Bulger v Queensland Community Corrections Board [1993] QSC 175

: :·.· "JPfi..~' ... -~' ~··. ·~: ... ,:·,. ,.,·<. · · :·~ .. state "' . ' . . . ,·- . _.:· .. -·_· .. ·. · ... · .. . . . ; . Rejjbj"titig Bureau _- .. · .... ( . TRANSCRIPT OF"PROCEEDINGS (Copyright in this t~anscript is vested in the Crown. Copi~s thereof must ~ot be made or sold without the written authority of t~e Director, State Reporting Bureau.) · · . -~. . SUPREME COURT- OF QUEEN_SLAND · .. · ·. · · .. ,.· CIVIL JURISDICTION ·.WHITE J - -:'. No 1 69 of '1993 -~··:· ( . . .. :, . : ~ ; . · ALLEN STEWART BULGER_ and ·: ~ • . r . ~-·· . . ' .. · QUEENSLAND COMMUNITY.CORRECTIONS·BOARD BRISBANE . : ·~· - ~ ; . -~-- ... • . DATE 25/0~/9.3 JUDGMENT·.· 1 ... ·• c ~ ·· .. REVISED COPiES ISSUED . s;atc Report!;:g Bureau Date· 3 ·.·Respondent 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 21 -- I ~ 250693 jjh/sbd (White J) HER HONOUR: I conclude that the Board's decision was an improper exercise of the power conferred by s 166(4) of the Corrective Services Act and that its exercise was so unreasonable that no reasonable board would have so exercised the power. Accordingly, I order that the decision of the Board made on 17 December 1992 be set aside, and further order that the application by Allen Stewart Bulger of October 1992 be referred back to the Board for its further consideration in the light of these reasons. I publish my reasons. HER HONOUR: Pursuant to s 49 of ~he Judicial Review Act 1991, I further order that the respondent pay the applicant's costs of and incidental to the application to be taxed including costs reserved on 29 March 1993 and 7 April 1993. JUDGMENT 2 10 20 n 0 30 0 40 0 50 60 -~~~~~--~~~~~~- -- 2 of 21 -- ( ) ( IN THE SUPREME COURT OF QUEENSLAND No. 169 of 1993 Brisbane Before Justice White [Re: Bulger] BETWEEN: ALLEN STEWART BULGER Applicant - and - QUEENSLAND COMMUNITY CORRECTIONS BOARD Respondent REASONS FOR JUDGMENT - WHITE J. Judgment delivered 25/06/1993. CATCHWORDS: Counsel: Solicitors: Judicial Review Act 1992 - valuable information given after sentence to authorities - refusal of respondent Board to order early release on parole as not being "special circumstances" within s.166(4) of the Corrective Services Act Wednesday Corp. "unreasonableness". A.J.H. Morris Q.C. with him D. Rangiah for the applicant J. Douglas Q.C. with him G. Koppenol for the respondent Mary Burgess for applicant Crown Solicitor for respondent Hearing Date.: 4th June, 1993 \ -- 3 of 21 -- IN THE SUPREME COURT OF QUEENSLAND No. 169 of 1993 BETWEEN: ALLEN STEWART BULGER Applicant - and - QUEENSLAND COMMUNITY CORRECTIONS BOARD Respondent C) REASONS FOR JUDGMENT- WHITE J. Delivered the 25th day of June, 1993 The applicant seeks review pursuant to the Judicial Review Act 1992 of a decision of the respondent, the Queensland ;" \ \__; Community Corrections Board ( 11 the Board 11 ) that he not be released on parole earlier than his eligibility date. lJ On 8th February, 1990 the applicant ( 11 Bulger 11 ) was convicted on his own plea of guilty in the Brisbane District Court of 12 counts of official corruption and one count of perjury. He was sentenced by his Honour Judge Healy to 12 years' imprisonment in respect of the official corruption charges and three years' imprisonment for perjury, the sentences to be served concurrently, and his Honour made a recommendation that he be considered as eligible for parole after serving five years' imprisonment. -- 4 of 21 -- 2 Bulger appealed to the Court of Criminal Appeal against the sever~ty of his sentence and the Attorney-General cross-appealed on the ground of its inadequacy. Both appeals were dismissed. Bulger was a former Detective Inspector of Police in charge of the Licensing Branch. After the dismissal of his appeal Bulger agreed to co-operate with the-Special Prosecutor's Office set up to investigate the bringing of charges arising out of evidence given to the Commission of Inquiry into Police Corruption (the Fi tzgerald Inquiry). Mr. Drummond Q. C. (as his Honour then was), 0 the Special Prosecutor, wrote that Bulger proceeded to be "a valuable informant and witness for the prosecution in a number of cases relating to the corrupt system which operated in the Queensland Police Force in the period 1978 to 1987". pn 7th June.,. 