nor that he did so by delivering a blow or blows with a hammer. He raised a number of arguments in his defence: that at the time he did the act which killed his wife, he did not intend to kill or do grievous bodily harm to her; he acted in self-defence; he acted under provocation; and the act which killed her was not a willed act.[4] All of those arguments were rejected by the jury, and he was convicted of murder.
• [5] Initially, the applicant told police he had disposed of his wife's body in the ocean off the Southport Spit. As summarised by Davis J in Nicholson 2021:

"[10] The Crown case was based substantially upon a series of letters which Mr Nicholson had written to various people, including police, before he was arrested and charged with Mrs Nicholson's murder. These letters were prepared at a time when Mr Nicholson was apparently contemplating suicide. It is unnecessary to analyse the letters in any depth. However, in the letters:

1. he admitted to killing Mrs Nicholson;
2. he said that he disposed of her body in the ocean off the Southport Spit;
3. he said he was going to kill himself. That contemplated him also entering the ocean;
4. he spoke of concerns for his young daughter who was then about three years of age.

[11] In one of the letters, Mr Nicholson spoke of hitting his wife with a hammer and:

'Then my stupidity really took hold. I wrapped Julie in the sheets and doona and [hid] her in the walk-in robe, made sure [Mr Nicholson's daughter] had gone back to sleep and dragged Julie down to the garage ... I put her into the back of my ute. At some point she was still breathing. But by the time I returned to tidy her up in the ute, she had stopped. ...'

'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."

• [6] The applicant spoke to police on 2 November 2017, before he became eligible for parole. As recorded in Nicholson 2021:

"[13] Before Mr Nicholson became eligible for parole, he was interviewed by police. That occurred on 2 November 2017. Detective Senior Sergeant Knight and Detective Senior Constable Brown told Mr Nicholson they were interviewing him as his parole was coming due and there were 'no body, no parole' considerations.[5] Mr Nicholson agreed to speak to police about Mrs Nicholson's whereabouts.

[14] During the interview, Mr Nicholson maintained that he had taken Mrs Nicholson's body to The Spit and placed her into the ocean on the western side of the land mass. Mr Nicholson drew a sketch showing the position where he had placed Mrs Nicholson in the water."[6]

• [7] The interview on 2 November 2017 went for about 45 minutes. The applicant descended into some detail about where he drove ("past main beach you go past Sea World ... and where, where it almost gets to the end and comes back around, just there"), where he placed the deceased's body ("on the Western side" of the spit, "[t]he eastern side of the ocean", "the calm water side" (p 540)), that he remembered "walking through sand" (p 540), and that he had "rolled her up in a ... drop sheet a plastic drop sheet and you know carried her out into the water..." (p 532). He referred to what he had seen on the tv about the "no body no parole legislation" and the need to show you have satisfactorily cooperated and said "[w]ell I gave that at the very beginning of the investigation 14 years ago" (p 534). He referred to being a "practising Christian", and to a passage from the bible "which basically says if you are asked under oath you have to give it" (p 535).
• [8] The applicant made his application for parole on 9 October 2018. Section 193A of the Corrective Services Act (as it then provided) applied to his application because the applicant is serving a period of imprisonment for a homicide offence and the body of the victim of the offence has not been located.[7] Section 193A(2) provided that the Board "must refuse to grant the application under section 193 unless the board is satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the victim's location". Section 193A(4) required the Board to ask the Commissioner of Police for a report about the prisoner's cooperation in that regard. That occurred, and what is referred to as the "first prisoner cooperation report" was provided to the Board on 3 December 2018.

"There have been a number of incidents of persons drowning or disappearing in the Southport Seaway or immediate surrounding area. Not all missing person's bodies have been located. Those bodies that have been located were found within three days of their disappearance on the eastern foreshore of South Stradbroke Island between the Seaway and Jumpinpin Passage.

Marine predators are prevalent in the Seaway area and many of the recovered bodies have shown signs of marine predation to various degrees.

Based on historical actions, it would have been expected that the deceased's body would have come ashore to the north of the Seaway a short time after her disposal. That this did not happen may be attributable to various factors including that the deceased body was weighted and sank, the body was consumed by marine predators, the body was taken out beyond the longshore current or weather events had contributed to the body being dispersed.

Given the time frame between the disposal and present, it is unlikely that any remains of the deceased's body would still be in the Seaway or the surrounding area."[9]

• [10] In the letter dated 3 December 2018 accompanying the first prisoner cooperation report, the Commissioner of Police said:

"Upon review of the [first prisoner cooperation report by DSS Knight], I can advise Mr Nicholson has not provided information which has assisted police in locating the victim's remains.

Although Mr Nicholson wrote letters in 2003 that provided information related to the circumstances of the victim's death and his disposal of her body, he refused to be interviewed by police when arrested and he did not give evidence at his trial.

