Armitage v Parole Board Queensland [2023] QCA 239 (2023) 17 QR 297

SUPREME COURT OF QUEENSLAND CITATION: Armitage v Parole Board Queensland [2023] QCA 239 PARTIES: MATTHEW LESLIE ARMITAGE (appellant) v PAROLE BOARD QUEENSLAND (respondent) FILE NO/S: Appeal No 13034 of 2023 SC No 2380 of 2023 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 209 (Hindman J) DELIVERED ON: Date of Orders: 23 November 2023 Date of Publication of Reasons: 28 November 2023 DELIVERED AT: Brisbane HEARING DATE: 23 November 2023 JUDGES: Mullins P and Flanagan and Boddice JJA ORDERS: Date of Orders: 23 November 2023 1. The appeal be allowed. 2. The orders made by Hindman J on 22 September and 25 October 2023 be set aside and substituted with: a. an order that the decision of the respondent made on 13 February 2023 be set aside; b. a direction that the respondent reconsider the decision according to law; and c. the respondent pay the applicant’s costs of the application. 3. The respondent pay the appellant’s costs of the appeal. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the appellant was convicted of manslaughter and sentenced to nine years six months imprisonment – where some 80 to 85 per cent of the skeletal remains of the deceased have been located – where it is highly likely that the skeletal remains which are unaccounted for may never be located or no longer exist – where the appellant applied to the respondent for a parole order – where the respondent made a no cooperation declaration in respect of the appellant pursuant to s 175L of the Corrective -- 1 of 13 -- 2 Services Act 2006 (Qld) (“CSA”) – where the respondent could only make a no cooperation declaration if it was first satisfied that the appellant was a no body-no parole prisoner pursuant to s 175C of the CSA – where the primary judge’s construction of s 175C results in a prisoner falling within the definition of a no body-no parole prisoner in circumstances where all of the “remains” of the deceased which still exist or are capable of being located, have been located – whether on the proper construction of s 175C, the word “remains” refers to those remains that continue to exist and are capable of being located – whether the learned primary judge erred in construing s 175C Acts Interpretation Act 1954 (Qld), s 14A, s 14B Corrective Services Act 2006 (Qld), s 3, s 175B, s 175C, s 175K, s 175L, s 175O, s 176B, s 180(2)(d), s 193A(2) Corrective Services (No Body, No Parole) Amendment Bill 2017 (Qld) Police Powers and Responsibilities and Other Legislation Amendment Bill 2021 (Qld) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited Armitage v Parole Board Queensland [2023] QSC 209, related Arnold v Britton [2015] AC 1619; [2015] UKSC 36, cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, cited Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited R v A2 (2019) 269 CLR 507; [2019] HCA 35, applied R v Armitage; R v Armitage; R v Dean (2021) 9 QR 1; [2021] QCA 185, cited Renwick v Parole Board Queensland (2019) 2 QR 645; [2019] QCA 269, cited SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55, cited COUNSEL: S C Holt KC for the appellant D D Keane KC and S Robb KC for the respondent SOLICITORS: Jahnke Lawyers for the appellant Parole Board Queensland Legal Services for the respondent [1] MULLINS P: I joined in making the orders at the conclusion of the hearing of this appeal for the reasons given by Flanagan JA. [2] FLANAGAN JA: On 23 November 2023 this Court made the following orders: 1. The appeal be allowed. -- 2 of 13 -- 3 2. The orders made by Hindman J on 22 September and 25 October 2023 be set aside and substituted with: a. an order that the decision of the respondent made on 13 February 2023 be set aside; b. a direction that the respondent reconsider the decision according to law; and c. the respondent pay the applicant’s costs of the application. 3. The respondent pay the appellant’s costs of the appeal. [3] These are my reasons for joining in those orders. [4] The issue raised by this appeal is whether the learned primary judge erred in construing s 175C of the Corrective Services Act 2006 (Qld) (“CSA”). [5] Section 175C provides as follows: “175C Meaning of no body-no parole prisoner A prisoner is a no body-no parole prisoner if— (a) the prisoner is serving a period of imprisonment for a homicide offence; and (b) either— (i) the body or remains of the victim of the offence have not been located; or (ii) because of an act or omission of the prisoner or another person, part of the body or remains of the victim has not been located.” Background [6] On 31 August 2021 this Court resentenced the appellant to nine years six months imprisonment commencing from 21 February 2018 for offences of manslaughter and interference