1991 Bul.ger gave evidence for the prosecution in the trial of Terence Lewis, the former Commissioner of Police. After he had given his evidence the learned presiding Judge, who 0 was Judge Healy, asked the jury to retire and made the following Q remarks at t/s p.3474:- "He has given evidence in this trial, and, further, having heard the evidence to date regarding the corruption in the Licensing Branch, I am now in a better position to assess his part and the extent of his culpability in comparison with the involvement of other Licensing Branch officers who have admitted corruption. I am now functus officio as far as his sentence is concerned, but, Mr. Mulholland, I would like you to convey to the Parole Board that, in my opinion, Mr. Bulger should be considered for parole after he has served two years of · the sentence I imposed upon him." Prior to the Lewis trial Bulger had already lodged an application with the Board for early release on community based detention dated 18th October, 1990. He sought to have his 0 -- 5 of 21 -- 3 application considered under s.166(4) of the Corrective Services Act 1988, on the ground that special circumstances existed. Those circumstances were particularly that he had co-operated with the Special Prosecutor's Office and proposed further to eo- operate and that that would subject him to ·hostile cross- examination, stress, and unwanted publicity for himself and family. The Board declined to release Bulger on community-based detention prior to his eligible date and communicated this to Bulger by letter dated 22nd January, 1991. On 12th June, 1991 Bulger lodged a further application to the Board asking for community based detention and relied upon Judge Healy's comments on 7th June, 1991 in the Lewis trial. On 13th August, 1991 the Board wrote refusing the application on the ground that the application was too early, the eligible date for release on parole being 8th February, 1995 (the (_) date pursuant to the original sentencing recommendation of Judge Healy). u On 15th February, 1992 Bulger applied for release on parole. The special circumstances relied upon were his continued co-operation with the Special Prosecutor's Office and Judge Healy's remarks in the Lewis trial. In effect, Bulger complained to the Board that he had and continued to assist the Special Prosecutor's Office as an informer and had obtained no benefit. He indicated that as a consequence he contemplated declining to give any further evidence to or on behalf of the Special Prosecutor's Office. That application, as were earlier -- 6 of 21 -- applications, was strongly supported by letters from the Special Prosecutor. On 29th April; 1992 the Board communicated its refusal of the application on the ground that there were no special circumstances to warrant early release prior to eligibility date. Bulger again sought parole in early October.1992. He again relied upon material from the Special Prosecutor's Office as to his co-operation .and indicated that he had finished giving evidence in the Special Prosecutor's trials. The Board on 21st December, 1992 wrote again refusing the application for early 0 release on parole and it is that decision which is the subject c=) of this application. On 7th January, 1993 reasons were requested of the Board on behalf of the applicant pursuant to s. 32 (1) of the Judicial Review Act 1991 in respect of its decision of 17th December, 1992 which reasons were received on or about 5th February, 1993. Those reasons extend to some five and half closely typed pages. Much of the .document sets out the history of the various applications to which I have referred together with an analysis of the applicable legislation. It is appropriate to consider that legislation before turning to the reasons. The Corrective Services Act 1988, subject to amendments made by the Penalties and Sentences Act 1992 not presently relevant, sets out the legislative scheme for the release of prisoners on parole. Generally, a prisoner is not eligible for release on parole until at least one half of the term of imprisonment to which he was sentenced has been served (s.166(1)). The statutory scheme provides for two relevant c=) 0 -- 7 of 21 -- n () (_) 5 exceptions, namely, that a sentencing court may recommend release on parole earlier or later than the service of one half of the sentence (166(3)) and that the Board "may where it is satisfied that there are special circumstances relating to a prisoner, release that prisoner on parole at any time" (s.166(4)). In its reasons the Board stated that it had not in the past nor it did it propose for the future to fetter the exercise of its discretion by cataloguing the many and vario~s circumstances which might be characterised as "special" so as to attract the operation of s.166(4). I set out the significant part of the reasons:- "In this case the Board has given full weight to the submissions made by the applicant and repeatedly made by the Special Prosecutor. The Board has given full weight to the fact that the applicant has assisted the Special Prosecutor in the prosecution of others engaged in official corruption and related offences. The Board has also given full weight to remarks made by His Honour Judge Healy in the course of the Lewis trial. On the