Mr Nicholson first assisted police with information related to the disposal of the victim's body on 2 November 2017. The information provided did not afford any realistic opportunity of recovering the victim's remains."[10]

• [11] The hearing of the applicant's parole application was scheduled for 10 January 2019.[11] Shortly before the hearing and having been provided with the first prisoner cooperation report,[12] the applicant's lawyers contacted DSS Knight advising that the applicant wanted to speak with DSS Knight in order to provide further information about the location of the deceased's remains. The hearing was adjourned. DSS Knight and another police officer interviewed the applicant on 10 January 2019. The applicant changed his story dramatically. According to the second prisoner cooperation report prepared by DSS Knight on 25 March 2019,[13] the applicant told the officers that he "did go to the area previously indicated when interviewed on 2 November 2017 at the Southport Spit; however, after arriving he changed his mind and travelled to Cedar Grove with the deceased's body in the back of his utility". He gave some detail about how he travelled there, although could not name the roads he travelled, and about how he buried the deceased's body. About two weeks later, the applicant was permitted to go with the police officers to the Cedar Grove area to identify the location where he claimed to have buried the deceased's body (having been shown maps of the area prior to this). The applicant identified a property where he said the body may have been buried. An extensive search of the area "failed to result in any positive indications".
• [12] The applicant's explanation as to why he gave a different version in January 2019, from that which he had previously given, including in November 2017, was that when the police spoke to him in November 2017:

"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... 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 are at the moment she is in Korea on a student exchange ... I want to try and get this all done and finalised before she returns..."[14]

• [13] As noted in Nicholson 2021 at [33], "[b]y way of summary, DSS Knight said this in the second cooperation report:

'Truthfulness, completeness and reliability of information or evidence provided by the prisoner in relation to the victim's 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.'"

• [14] The ultimate conclusion in this report is that the information provided by the applicant was not considered to be timely, reliable or complete.
• [15] Following the receipt of the second prisoner cooperation report, the Board met a number of times to consider the applicant's application. As already noted, the Board was not satisfied the applicant had cooperated satisfactorily and so was bound to refuse the application, under s 193A(2) of the Corrective Services Act. That decision of the Board, made on 13 July 2021, was set aside following a successful application for judicial review. The application succeeded on a ground that the Board had committed jurisdictional error by failing to consider, evaluate or deal with material aspects of the information before it, concerning the credibility of the applicant's January 2019 account.[15] In some respects, that decision was based on a finding that the Board had misunderstood aspects of the evidence, in others that the Board did not consider aspects of Mr Nicholson's account. It was also found that "there was no consideration (at least expressly) of any motivation that Mr Nicholson would have to lie about Cedar Grove".[16]
• [16] The order setting aside the previous decision was made on 10 December 2021. That day, DSS Knight wrote to the applicant, referring to the Court's decision and saying:

"The purpose of this correspondence is to reinforce the commitment of the Queensland Police Service to return homicide victims to the surviving families. If you are inclined to provide any additional information regarding the location of Julie's body, I'd welcome the opportunity to further discuss this matter."[17]

• [17] For the purpose of further considering the application for parole following Nicholson 2021, the Board was differently constituted. By this time, the legislation had been amended. As required by what is now s 175M of the Corrective Services Act, the Board requested and obtained a third prisoner cooperation report, dated 26 April 2022.[18] This report annexed the two previous prisoner cooperation reports as well as DSS Knight's letter of 10 December 2021. It records that "[n]o response was received from Nicholson". The report also includes the following:

(a) "The first disclosure made by Nicholson that he buried the deceased on a property in the Cedar Grove area was not made until 10 January 2019, more than 15 years after the deceased's murder. The information provided by Nicholson is not timely."

(b) Under the heading "[t]ruthfulness, completeness and reliability of information ...", the paragraphs set out at paragraph [13] above are repeated and, in addition, it is said that "[w]hen considering the two contrasting locations identified by Nicholson at the Southport Spit and Cedar Grove, it must be recognised that if there is any truth in either of those locations, then at least one of those sites must be consciously untruthful".

(c) The conclusion that the "information previously provided by Nicholson is not timely, not reliable or complete regarding the disposal of the deceased's human remains".

• [18] The Board also had before it a Parole Board Assessment Report, prepared in October 2018. I infer this report was also before the Board when it made the earlier decision, although it is not referred to in Nicholson 2021. The report records that the applicant was interviewed on 22 October 2018.[19] On p 4 of the report, reference is made to the letters the applicant handed in to the Salvation Army on 17 August 2003. The report goes on to say that the applicant "reported a different account of events during interview", which is taken to be a reference to the interview on 22 October 2018. It is unnecessary to refer to the detail of this account (in relation to the altercation between the applicant and his wife which resulted in her death), other than to note that it included that when the applicant "discovered his wife was dead", "[h]e stated he was mostly concerned about his daughter possibly seeing her mother like this and recalled thinking 'I just have to get her out of here before she wakes up'. [He] stated he loaded his wife into the Ute and chose to dispose of her in the ocean as this is where she had wanted her ashes scattered."[20]
• [19] The Board also had before it an affidavit of the applicant, sworn on 6 June 2019.[21] Although this predated the previous decision of the Board, it is not clear whether this affidavit was before the Board at that time; but it seems reasonable to infer that it was. This affidavit includes the following:

"4. On 8 October 2018 I lodged my application for parole.