with a corpse. It was declared that the conviction for manslaughter was a conviction of a serious violent offence under s 161B(3) of the Penalties and Sentences Act 1992 (Qld). Pursuant to s 159A of the Penalties and Sentences Act, it was declared that 1237 days spent in pre-sentence custody between 4 October 2014 and 21 February 2018 was time taken to be imprisonment already served under the sentence.1 [7] The sentence is due to expire on 31 March 2024. [8] On 12 November 2021 the appellant applied to Parole Board Queensland (“the Board”) for a parole order. This application was made by the appellant ahead of his becoming eligible for parole on 9 May 2022. [9] On 26 August 2022 the Board conducted an oral hearing in relation to the appellant’s application for a parole order, in particular, to consider whether to make a no 1 R v Armitage; R v Armitage; R v Dean (2021) 9 QR 1. -- 3 of 13 -- 4 cooperation declaration pursuant to s 175L of the CSA. Such a declaration may be made in relation to a no body-no parole prisoner as defined by s 175C. [10] On 3 February 2023 the Board made a no cooperation declaration in respect of the appellant. The effect of this declaration is that unless the Board decides to “end” it, the appellant is precluded from applying for, and being granted, parole.2 [11] The circumstances in which the Board made the no cooperation declaration are as follows: (a) Shaun Matthew Barker (“the deceased”) was last seen alive on 13 December 2013. (b) on 10 April 2014 some human bones were located by forestry workers in the Toolara State Forest. (c) a forensic anthropologist, Sergeant Donna Marie McGregor, gave evidence at the oral hearing that some 80 to 85 per cent of the skeletal remains of the deceased had been located. Missing was part of a shin bone (tibia), together with both hands and feet. (d) Sergeant McGregor accepted that of the 15 per cent of the deceased’s remains that had not been accounted for, it was entirely likely that it could be “explained away by the effects of heat, that is the bones were burnt away, or animal predation”. She accepted that it was possible that those parts of the deceased that had been predated upon by animals had been consumed. Another possibility was that the deceased’s remains had been dragged away by animals to places where they will never be found. (e) a forensic report before the Board noted that a fire had ravaged the area of the State forest where the deceased’s remains had been found. The report concluded that it was not believed that any further searching would produce any more remains of the deceased. (f) the Board made a positive finding that parts of the deceased’s body/remains have not been located because of “the act of dealing with the victim’s body and/or the omission to properly bury it and so protect it from the elements and animals”.3 [12] The making of the no cooperation declaration was premised on the appellant being a no body-no parole prisoner. The Board construed s 175C as follows:4 “[12] It may be seen that the terms used are broad and clear. They focus upon a body or remains, or of part thereof which have not been located (emphasis added). There is no reference to or relevance of their ‘existence’ nor is it clear to the Board what is meant by the applicant’s use of the term ‘not identified’ which does not feature in the Act. [13] In the present matter the parts which have not been located include both hands and both feet of the deceased. 2 Corrective Services Act 2006 (Qld), ss 176B, 180(2)(d) and 193A(2); Appellant’s Outline of Argument, paragraph 4. 3 Armitage v Parole Board Queensland [2023] QSC 209, footnote 2 (“Reasons”); Appellant’s Outline of Argument, paragraph 3. 4 AB Vol 2, 4. -- 4 of 13 -- 5 [14] Accordingly, the jurisdiction of the Board in these matters is enlivened under s 175C upon the failure to locate either the body or parts thereof (in the defined circumstances). The focus then shifts to the cooperation, given by the person who killed the victim, in locating the remains. [15] In other words, as the facts in earlier decisions of the Board demonstrate, the jurisdiction arises in cases where the entire body may not still exist.” [13] On 27 February 2023 the appellant filed an application for a statutory order of review on the basis that the Board erred in law in making the no cooperation declaration. [14] The application alleged that: (a) the Board could only make a no cooperation declaration pursuant to s 175L if it was satisfied of a jurisdictional fact, namely that the appellant was a no body- no parole prisoner; and (b) the Board had misconstrued s 175C as applying when a part, or parts, of the deceased’s body has or have not been identified because they no longer exist. [15] On 22 September 2023 the