other hand the Board remains fully conscious of its statutory obligation to release a prisoner pursuant to Section 166(4) only when it considers that the circumstances of the case are so special as to warrant deviation from the statutory scheme· which has been designed for the release of offenders. It is well known to be the fact that in those cases where the sentencing Judge has made a recommendation pursuant to Section 166(3) the Order relating to the release of the prisoner may or may not reflect the recommendation. It is clear tnat the sentencing Court does not intend to bind the Board in making such a recommendation. At the same time the Board is impliedly bound to give full weight to the fact that the sentencing Court has made the recommendation. The statutory discretion to order release or not remains to be properly exercised by the Board by reference to relevant considerations including the fact of the sentencing Judge's recommendation. In this case the Board recognises the assistance given to the Special Prosecutor by the applicant; at the -- 8 of 21 -- --- ---------- 6 same time the Board recognised the worth of the Special Prosecutor's submission that persons should be encouraged to assist the prosecution bf serious crime. It has closely noted the remarks of his Honour Judge Healy who had originally sentenced the applicant and who had recommended that he be eligible for parole after having served'a period of 5 years. In deciding whether the circumstances of the case are 'special' the Board has also taken into account the fact that the applicant later acknowledged his guilt after having earlier denied to the Commission of Inquiry his complicity in official corruption. The case of the applicant does not stand alone. The Board has on other occasions had to consider similar applications, not infrequently supported by police officers, based on the notion that the applicant had whilst in prison, assisted police officers and the prosecution of others by the provision of confessional or other evidence. The Board does not perceive its statutory duty to either encourage or discourage that process. In such cases the concern is often for the security of the person providing the evidentiary material. At the same time the Board recognises the capacity of the corrections system to ensure the protection of such persons. In this case fear for the safety of the applicant is not urged as a relevant consideration. That is not to say that if it was it would be a decisive consideration. It is merely another relevant consideration. The core of this application is that the applicant, after being sentenced, has assisted the Special Prosecutor in the prosecution of others and that others should be encouraged to act likewise. The Board has carefully considered this question. Whilst these matters have to be given due consideration in an application of this kind so too must due weight be given to the statutory scheme relating to the release of prisoners on parole. After a consideration of all of the circumstances relating to this applicant the Board considered that the circumstances were not 'special' and therefore refused to exercise its discretion in favour of the applicant." The order of Mackenzie J. of 23rd March, 1993 directed the parties to exchange outlines of submissions and it is to those that the hearing was directed rather than the grounds set out in 0 0 0 0 -- 9 of 21 -- 7 the applicant's summons. These were further refined and varied in oral submissions on behalf of the applicant. Mr. Morris Q.C. who appeared. for the applicant, submitted that, in effect, the Board failed to accord Judge Healy's remarks made on 7th June, 1991 in the Lewis trial, the status of a sentencing recommendation pursuant to s.166(3) of the Corrective Services Act to which they were entitled. Mr. Morris submitted that a recommendation of eligibility for release on parole is not a part of the sentence but is to be characterised as the exercise of an executive function by the Judge. Accordingly, it may be (-~ varied by the sentencing Judge at any time and from time to time . ) after the sentence. In my view that submission is not sustainable. A recommendation as to eligibility fo~ release.?n parole is part of the sentencing process, notwithstanding that it is only that, a recommendation, seeR. v. Hantzisavvas [1981] Qd.R. 47; R. v. (I \._j Tilley (1991) 53 A.Crim.R. 1, R. v. Griinke [1992] 1 Qd.R. 196 ( \ 0 and R. v. Tramacchi C.A. Nos. 68 and 89 of 1993, unreported decision of the Court of Appeal of 31st May, 1993. When the sentencing court has passed sentence including any recommendation with respect to parole it is functus officio after the conclusion of the criminal si ttings and any subsequent judicial consideration of that recommendation is made