1. 5. After lodging my application for parole I was granted legal aid in relation to the 'no body no parole' aspect of my parole application.
2. 6. On my instructions, my legal representatives contacted police to advise I wished to provide further information in relation to the location of the deceased's body.
3. 7. Police subsequently attended at the Wolston Correctional Centre to see me and I participated in interviews with them. I also accompanied police to attempt to identify the site where I disposed of the deceased's body.
4. 8. I am aware my parole application is now listed for hearing on 7 June 2019.
5. 9. After Julie's death I wrote letters describing Julie's body being placed in the Southport seaway. At the time of writing those letters I intended to commit suicide at sea and thought that the version I gave would give some closure and enable family to hold a funeral.
6. 10. Although I travelled to the ocean to commit suicide, I then decided not to commit suicide as I wanted to be alive for my daughter and to support my niece in an application for my daughter to reside with her. I did not speak to police further at that time as a result of legal advice, and I decided just to leave things be.
7. 11. I received no notice of police coming to talk to me about the location of the deceased's body prior to their attendance on me at the Wolston Correctional Centre in November 2017. I was caught unaware by their attendance and so kept to the version of the deceased's body being put into the Southport seaway.
8. 12. I have thought more about matters and decided to tell the truth. I knew there was a prospect that I would decide to give evidence on oath as a result of my application, and I do not want to lie under oath. I instructed my lawyers to contact police so that I could provide further information to try to locate the deceased's body.
9. 13. I have told police everything I can to assist in locating the deceased's body and am as confident as I can be, having been to the location only once at night time some considerable years prior, that the area I identified to police is the area where I put the deceased's body."[22]

• [20] Also before the Board was a 54 page handwritten letter from the applicant, dated 3 May 2021.[23] The letter included a number of attachments, the first of which was a copy of another handwritten document, which appears to have been written on 2 January 2019, and appears to include instructions to the applicant's lawyers - it begins by saying "we should immediately withdraw (delay) my parole application (or put on hold)" (p 1026). The cover page of the attachment refers to the applicant attending catholic mass that day, and realising that "I will soon be testifying under oath", and includes the statement that "as I will be under oath, I remembered [certain parts of the bible] and therefore I must, regardless of the consequences to me, state and ask the following..." (p 1026). The following is a five page document (of instructions), which includes the statements that "[p]rovided the police are agreeable to it all happening urgently (before my daughter's return from Korea) I will take them to the location where I buried my wife, Julie, body" (p 1027) and "I realise that by my actions I am most likely removing any hope of parole in the future, if at all, but it will allow final closure for [the applicant's daughter]" (p 1028). This document also includes the explanation as to "why the change in my actions?", by reference to the fact that his daughter was doing her final school exams in November 2017 and "did not need any dramas caused by me" (p 1028).
• [21] The Board also had before it additional material that was not before the previous Board when it made the earlier decision. The receipt of that additional material was opposed by the applicant, but for reasons given on 2 September 2022, the Board decided to accept it.[24] The additional material before the Board included the following things:

(a) An affidavit sworn by the applicant on 9 January 2004, in a proceeding in the Supreme Court between himself (as applicant) and the Public Trustee (as respondent), seeking the appointment of statutory trustees for the sale of a property previously jointly owned by the applicant and his wife. In this affidavit, the applicant said that "[f]ollowing the death of my wife in or about July 2003, I placed her body into the seaway at Southport... To the best of my knowledge, my wife's body has not since been located".[25]

(b) The decision in that proceeding, making orders for the appointment of statutory trustees for sale - Re Clive Anthony Nicholson [2004] QSC 480 - which refers, at [2], to the applicant's sworn statement about what he did with his wife's body following her death.[26]

(c) Transcript of committal proceedings in a matter of the police against Mr RS on 3 September 2007. Mr RS was charged with murder in custody. The applicant gave sworn evidence at the committal hearing as a witness to what I infer was the incident giving rise to the charge. His evidence included that he became a born-again Christian on 1 July 2005 (p 752). In the course of cross-examination, which sought to challenge his credibility as a witness, the various lies he told police and other people, at the time of his wife's death, were put to him. Part of that exchange was as follows:

"MR EAST: In the weeks after your wife's death, you told people, including staff at your daughter's kindergarten that your wife was bedridden with illness? -- Yes.

You made an elaborate story to some people that she had in fact run away with an old boyfriend? -- Yes.

You had explained to the police that you'd had telephone calls from her and a subsequent search of telephone records showed that to be a lie? -- Yes.

You told some people that your wife suffered from a mental condition? -- Yes. A possible mental condition, I think is what, how it was -----

All right. And that she had simply run away and deserted you and failed to make any contact? -- Yes.

Because by that stage, her body was floating in the sea way off the Gold Coast; wasn't it? -- Yes."[27]

(d) Transcript of the criminal trial of Mr RS, on 21 July 2008, at which the applicant gave sworn evidence for the Crown, and similar questions were put to him in cross-examination to those set out above, including the last emphasised point, with which the applicant agreed.[28]

• [22] The relevant provisions were amended in 2021.[29] They apply to the applicant's application because it was made, but not decided, before the commencement of the new provisions.[30]
• [23] According to the explanatory notes to the relevant Bill, the amendments were designed to strengthen the no body, no parole framework:

No Body, No Parole (NBNP) laws were enacted by the Corrective Services (No Body, No Parole) Amendment Act 2017, which commenced on 25 August 2017. No Body, No Parole refers to the principle that a prisoner convicted of a homicide offence who refuses to adequately assist police in locating a victims' remains should not be granted parole. Withholding the location of a body extends the suffering of victims' families and all efforts should be made to attempt to minimise this sorrow.

As such, a primary focus of NBNP is to encourage cooperation from these prisoners by denying them parole release until such time as the Board is satisfied the prisoner has satisfactorily cooperated in identifying the location or last known location of the victim's remains.

Currently, consideration of NBNP is triggered by a relevant prisoner applying for parole. Due to the nature of their offending, this cohort of prisoner is typically sentenced to longer terms of imprisonment, meaning there can be a long period of time between sentencing and consideration of NBNP. Changes to the environment, such as bushfires, floods, development or animal activity may impact any opportunity to locate the remains in that time. A prisoner may also pass away before they are incentivised to cooperate.