primary judge dismissed the appellant’s application on the basis that there was no error of law in the Board’s construction of s 175C. The primary judge’s construction of s 175C [16] Her Honour’s analysis of s 175C commenced with a recognition that the parties agreed that s 175C(a) was satisfied in that the appellant is a prisoner serving a period of imprisonment for a homicide offence. Section 175B relevantly defines “homicide offence” to mean an offence of manslaughter pursuant to s 303 of the Criminal Code. [17] As to the proper construction of s 175C(b), her Honour considered the legislative scheme, including the purposes of the CSA set out in s 3 and Chapter 5 of the CSA which concerns parole. Her Honour described the “no body, no parole” scheme as follows: “[22] The ‘no body, no parole’ scheme on its face incentives no body- no parole prisoners to provide what information they can that might assist in the possible locating and recovery of the whole of the victim’s body or remains. Actual recovery is not essential. In that respect the information sought is to identify – (a) the location of every part of the body or remains of the victim (it seems implicit this is a location able to be identified by the prisoner, to whatever degree of specificity, and assumes the parts/remains were not further moved); (b) the last known location of every part of the body or remains of the victim (it seems implicit this is a location able to be identified by the prisoner, to whatever degree of specificity, but assumes the parts/remains were later moved to some other location); -- 5 of 13 -- 6 (c) the place where every part of the body or remains of the victim may be found (again it seems implicit this is a place able to be identified by the prisoner, to whatever degree of specificity, but unlike (a) and (b) above, the place is based on some degree of speculation, inference or hearsay rather than the direct knowledge of the prisoner).” [18] Her Honour referred to relevant extrinsic material, including the Explanatory Notes to the Corrective Services (No Body, No Parole) Amendment Bill 2017. This Bill inserted s 193A of the CSA, which relevantly provided at the time: “193A Deciding particular applications where victim’s body or remains have not been located (1) This section applies to a prisoner’s application for a parole order if the prisoner is serving a period of imprisonment for a homicide offence and— (a) the body or remains of the victim of the offence have not been located; or (b) because of an act or omission of the prisoner or another person, part of the body or remains of the victim has not been located. (2) The parole board must refuse to grant the application under section 193 unless the board is satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the victim’s location.” [19] Her Honour also referred to the decision of this Court in Renwick v Parole Board Queensland,5 where Holmes CJ, with whom the other members of the Court agreed, held that the statutory context of the provisions indicate that the intent of the provisions was to “locate victims’ remains”.6 [20] Her Honour considered the Police Powers and Responsibilities and Other Legislation Amendment Bill 2021 which further amended the CSA. Her Honour observed (footnotes omitted): “[26] … Rather than assessing the cooperation of a no body-no parole prisoner at the time of their application for parole, the amendment empowered the Board to issue a no cooperation declaration so as to prevent no body-no parole prisoner from applying for parole. The Explanatory Notes to the 2021 Bill clarified the purpose of the amendments: The Bill strengthens the original intent of the NBNP policy by incentivising prisoners to provide earlier cooperation in locating the remains of a homicide victim. The Bill introduces a new discretion for the Board to consider a prisoner’s cooperation in locating a homicide victim’s 5 (2019) 2 QR 645. 6 Renwick v Parole Board Queensland (2019) 2 QR 645, [24]. -- 6 of 13 -- 7 remains at any time after sentencing, instead of requiring the Board to wait until the prisoner applies for parole. [27] The amendments were designed to address the concern that in many cases, by the time a no body-no parole prisoner became eligible for parole and applied for it, the chances of recovering the body or remains of the victim were likely to have been impacted by the passage of time and intervening events.” [21] Her Honour construed s 175C(b) as follows: “[47] I do not consider that the words “have/has not been located” in s. 175C mean that the relevant body, part of body, remains or part of remains of the victim must continue to exist. That is to put an unnecessary gloss on the words that there appear. The two limbs of subsection (b) are