by way of appeal. There was no obligation upon the Board to regard Judge Healy's remarks on 7th June, 1991 in the Lewis trial as ·part of the sentencing process and thus falling within s.166(3). The Board states that it did in fact take those remarks into consideration and it was for the Board to determine what weight -- 10 of 21 -- 1---- 8 it gave to them, see Re Solomon unreported decision of Ambrose J. of 7th August, 1992 (No. 603 of 1992). · The second ground relied upon was that the Board made an error of law, or failed to take into account a relevant consideration or took into account an irrelevant consideration when it stated:- "The Board does not perceive its statutory duty to either encourage or discourage that process ... " there referring to the provision of assistance to the authorities 0 by a prisoner in the prosecution of others whilst in prison. Mr. Morris submitted that the Board by virtue of the subject matter, scope and purpose of the Act had a duty to encourage 0 prisoners to provide information and assistance to the authorities . ... 'In Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 C.L.R. 24, Mason J. held at p.39 that the ground of failure to take into account a relevant consideration as a basis 0 for judicial review of an administrative decision can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making Q that decision. That is determined by construction of the statute conferring the discretion. Where not expressly stated those factors must be determined by necessary implication from the subject matter, scope and purpose of the Act. If the statute confers a discretion which in its terms is unconfined, the factors that may be taken into account are said to be similarly unconfined, except in so far as the subject matter, scope and purpose of the Act might imply some limitation on the factors to -- 11 of 21 -- 9 which the decision maker may legitimately have regard, see p.40. His Honour went on to hold:- "By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision maker is bound to take a particular matter into account unless an ·implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act." One looks in vain in the Act to discover a duty to encourage c-J informers explicitly stated or, found by necessary implication. Part III - Division I of the Corrective Services Act preserves the Parole Board constituted under the Offenders and Probation and Parole Act 1980 but to be known as the "Queensland Community Corrections Board". By s.139(1) the Minister may issue guidelines to the Board with respect to the policy to be adhered to by the Board in exercising its powers and discharging its functions. This provision did not appear in the 1980 Act, but (_) there is otherwise little change in the powers and duties of the Board. The powers of the Board set out in the Corrective Services Act are to receive applications for parole from lJ prisoners and by order in writing direct that the prisoner be released on parole on a specified date. The Board has power to vary, amend or cancel any parole order before the prisoner is released on parole. It is precluded from making a parole order in certain circumstances not here relevant. Nothing appears in the Ministerial Guidelines to the . Board concerning informant prisoners. A prisoner's eligibility for parole is set out in s.166 of the Corrective Services Act and is expressed in temporal terms, -- 12 of 21 -- 10 that is, as to when an order may be made save for s.166(4) which empowers the Board to release a prisoner on parole at any time where there are special circu~stances. I do not find that there is any duty imposed upon the Board by the Correction Services Act to encourage informers either explicitly or implicitly. Mr. Morris went on to contend, however, that the issue of failure to take into account a ~elevant consideration does not fall for consideration here because the Board did not decide if co-operation with the authorities of the kind given by Bulger 0 constituted a special circumstance upon which it could exercise its discretion. In other.words, as I understood the submission, the Board must first decide if there were matters which were special circumstances as a threshold question and having done so should go on to ,. decide, in the exercise of its discretion, whether in the light of thos~ special circumstances to release Bulger on parole. According to the submission, failure to characterise the process in this way vitiated the decision. The section plainly says that if the Board is satisfied that there are special circumstances relating to a prisoner it may release that prisoner on parole. The Board has stated that co-operation with the authorities in the investigation of crime by a prisoner has in the past been regarded by it as a special