The amendments strengthen the original intention of the NBNP policy by incentivising prisoners to provide earlier cooperation in locating the remains of a homicide victim by allowing the Board to consider the prisoner's cooperation and decide whether or not to make a no cooperation declaration in relation to the prisoner at any time after sentencing."

• [24] Prior to the 2021 amendments, the question of a prisoner's cooperation only arose for consideration when they applied for parole. Following the amendments, the Board may decide to consider this at any time (see s 175K(b) and s 175M(1)(c); see also Armitage v Parole Board Queensland [2023] QCA 239 at [28]).
• [25] The applicant is a "no body-no parole prisoner" within the meaning of s 175C of the Corrective Services Act. When a no body-no parole prisoner applies for parole, the Board must consider whether the prisoner has given "satisfactory cooperation". If the Board is not satisfied the prisoner has given satisfactory cooperation, the Board must make a "no cooperation declaration" about the prisoner (s 175L). The effect of doing that is:

(a) the Board must refuse the application for parole (s 193A(2)); and

(b) the prisoner may not apply for parole under s 176 (exceptional circumstances parole) or s 180 (other parole) unless they are given a notice under s 175Q (a notice from the Board that the Board is satisfied the prisoner has given satisfactory cooperation) (s 175P(2) and s 180(2)(d)).

• [26] A prisoner who is the subject of a no cooperation declaration may make a reconsideration application (s 175P(2)(d) and s 175R); but the bases on which a reconsideration application may be granted are fairly confined (s 175S).
• [27] Section 175B defines "cooperation" in this context to mean "the cooperation given by the prisoner -

(a) in the investigation of the homicide offence to identify the victim's location; and

(b) before or after the prisoner was sentenced to imprisonment for the offence".

• [28] The "victim's location" is defined to mean the location, or the last known location, of every part of the body or remains of the victim of the offence; and the place where every part of the body or remains of the victim may be found.
• [29] In deciding whether a no body-no parole prisoner has given satisfactory cooperation, s 175O provides that the Board must have regard to certain material (including the "commissioner's report" about the prisoner) and may have regard to other information the Board considers relevant. A "commissioner's report" is defined in s 175B as a report by the commissioner of the police service containing:

(a) a statement whether the prisoner has given any cooperation in relation to the homicide offence for which the prisoner is serving a sentence of imprisonment; and

(b) if the prisoner has given any cooperation - an evaluation of:

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

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

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

• [30] The Ministerial guidelines, made under s 242E of the Corrective Services Act, contain further instructions about the Board's task of deciding whether a no body-no parole prisoner has given satisfactory cooperation. The guidelines include paragraph 7.4, which provides that:

"In considering whether cooperation is 'satisfactory', the Board must have regard to the following matters collectively as they are relevant to the individual circumstances:

1. a) timeliness of the cooperation;
2. b) nature and extent of the cooperation;
3. c) truthfulness, completeness and reliability of the cooperation; and
4. d) significance and usefulness of the cooperation."

• [31] It can be seen that these reflect the matters the commissioner's report is required to evaluate (see s 175B).
• [32] The purpose of the "no body-no parole" provisions was explained, when they were first introduced in 2017, as "predicated on the notion that by making parole release for particular prisoners contingent on them satisfactorily cooperating in the investigation of the offence to identify the victim's location, it will encourage and provide incentive for these prisoners to assist in finding and recovering the body or remains of the victim. This will in turn, it is hoped, offer some comfort and certainty the families of the victims". In that regard, it was recognised that "withholding the location of a victim's body or remains prolongs the suffering of the families and all efforts should be made to attempt to minimise this sorrow".[31]

• [33] After detailed consideration of the application, with multiple oral hearings and with the benefit of written submissions from counsel for the applicant as well as counsel assisting the Board,[32] the Board decided on 12 July 2023 to make a no cooperation declaration about the applicant.[33]
• [34] After setting out, at some length, the legislative framework and the factual background (by reference both to large portions of the reasons in Nicholson 2021 - as invited by counsel for the applicant[34] - and by reference to the further material placed before the Board), the Board summarised the submissions made by both the applicant and counsel assisting the Board.
• [35] In that regard, counsel for the applicant submitted to the Board that a "critical consideration to be determined by the Board is the powerful motivation the Applicant now has, to tell the truth"; put another way, it was said that a "critical question in determining whether the Applicant has given 'satisfactory cooperation' is what (if any) motivation he might have to lie now".[35] The "powerful motivation" to tell the truth "now" (meaning, in 2019, when the applicant told police he buried his wife's body at Cedar Grove) was said to be "the adverse consequences to the Applicant if the Board finds he has failed to give satisfactory cooperation". It was submitted 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".
• [36] As against that, counsel assisting the Board submitted that, on a proper analysis of all the material, the Board would be unable to accept that the Cedar Grove account is true and, further, that a careful analysis of all the other relevant considerations did not, on balance, support a finding that the applicant has provided satisfactory cooperation.[36]
• [37] The reasoning process outlined by the Board in the Decision is as follows:

(a) There is no direct evidence proving or disproving that the applicant disposed of the victim's remains at the Southport Spit or Cedar Grove. The view of Davis J in Nicholson 2021 was that both are possible.[37] The further material placed before the Board did not alter that position.[38]