directed to making an enquiry at a point in time as to whether particular things have then been located ((i) – some of the body/remains; (ii) – all of the body/remains). It is not directed to whether those particular things then exist or are recoverable from the environment.” [22] In arriving at this construction of s 175C(b), her Honour had earlier reasoned as follows: (a) as some 85 per cent of the skeletal remains of the deceased had been located, “it cannot be concluded for the purposes of s. 175C(b)(i) that the body or remains of [the] victim of the offence have not been located”;7 and (b) s 175C(b)(ii) is intended to apply “where what has been located of the victim is not the whole of the body or remains of the victim”.8 [23] Her Honour then considered the difference in meaning of the words “body” and “remains”: “[34] The body of the victim is the physical body of the victim as the victim would have presented in life, comprising of natural parts such as the bones, the organs, the flesh and the skin. The body of the victim may also include non-natural parts such as teeth fillings, implants and artificial limbs. [35] What is part of a body seems obvious enough. I would think that the part should be readily identifiable as part of a body upon visual inspection, whether a natural part or an unnatural part of a body. [36] Remains of the victim to my mind must be what was originally the body of the victim, but changed in some substantial and irreversible way, such that what is left or remnant would not properly be described as a body or part of a body. It is what remains, for example, after significant fire or decomposition affects a body. Another example might be what is left of a body after it has passed through a woodchipper. Remains are the substance of what is remaining of a body. 7 Reasons, [32]. 8 Reasons, [33]. -- 7 of 13 -- 8 [37] Part of the remains of the victim therefore, would be something less than all of the remains of the victim that once existed. For example, a badly burnt body would be the remains, but only part of the remains would be present if the wind blew ash that once was part of the body away (the wind-blown ash might technically still exist but I do not consider it would be properly thought of as remains once incorporated into the environment and indistinguishable from the environment). The words ‘part of the remains of the victim’ I do not consider necessarily implies that the balance of the remains no longer exist. Part of the remains of a victim might be in one location and another part of the remains in a different location, but together adding up to the whole of the remains. Or it may be that some part of the remains no longer exists at all (which might occur, for example, if a body is subject to burning or an acid bath).” [24] Her Honour identified three further reasons to support the Board’s construction of s 175C(b): “[50] The purposes of the Act are achieved where part of the body or remains of the victim have not been located by requiring cooperation from the prisoner where the Board is satisfied that it is because of the act or omission of the prisoner or another person that the missing part of the body or remains of the victim have not been located. [51] Further, to construe the Act in the way contended for by the applicant may lead to unintended consequences. If an act or omission of the prisoner or another person has caused part of the body or remains of the victim to not be located, but with time the relevant part of the body or remains of the victim will cease to exist (for example, by reason of weather effects or animal predation), it may incentivise a no body-no parole prisoner to not cooperate, and instead simply wait until they will no longer by caught by the scheme because no part of the body or remains of the victim then exist. [52] The applicant’s construction would also require speculation from the Board as to whether a part of the body or remains of the victim continues to exist or be recoverable. And that speculation would occur in the possible absence of any helpful information from the prisoner. That is not the likely construction.” This appeal [25] The appellant raises the following grounds of appeal, namely that the primary judge erred in construing s 175C because:9 (a) on its proper interpretation, the word “remains” refers to a circumstance where the whole, or a part, of the body of the victim no longer exist; 9 AB Vol 1, 2. -- 8 of 13 -- 9 (b) therefore, when any missing part of the body or remains of a victim no longer exist and the balance has been located then, on the ordinary reading of the section, the “remains” have been located; and (c) despite this, the primary judge’s construction treats the “remains” of the victim as having