circumstance. I do not understand it to be taking any different attitude in Bulger's case. Implicit in its reasons, if not explicit, is that it has identified the co-operation of l3ulger as capable of constituting special circumstances. To suggest that the Board . must first characterise the ground as spec~al be.fore proceeding to exercise its discretion whether to release on parole unduly 0 0 0 -- 13 of 21 -- (") 11 formalises the process. Whether circumstances are sufficiently special to warrant the release on parole is not a different process from identifying the subject matter as attracting the description "special" and then deciding whether to release on parole. The ultimate decision of the Board will necessarily be dictated by its evaluation of the circumstances to be considered on behalf of the applicant. There was no identifiable error by the Board in exercising the discretion conferred by s.166(4) in focusing on the q\lality of the special circumstances. Another ground of complaint was that the Board failed to () take into account the safety of Bulger in prison and that this was a relevant consideration. Bulger did not himself express fear for his safety in prison as a consequence of being identified as an informer. The Special Prosecutor ra.ised .the matter at p.7 of the letter to the Chairman of the Board.dated 30th July, 1990 (p.0049 of ex.1). The Special Prosecutor l) referred to rumours of which he had been informed independently from Bulger that spoke of physical punishment to Bulger. It was U clearly a current · concern but at the time of the subject application in October 1992 when those rumours were stale by two years, Bulger was not urging his safety as a relevant consideration. The Board was aware of it and clearly considered it in its deliberations, see p. 6 of the reasons. The Board accorded the question of Bulger's safety in prison the consideration which the facts demanded and no error is discernible. Finally, it was submitted on behalf of Bulger that the Board's decision that there were no special circumstances was.~o -- 14 of 21 -- 12 unreasohable that no reasonable board could have made the same decision. It was submitted that too much wei~ht was given to the statutory scheme relating to the release of prisoners, namely that after serving at least one half of the term of imprisonment to which the prisoner was sentenced in the normal course of things a prisoner may be eligible for release. It is clear that the Board was also referring to s~166(3), when it referred to the statutory scheme that is, the original recommendation of the sentencing Judge, because it identified Bulger's eligible date 0 for parole as 8th Februaryj 1985 which was five years from the date of sentence, the sentencing Court's recommendation. If this ~ is read in conjunction with the Ministerial Guidelines to which I have referred in which Correctional Boards are instructed that "only in exceptional correctional boards recommended release Magistrate", circumstances should community fail to comply with the date set by a Judge or it might be thought that the Board did not approach s. 166 ( 4) correctly. It may be arguable that ''exceptional circumstances" will be rarer than "special circumstances", although in Griffi ths v. The Queen (1989) 167 C.L.R. 372 the expressions appear to be used interchangeably in respect of exceptions to the general legislative (N.S~W.) scheme relating to parole in a differently worded provision. In the explanation for this guideline the possibility of a Correctional Board wishing to release a prisoner on parole earlier than the recommendation of the sentencing court is not adverted to. That having been . said, if there is a difference ·in meaning in the two expressions, it seems to me ~ ~ ---··--·---- -- 15 of 21 -- 0 0 (J 13 plain when reading the whole of the reasons, that the Board did not regard itself as fettered by that guideline so as to take a wrong approach to s.166(4). If I might repeat what has been set out above from the reasons:- 11 It is well known to be the fact that in those cases where the sentencing Judge has made a recommendation pursuant to Section 166(3) the Order [of the Board] relating to the release of the prisoner may or may not reflect the recommendation. It is clear that the sentencing Cpurt does not intend to bind the Board in making such a recommendation~ At the same time the Board is impliedly b6und to give full wei~ht to the _ fact -that the sentencing Court has made the recommendation. The statutory discretion to order release or not remains to be properly exercised by the Board by reference to relevant considerationsincluding the fact of· the sentencing Judge's recommendation ... In any event the Board correctly identified and described the statutory scheme in the fifth paragraph of p. 4 ·of its reasons. 