I pause to note that the Board also recorded a submission from counsel assisting that "the possibility remains that the Southport Seaway account and the Cedar Grove account are both false".[39]

(b) There is considerable detail in the Cedar Grove account, and it is not held against the applicant that he was unable to positively identify the place where the body was buried.[40] Earlier, the Board also noted the principle that it is not a pre-requisite to a finding of "satisfactory cooperation" that the victim's remains be found.[41]

(c) DSS Knight acknowledged that the applicant was consistent in the information he provided in their various discussions in January 2019 about the Cedar Grove account.[42]

(d) In contrast with the Cedar Grove account, from 17 August 2003 to 25 October 2018, the applicant consistently stated he had disposed of the victim's remains at the Southport Spit:

(i) in the handwritten letters on 17 August 2003;

(ii) in the applicant's affidavit sworn on 9 January 2014;

(iii) under oath at the committal hearing on 3 September 2007;

(iv) under oath at the trial on 21 July 2008;

(v) on 2 November 2017 when interviewed by DSS Knight; and

(vi) in his interview on 22 August 2018 which formed part of the Parole Board Assessment Report.[43]

(e) It was accepted by senior counsel for the applicant that in now advancing the Cedar Grove account, the applicant lied in his affidavit sworn 9 January 2004 and lied under oath at the committal hearing and the trial.[44]

(f) The "powerful motivation for the Application now to tell the truth" also existed on 2 November 2017, when the applicant maintained his account of disposing of the victim by placing her in the Southport Seaway, during his 47 minute recorded interview with police.[45]

(g) The Board had listened to the recorded interview from 2 November 2017, and said it was clear the applicant took part of his own free will. The questions were non-leading and there was no "harrying" of the applicant by the police. The answers given by the applicant appeared to be considered and in response to the questions asked. The applicant appeared to engage well and have a good rapport with DSS Knight and seemed relaxed. The applicant provided a detailed account of how he disposed of the victim's remains at the Southport Spit. When asked to do so, he provided a handwritten drawing of the relevant area where he had disposed of the victim's remains at the Southport Spit.

"The Board accepts the making of a no cooperation declaration may be a powerful motivation for the Applicant and a potential reason for the proffering of the Cedar Grove account. But that motivation alone is not enough in the circumstances of this application for the Board to consider the Cedar Grove account to be truthful, credible or reliable."[54]

• [38] For those reasons, and taking into account the mandatory considerations under s 175O of the Corrective Services Act[55] and human rights considerations,[56] the Board made the following decision:

"[80] The Board does not consider the information provided by the Applicant in relation to the victim's location to be truthful, credible or reliable.

[81] The Board has decided the Applicant has not given satisfactory cooperation in the investigation of the homicide offence to identify the victim's location.

[82] Accordingly, the Board makes a no cooperation declaration about the Applicant."

• [39] The first ground on which the applicant seeks to review the Board's decision is that "the decision was legally unreasonable because it lacked an evident and intelligible justification". By reference to s 20(2)(e) and s 23(g) of the Judicial Review Act 1991 (Qld), the applicant contends the making of the decision was an improper exercise of the power conferred by the relevant provisions of the Corrective Services Act, because "it was an exercise of a power that is so unreasonable that no reasonable person could so exercise the power".
• [40] The articulation of this ground borrows from the reasons of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [76], where their Honours said:

"As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion 'if upon the facts [the result] is unreasonable or plainly unjust'. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."[57]

• [41] Reasonableness is a statutory implication. As French CJ said in Li at [28]:

"... it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense."[58]

• [42] In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439, at [19], Kiefel CJ, Bell, Gageler and Keane JJ explained, by reference to Li, that:

".... '[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made' such that '[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.'"[59]

• [43] It has been emphasised that the test for unreasonableness is necessarily stringent,[60] because "the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion".[61] It is strictly supervisory; it does not involve the court reviewing the merits of the decision under the guise of an evaluation of reasonableness nor does it involve the court substituting its own view as to how the discretion should be exercised.[62] As French CJ said, in Li at [30]:

"The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker."

• [44] The following explanation from the decision of the Full Court of the Federal Court (Allsop CJ, Robertson and Mortimer JJ) in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] is also helpful:

"In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court's supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls 'an area of decisional freedom': it has the character of a choice that is arbitrary, capricious or without 'common sense'. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking 'an evident and intelligible justification'. ..."

• [45] Although not expressly addressed in the submissions, the applicant's argument for the purposes of this first ground is outcome focussed - contending that the conclusion expressed in [68] and [80] of the Decision is "bereft of an evident or intelligible basis" and is therefore legally unreasonable.[63]
• [46] The standard of reasonableness is informed by the scope and purpose of the statute conferring the discretionary power.[64] It is necessary to consider the Decision in the context of the statutory power, any guidance for its exercise, the material before the Board and the reasons provided by the Board.[65]
• [47] The Board is established by the Corrective Services Act (s 216). Its functions are to decide applications for parole orders and to perform other functions given to it under the Corrective Services Act (s 217). The overarching purpose of the Act, as set out in s 3(1), is "community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders". Section 3(2) states that the Act "recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender's entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded".
• [48] Relevantly, in this case the decision for the Board was not whether to grant or refuse the parole application (cf The decision for the Board was whether to make a "no cooperation declaration", which turned on whether the Board "is not satisfied [the applicant,] a no body-no parole prisoner has given satisfactory cooperation" Having determined that it was not satisfied the applicant had given satisfactory cooperation, the refusal of the parole application was mandated by operation of the statute

"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."[70]

• [52] In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, the Full Court of the Federal Court (Allsop CJ, Besanko and O'Callaghan JJ) helpfully summarised the legal principles where the exercise of a power depends on a state of satisfaction:

"[21] The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [131] and the cases cited at footnote 109.

