A no body-no parole prisoner will remain behind bars after the Supreme Court dismissed his application for a statutory review of a “no co-operation declaration” made about him.
Clive Anthony Nicholson was sentenced to life imprisonment in 2006 for the murder of his wife, who disappeared in 2003, and whose body has never been found.
Initially Nicholson told police he disposed of his wife’s body in the ocean off the Southport Spit on the Gold Coast, but in 2019, he told police he buried her body in a shallow grave in Cedar Grove in Logan.
Nicholson’s application for parole in 2021 was refused. The decision was set aside after a judicial review and referred back to the board for further consideration. In 2023, a differently constituted board again refused the application for parole.
Nicholson challenged the decision, arguing it was legally unreasonable because it lacked an evident and intelligible justification. He contended the board had made a jurisdictional error by failing to discharge its statutory task of dealing with material aspects of the information in determining his credibility and the issues of satisfactory co-operation under the Corrective Services Act 2006 (Qld).
In a decision delivered in Brisbane on Thursday, Supreme Chief Justice Bowskill dismissed Nicholson’s application.
“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,” she said in providing the factual context of the application and the decision.
“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. All of those arguments were rejected by the jury, and he was convicted of murder.”
She said the board last year deemed the new information Nicholson provided about the victim’s location to be not “truthful, credible or reliable”. It decided he had not given satisfactory co-operation and accordingly, made a “no co-operation declaration” about him, which under the Act, meant it must refuse his application for parole.
Nicholson contended that the decision lacked an evident and intelligible justification because “…there was no stated rational connection between the finding that (he) 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”.
Chief Justice Bowskill said she did not accept the board’s decision was 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 co-operation,” she said.
“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’.
“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.”
Chief Justice Bowskill said it was evident “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”.
“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 co-operation.
“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.
“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.”
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