not been located in the above circumstances (that is, when any missing part of the body or remains of a victim no longer exist and the balance has been located). Consideration [26] There is no suggestion that the primary judge failed to identify the relevant principles of statutory construction. Her Honour referred to the decision of the High Court in R v A210 and observed: “[7] … What is required is an examination of the text informed by the context, including the mischief that the section was intended to address, having regard to the statutory scheme and the CSA as a whole.” [27] To these principles may be added those identified by Mr Holt KC in the appellant’s written submissions (original footnotes):11 “a. the primary object of statutory interpretation is to construe the relevant provision consistently with the language and purpose of all of the provisions of the statute;12 b. the meaning of a provision must be determined ‘by reference to the language of the instrument viewed as a whole’;13 c. statutory construction begins with a consideration of the text itself (although it does not end there);14 d. the interpretation of a provision of an Act which will ‘best achieve the purpose of the Act’ is to be preferred to any other interpretation;15 e. the meaning of the text may require consideration of the context, including the general purpose and policy of a provision, and in particular the mischief it is seeking to remedy;16 f. the statutory text must be considered in its context, which includes – where the provision is ambiguous or obscure17 – its legislative history and extrinsic materials. But legislative 10 (2019) 269 CLR 507. 11 Appellant’s Outline of Argument, paragraph 9. 12 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]. 13 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] quoting Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 per Mason and Wilson JJ. 14 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–47 [47]; R v A2 (2019) 269 CLR 507, 520–522 [32]–[37]. 15 Acts Interpretation Act 1954 (Qld), s 14A. 16 R v A2 (2019) 269 CLR 507, 520–522 [32]–[37]. 17 Acts Interpretation Act 1954 (Qld), s 14B. -- 9 of 13 -- 10 history and extrinsic materials cannot displace the meaning of the statutory text;18 g. if the text of a provision, read in context, permits of more than one meaning, then the choice between meanings may ultimately turn on the relative coherence of each with the scheme of the statute and its identified objects or policies;19 h. ‘[c]ontext can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense’20 – but ‘the clearer the natural meaning, the more difficult it is to justify departing from it’.21” [28] Section 175C has been set out above. It falls within Chapter 5 which deals with parole. As already noted, the “no body, no parole” scheme was first introduced on 25 August 2017 by the Corrective Services (No Body, No Parole) Amendment Act 2017 which inserted s 193A into the CSA. Further amendments were made to the scheme by the Police Powers and Responsibilities and Other Legislation Amendment Act 2021 which amended s 193A and inserted a new Chapter 5, Parts 1AA and 1AB. As set out above, the primary judge referred to the Explanatory Notes relating to this Bill. Those Explanatory Notes include a reference to the introduction of a new discretion for the Board to consider a prisoner’s cooperation in locating a homicide victim’s remains at any time after sentencing, instead of requiring the Board to wait until the prisoner applies for parole. [29] Division 2 of Part 1AB of the CSA deals with no cooperation declarations. It applies if a no body-no parole prisoner applies for a parole order or if the Board decides to consider whether a no body-no parole prisoner has given satisfactory cooperation: s 175K. If a no body-no parole prisoner applies for a parole order, the Board must first consider whether the prisoner has given satisfactory cooperation. If the Board is not satisfied that satisfactory cooperation has been given, it must make a no cooperation declaration: s 175L and s 175B. [30] Section 175B which contains the definitions for Chapter 5, defines “victim’s location” to mean: “(a) the location, or the last known location, of every part of the body or remains of the victim of the offence; and (b) the place where every part of the body or remains of the victim of the offence may be found.” [31] Section 175B defines “cooperation”, in relation to a homicide offence for which a no body-no parole prisoner is serving a sentence of imprisonment, to mean the cooperation given by the prisoner: “(a) in the investigation of the homicide offence to identify the victim’s location; and 18 Commissioner of Taxation v Consolidated Media (2012) 250 CLR 503, 519 [39]. 