[22] The expression of the requirements of lawful satisfaction have been set out in a number of High Court cases beyond which it is unnecessary to go ... [references omitted]

[23] Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell,[71] of Gibbs J in Buck v Bavone,[72] of Starke J in Boucaut Bay[73] (approved by Windeyer J in Brian Hatch Timber[74]) and of Gummow J in Eshetu should be noted.

[24] Chief Justice Latham in R v Connell approached the matter as presenting the question: 'whether or not there was evidence upon which [the decision-maker] could be satisfied that [the] rates were anomalous'.

[25] Justice Gibbs in Buck v Bavone said (amongst other things) the decision-maker must 'act in good faith; [he or she] cannot act merely arbitrarily or capriciously' and 'where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... [the] decision could not reasonably have been reached'.

[26] Justice Starke in Boucaut Bay said, amongst other things, that the decision-maker 'must not act dishonestly, capriciously or arbitrarily ... So long, however, as the Minister acts upon circumstances ... giving him a rational ground for the belief entertained, then ... the Courts of law cannot and ought not interfere'.

[27] Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone , said the following at [137]:

'.... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.'"

• [53] In this court, the applicant repeated the submission that "the critical question for the Board in determining whether Mr Nicholson had given 'satisfactory cooperation' was what (if any) motivation he might have to lie in giving the second account" [that is, the Cedar Grove account]. The applicant submits that the Board "did not seek to resolve that critical question in making its decision". The applicant notes that, while the Board accepted the making of a no cooperation declaration may be a powerful motivation for him, and reason for him to give the Cedar Grove account, the Board nonetheless reached the conclusion expressed in [68] of the Decision, that:

"... that motivation alone is not enough, in the circumstances of this application, for the Board to consider the Cedar Grove account to be truthful, credible or reliable."

• [54] The applicant contends that conclusion is "bereft of an evident or intelligible basis".[75]
• [55] In further developing that submission, the applicant says there is "no evident and intelligible justification for, nor rational connection between" that finding by the Board at [68], and the matters which preceded that conclusion. In that regard, he submits:

(a) The Board did not identify "the circumstances" that founded its judgment that the Cedar Grove account is not truthful, credible or reliable and that the applicant had not given satisfactory cooperation. As to this, the applicant submits:

"The only sensible reading of [paragraph [68] of the Decision] is that the Board accepted that the 'no-cooperation' declaration may be a powerful motivation for Mr Nicholson to tell the truth in proffering the Cedar Grove account. Having accepted that powerful motivation, logic demanded that the Board state why that 'is not enough' to reach the conclusion that the Cedar Grove account is truthful, credible or reliable. The Board failed to do so, thereby depriving the decision of an evident and intelligible justification..."[76]

(b) There is no rational connection between the various steps in the Board's reasoning, from [48]-[68] (summarised above), and the implicit conclusion by the Board that the Cedar Grove account is a lie. As to this, the applicant says:

"The height of [the Board's] analysis is that either the Cedar Grove or The Spit account must be a lie; Mr Nicholson has told lies under oath despite his professed faith; and the Board is not persuaded that Mr Nicholson was taken by surprise when visited by police on 2 November 2017 and could have declined the interview. Again, having rightly accepted that the 'no-cooperation' declaration may be a powerful motivation for Mr Nicholson to tell the truth in volunteering the Cedar Grove account, there is no sensible pathway between [paragraphs [48] and [68] of the Decision] and an implicit finding that [that] account is not truthful, credible or reliable."[77]

• [56] The applicant's "principal contention" is said to be that:

"... the decision lacked a comprehensible foundation because there was no stated rational connection between the finding that Mr Nicholson had a powerful motivation to tell the truth in giving the Cedar Grove account and the finding that this account was not truthful, credible or reliable."[78]

• [57] I do not accept that the Board's decision is legally unreasonable. In my view, the Board's reasons do provide an evident and intelligible justification for the Board's decision that it is not satisfied the applicant has given satisfactory cooperation. The fundamental reason for that, is that the Board "does not consider [any of the] the information provided by the Applicant in relation to the victim's location to be truthful, credible or reliable".[79]
• [58] The applicant's "principal contention", and part of his submission quoted at [55](a) above, misstates the finding of the Board at [68]. The Board did not positively find that the applicant had a powerful motivation to tell the truth. The Board accepted, in [68] of the Decision, that "the making of a no cooperation declaration may be a powerful motivation for the applicant and a potential reason for the proffering of the Cedar Grove account". It went on to conclude - I interpolate "even assuming that to be the case" - that "that motivation alone was not enough in the circumstances of this application for the Board to consider the Cedar Grove account to be truthful, credible or reliable". Contrary to the applicant's submission, the "circumstances of this application" are set out at length in the preceding paragraphs, including the factual background (in [22]-[27] of the Decision) and the process of reasoning (in [48]-[68] of the Decision). Those circumstances rationally and logically support the conclusion reached by the Board that it could not be satisfied, in essence, that anything the applicant had said - any information he provided in relation to the victim's location - was truthful, credible or reliable. The "why" is obvious - because he told a completely different, detailed and consistent story, including on oath, as to what he had done with his wife's body, in August 2003, January 2004, September 2007, July 2008, November 2017 and October 2018, including at times when he knew the "no body-no parole" provisions existed and applied to him.
• [59] The applicant also argued that the Board's decision is "infected by speculation" - referring, for example, to the Board's observation that, having regard to the interview with police in November 2017, if his reason for not telling police then the Cedar Grove account was because of privacy concerns for his daughter, it was difficult to understand why the applicant did not simply explain that to police then. The applicant submits "it is mere conjecture to rely on that fact to, in effect, reject that explanation and seemingly draw an adverse conclusion about his credibility for failing to tell police of his concerns on 2 November 2017". There is nothing "seemingly" about this aspect of the Board's decision. It did draw an adverse conclusion about the credibility of the applicant, from the whole of the circumstances surrounding the statements he had made from 2003 to 2019 about the location of his wife's body. This was but one element of the Board's reasoning in that regard, and a matter it was entitled to consider, having listened in full to the recording of the interview. As the applicant accepts in any event, even if his point in this regard were accepted, this would not render the decision legally unreasonable. His principal contention in that regard is the one outlined above, which I have rejected.