11 The statutory scheme for the release of offenders from custody is defined in the Corrective Services Act. In the case of a prisoner sentenced to a term of imprisonment he/ she is not eligible for release on parole before he/she has served at least one half of the term. To this general rule there are two main addenda. Firstly, the sentencing court may recommend that the offender be eligible for release on parole after such period of imprisonment as is specified in the recommendation (Section 166(3)) and secondly, the Board may release the prisoner on parole at any time where it is satisfied that there are special circumstances (Section 166(4)). 11 The Special Prosecutor set out extracts from decisions of appellate courts in which the propriety, indeed the desirability, of sentencing courts reducing what would in other circumstances be the appropriate sentence because of co-operation with the authorities in giving information about others who might be prosecuted. Those authorities point out that when circumstances -- 16 of 21 -- 14 relating to co-operation with the authorities arise for the first time after the sentencing process has occurred the review of that sentence is properly within the province of the executive government and not an appellate tribunal, see R. v. Cartwright (1989) 17 N.S.W.L.R. 243. There can be no doubt that the matter of being an informer is a relevant consideration for a Community Corrections Board to take into account in reaching its decision ·as to release on 0 parole and the present Board did so in this case. As Mason J. observed in Peko-Wallsend at pp. 40-41 the limited role of a court ·reviewing the exercise of an () administrative discretion must constantly be borne in mind. The decision under review can be impugned if it is shown that it was so unreisonable tha~no reasonable person could have come to it, Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at pp.230, 233 and is so expressed legislatively in s.23(g) of the Judicial Review Act 1992. His () Honour noted at pp.41-2 that there has been some diversity in the readiness with which courts have found the test to be satisfied, Q however, his Honour observed:- "But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it·will be slow to db so because a mere preference for a different result will not suffice: Lovell v. Lovell (1950) 81 C.L.R. 513 at p.519; Gronow v. Gronow (1979) 144 C.L.R. 513 at pp.519-520, 534, 537-538; ·Mallet v~ Mallet (1984) 156 C.L.R. 605 at pp. 614-615, 622. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to -- 17 of 21 -- (_) 15 relevant factors, lest it exceed its supervisory role by reviewing the· decision on its merits." In R. v. Cartwright, supra, a decision of the New South Wales .Court of Criminal Appeal, the court reviewed extensively the authorities in relation to the approach a sentencing couit should take when sentencing informers. Hunt and Badgery-Parker ·' JJ. noted at p.252:- "There are, however, certain broad general principles which may be discerned from all these cases and which . · may be stated as being applicable t6 the discount to be given for. assistance provided to the authorities.· It is, we feel, unnecessary to identify the source from which each is taken. Many of them overlap. None is necessarily more important than the others. The weight to be given to · each will depend upon thecircumstances of the particular case. It is clearly in the public interest that offendersshould be encouraged to supply information . to the authorities which will assist them to bring otheroffenders to justice, and to. give evidence againstthose other offenders in relation to whom they have given such information. In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender,. whatever })e his motive." Deane and McHugh JJ. in Malvaso v. The Queen (1989) 64 A.L.J.R. 44 at p.SO concluded similarly:- "It would be to close one's eyes to reality to fail torecognise that in areas of organised. crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence aresuch that it is imperative, in the public interest,that there be a general perception that the courts will extend a degree . of leniency, . which· would otherwise be quite unjustified, to those who assist inthe exposure and prosecution of corrupt officials and hidden organisers and financiers by the provision of significant and reliable evidence." -- 18 of 21 -- 16 The value of the information given by Bulge·r is set out in the various letters to the Board from the Special Prosecutor. It is most co~p~etely set out in the letter of 30th July, 19SO to which I .have referred and the matters referred to in the future in that letter in fact occurred, namely Bulger did indeed give evidence in a number of trials and committal proceedings~ The Special Prosecutor wrote - "However, Bulger has, since the dismissal of his appeal, co-operated with this Office and rendered great assistance by that co-operation. He has supplied a large amount of information and, as a result, has made possible the prosecution of a number of middle ranking police who would not otherwise have been charged. He is prepared to give evidence against these persons ... The nature of his assistance and the significance Bulger, as a former senior detective involved in corrupt activities within the Police Force, deciding to provide this assistance to the prosecution, are such, I suggest, as to constitute special circumstances ... I say this despite the lateness of his co-operation ... A series of extensive interviews were then carried out with him in the period 16th May, 1990 to 12th July, 1990. He co-operated to such an extent that what has been obtained from him is, in my view, a very full account of that part of the system of corruption organised by Jack Reginald Herbert that operated within the Licensing Branch. Bulger has provided, and will give in court, direct evidence of corruption on the part of eight serving and former police. ·All of these were in receipt of corrupt payments from Bulger. Additionally, he gives direct evidence against three other persons already charged with offences relating to this corrupt system. Bulger also provides admissible evidence against numerous S.P. bookmakers and other police (though the evidence against these other police is not direct evidence of corrupt payments received by them). It is my view that the account given by Bulger has a high degree of credibility. He has not attempted to falsely implicate any person. He has not attempted to minimise his own role in the corrupt system nor has he 0 0 0 (J -- 19 of 21 -- () ( ) -....__/ 17 attempted to minimise the role of any other person. He has not given any indication of malice toward any individual. He has, however, in the course of his discussions with this Office, refused to discuss two persons, both associated with S.P. bookmaking. He refused to discuss the involvement of these people on the basis of friendship or blood tie. I am also in doubt as to whether he has played down to some extent the total amount of the graft moneys he actually received. These are matters which leave his credibility open to some attack but they do not cause me to doubt his veracity on other matters; they do not, in my view, detract to any great degree, from the value of his information or his usefulness as a witness. The upshot is that Bulger is, in my assessment and notwithstanding his conviction for both perjury and corruption, a very valuable informant and witness for the prosecution in a number of cases relating to the corrupt system which operated within the Queensland Police Force in the period 1978 to 1987 ... In this case, Bulger has provided valuable information in relation to a highly organised corrupt network. The difficulty of obtaining evidence on which the participants in such a criminal enterprise can be prosecuted.is clear when one considers that corruption of the kind in which he was involved is a crime conducted within a tightly closed shop. It is not an offence readily detectable by outside scrutiny. Bulger's evidence exposes a number of middle ranking police who were corrupt. It must also be said that Bulger, by giving this information and giving evidence, takes upon himself an increased risk of danger during his imprisonment. He is already in prison and known to be an ex-policeman. He now takes upon himself the further danger of being labelled an informer. This must put his personal safety at a great deal of risk." I am mindful of the need not to exceed the supervisory role and judge the matter on its merits, Peko-:Wallsend p.41, but it seems that had the Board given proper weight to the extent and value of Bulger' s co-operation with the Special Prosecutor's Office, bearing in mind the public interest in encouraging such co-operation with th~ authorities, particularly in the area of -- 20 of 21 -- 18 official corruption, it would have concluded that special circumstances existed such as to cause it to order Bulger to be released on parole earlier than was recommended by the sentencing court. Accordingly, I conclude that the Board's decision was an improper exercise of the power conferred by s. 166 ( 4) of the Corrective Services Act and that its exercise was so unreasonable that no reasonable board would have so exercised the power. I order that the decision of the Board made 17th December, 1992 be set aside and further order that the application by Allen Stewart Bulger of October 1992 be referred back to the Board for ~) its further consideration in the light of these reasons. -- 21 of 21 --