Ground 2 - failing to consider certain matters

• [60] Under this ground, the applicant submits the Board committed jurisdictional error by failing to discharge its statutory task, by "not dealing with the material aspects of the information before it with respect to the credibility of Mr Nicholson and the issue of satisfactory cooperation under s 175O of the Act".
• [61] There is no dispute that, despite the absence of any express obligation to do so (cf s 175O), in deciding whether to make a no cooperation declaration, the Board is, implicitly, obliged to consider any submissions given to the Board by the prisoner in response to an invitation to do so under s 175N(2).[81] The discharge of that obligation requires the Board to "read, identify, understand and evaluate" the submissions.[82] As explained by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24]:

"[24] ... the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged to 'make actual findings of fact as an adjudication of all material claims' made by a former visa holder.

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26] Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'. The court does not substitute its decision for that of an administrative decision-maker.

[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error."[83]

• [62] As already noted, the applicant submitted to the Board that the "critical question" for the Board, in deciding whether he had given satisfactory cooperation, was what (if any) motivation he might have to lie "now" (that is, when proffering the Cedar Grove account); and that the Board should answer that question favourably to the applicant, by concluding he had no motivation to lie now, and therefore the Board should be satisfied he had, now, given satisfactory cooperation. Under this second ground of review, the applicant contends the Board failed to consider the following points relied upon by him which were said to support a favourable answer to the "critical question":

(a) First, that as at 2017, the material before the Board, in the first prisoner cooperation report, particularly the evidence of SS Whitehead (referred to in paragraph [9] above) "supported a favourable outcome" for th[84]applicant;84

(b) That it was the applicant who initiated the meetings with police on 10 and 17 January 2019, when he revealed his previous explanation of the location of his wife's body as a lie;

(c) That in doing so, he knew he would "most likely [remove] any hope of parole in the future at all";

(d) Having regard to the evidence of SS Whitehead, and the "inherent unlikelihood" of finding Mrs Nicholson's remains, the applicant had "everything to lose and nothing to gain by giving the Cedar Grove account"; and

(e) The fact that Mr Nicholson repeated his version about placing Mrs Nicholson's body in the seaway, on oath, in an affidavit in January 2004, at the committal hearing in September 2007 and at the trial in July 2008 "was not probative of the critical issue before the Board because it did not provide an answer to what (if any) motivation Mr Nicholson had to lie now".[85]

• [63] The applicant acknowledges the Board referred to these submissions in the Decision (relevantly, the Board did so at [31]-[34] and [36]), but submits it "failed to engage" with them. He submits that the Board's "examination of motivation was founded solely on the motivation which inherently exists in the legislation", but it did not consider the broader submission that "he had everything to lose in coming forward with this account and nothing to gain" because of the evidence from SS Whitehead.[86]
• [64] It is apparent from reading the whole of the Decision that the Board did have regard to and appropriately consider the applicant's submissions, such that it cannot be concluded that the Board failed to carry out its statutory task.
• [65] I observe that the characterisation of the "critical question", as "what, if any, motivation the applicant might have to lie" in giving the Cedar Grove is unhelpful and arguably misconceived. The critical question for the Board was whether it was (or was not) satisfied the applicant had given satisfactory cooperation in the investigation of the murder offence, to identify the victim's location, whether that was before or after he was sentenced for that offence (s 175L and s 175B). Informed by both the contents of the commissioner's report (to which the Board had to have regard) and the Ministerial guidelines, the matters the Board was required to consider in forming its opinion about the cooperation provided by the applicant included "the truthfulness, completeness and reliability of any information or evidence" the applicant had provided in relation to the victim's location.
• [66] Posing the question, "why would he lie now?", may be accepted to be a logical submission to make, to advance the applicant's underlying argument - that the Board should be satisfied he has, now, given satisfactory cooperation. But it is neither the "critical" question for the Board, having regard to the statutory provisions, nor is it a question amenable to answer by the Board by anything other than speculation.[87] The Board did properly consider the applicant's submission in this regard. It did not attempt to answer the rhetorical question, "why would he lie now?", but that was appropriate in my view. The Board asked itself the right question, by considering the truthfulness, completeness and reliability of the information the applicant had provided over the whole of the period from 2003 to 2019.

• [70] On an application for judicial review such as this, the analysis is confined to the legality of the Decision, not its merits.[90] I am not persuaded that the Decision is legally unreasonable; nor that the Board failed to discharge its statutory task, by not dealing with aspects of the submissions put to it by the applicant in relation to his credibility. The application for a statutory order of review will therefore be dismissed.
• [71] I will hear the parties as to costs.

[1] As required by s 193A(2) of the Corrective Services Act 2006 (Qld), as it then provided.

[2] Nicholson v Parole Board of Queensland [2021] QSC 325.

[3] In the application filed on 8 August 2023, there was a third ground (ground 1), by which it was contended the Board denied the applicant natural justice. That was not pressed at the hearing of the application.

[4] Nicholson v Parole Board [2021] QSC 325 at [4]- [8].

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

[6] Emphasis added. The transcript of the interview is exhibit SFJ-30 to Ms Furlan-Johns' affidavit filed 27 September 2023. Unless otherwise indicated, references to exhibits in the footnotes below are exhibits to this affidavit; and references to page numbers are to the page numbers of the exhibits.

[7] Section 193A(1), as at December 2018. See now s 175C of the Corrective Services Act 2006, definition of "no body-no parole prisoner", which is in equivalent terms to s 193A(1).

[8] Exhibit SFJ-15. See also the summary of the first prisoner cooperation report in Nicholson 2021 at [16]-[19].

[10] Exhibits SFJ-14, SFJ-15 and SFJ-32.

[11] Applicant's submissions [in this proceeding] at [14].

[14] Exhibit SFJ-35 (p 580). See also Nicholson 2021 at [21]-[31].

[15] Nicholson 2021 at [67], [77]-[89].

[21] Paragraph [44] of Ms Furlan-Johns' affidavit and exhibit SFJ-9.

[23] Exhibit SFJ-85 (commencing at p 966). See [44(eee)] of Ms Furlan-Johns' affidavit.

[27] Exhibit SFJ-51 (p 756). Emphasis added.

[29] By the Police Powers and Responsibilities and Other Legislation Amendment Act 2021 (Qld).

[30] Section 490ZE of the Corrective Services Act.

[31] Explanatory notes to the Corrective Services (No Body, No Parole) Amendment Bill 2017, at p 1. See also Armitage v Parole Board Queensland [2023] QCA 239 at [34] and [35].

[32] The procedural history of the further consideration of the application is set out in [26]-[43] of Ms Furlan-Johns' affidavit.

[41] Decision at [45], referring to Renwick v Parole Board of Queensland [2019] QCA 269; [2019] 2 QR 645 at [10].

[43] Decision at [51]. In relation to item (vi), the date "22 August 2018" appears to be an error - the correct date for this interview is 22 October 2018. See exhibit SFJ-4 (Parole Board Assessment Report) at p 61 (date of prisoner interview - 22/10/2018) and pp 64-65 (which is pages 38 and 39 of the "Parole Board Record Book", to which the Board refers in footnote 57 of the Decision (as the reference for what appears in item (vi)).

[51] Decision at [64]-[65]. Emphasis in the original.

[53] Decision at [67]; referring also to Renwick v Parole Board Queensland [2019] QCA 269 at [29].

[57] Underlining added. See also at [105] per Gageler J (as his Honour then was).

[58] See also Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [43].

[60] See Li at [108]-[113] per Gageler J; Francis v Crime and Corruption Commission [2015] QCA 218 at [33]; Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578 at [65]; and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33].

[61] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] per Kiefel CJ.

[62] Li at [66]; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37 per Brennan J; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 per Mason CJ; see also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [59].

[63] Applicant's submissions at [6]. See Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [60[-[61]; cf Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [31] - "illogical or irrational reasoning central to the reaching of the relevant state of satisfaction" may be characterised as an identifiable [jurisdictional] error, as opposed to an outcome focussed conclusion without any specific error being identified. The approach to unreasonableness as a ground of review is the same, regardless of the context in which it is employed.

[64] Li at [24] per French CJ and at [67] per Hayne, Kiefel and Bell JJ.

[65] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [63]- [64].

[66] See also the definitions of "cooperation and "victim's location" in s 175B; and "homicide offence" in schedule 4.

[67] Calanca v Parole Board Queensland [2019] QSC 34 at [57]; Burridge v Parole Board Queensland [2021] QSC 244 at [61].

[68] Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [57] per French CJ.

[69] Referred to in Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [41] in the reasons of Gleeson CJ and McHugh J.

[70] See also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37 per Brennan J.

[71] R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42; (1944) 69 CLR 407 at 430.

[72] Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119.

[73] Boucaut Bay Co Ltd (In Liquidation) v The Commonwealth [1927] HCA 59; (1927) 40 CLR 98 at 101.

[74] FCT v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; (1972) 128 CLR 28 at 57.

[75] Applicant's submissions at [4]-[6].

[76] Applicant's submissions at [38]. Underlining added.

[77] Applicant's submissions at [39].

[78] Applicant's submissions at [42].

[81] Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [36(d)]; see also Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462 per Black CJ.

[82] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24].

[84] Transcript of oral submissions in this Court at p 1-18.

[85] Applicant's submissions at [48].

[86] Transcript of oral submissions in this Court at p 1-19.

[87] R v E (1996) 39 NSWLR 450 at 464C.

[88] See paragraphs [9] and [10] above.

[89] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 208 ("the telling of a lie will ... affect the credit of the [person] who tells it"); see also FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1 at [91]- [93].

[90] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [23]; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.