19 SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] per Kiefel CJ, Bell and Nettle JJ. 20 SAS Trustee Corporation v Miles (2018) 265 CLR 137, 162–163 [64] per Edelman J. 21 SAS Trustee Corporation v Miles (2018) 265 CLR 137, 162–163 [64] per Edelman J quoting Arnold v Britton [2015] AC 1619, 1628 [18]. -- 10 of 13 -- 11 (b) before or after the prisoner was sentenced to imprisonment for the offence.” [32] Section 175O(1)(a) identifies the material to which the Board must have regard in deciding whether a no body-no parole prisoner has given satisfactory cooperation. [33] Chapter 5 of the CSA does not contain any objects or purpose provision. Relevantly however, s 3 of the CSA sets out the following purposes: “(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders. (2) This 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.” [34] It may be accepted, as was observed by the primary judge, that the “no body, no parole” scheme is intended “to recover for the victim’s family all of the victim’s body/remains”.22 Further, Chapter 5 contains provisions which enable prisoners, upon reaching a parole eligibility date, to make application for a parole order as well as provisions detailing those matters that must be considered by the Board in determining a parole order application. As the primary judge correctly observed, it may be readily accepted that a scheme of parole is important to the purposes of the CSA:23 “Parole offers prisoners supervised integration back into the community which may lessen the risk of reoffending, the prospect of parole encourages good behaviour whilst in prison and provides hope to prisoners of early release. Nearly all prisoners have the right to apply and be considered for parole. The “no body, no parole” scheme may remove that right until certain conditions are met.” [35] Section 14A of the Acts Interpretation Act 1954 (Qld) provides that the interpretation of a provision of an Act which will “best achieve the purpose of the Act” is to be preferred to any other interpretation. Section 175C(b) should therefore be construed so as to best achieve the purposes discussed above. One of the purposes of a no cooperation declaration and the “no body, no parole” scheme as a whole is to encourage and elicit cooperation from the prisoner which might assist “in the possible locating and recovery of the whole of the victim’s body or remains”.24 The primary judge’s construction however, results in a prisoner falling within the definition of a no body-no parole prisoner in circumstances where all of the “remains” of the deceased which still exist or are capable of being located, have been located. No amount of cooperation from the prisoner will change this situation. [36] The appellant submits that her Honour erred in construing s 175C primarily because she failed to give effect to the word “remains”. It is not a defined term in either s 175B or Schedule 4 of the CSA. As the primary judge identified, s 175C 22 Reasons, [48]. 23 Reasons, [9]. 24 Reasons, [22]. -- 11 of 13 -- 12 distinguishes between the meaning of a victim’s “body” (or part thereof) and “remains” (or part thereof). The appellant submits that this distinction is consistent with the ordinary meaning of the two words, “where the word ‘remains’, in the context of a deceased individual, refers to what is ‘left’, ‘remnant’, of the deceased’s body. That is, what ‘remains’ of them.”25 [37] It is appropriate in the present case to have regard to the ordinary meaning of the word “remains”. The word does not take on a meaning other than its ordinary meaning when considered in its statutory context.26 The appellant identifies the ordinary meaning of the word “remains” by reference to the following extracts from the Cambridge Dictionary:27 “Remains Noun [plural] Pieces or parts of something that continue to exist when most of it has been used, destroyed, or taken away. human/someone’s remains Someone’s dead body or the remaining parts of it: • 50 years ago after he died, his remains were returned to his homeland. • Human remains were found in the woods.” [38] By reference to her Honour’s reasoning at [34] to [37], which is set out at [23] above, the appellant correctly submits that the “remains” of a person is something less than the person’s body.28 It follows that, by allowing for a scenario in s 175C(b)(i) where not all of the victim’s body has been located, but all of their remains have, the provision recognises that the person is not a no body-no parole prisoner because all that is left of the body (that is, all of the “remains”) has been “located”. [39] The appellant further submits that s 175C(b)(ii) adopts the same structure.29 This too is correct. It follows that when any missing part of the body or remains of a victim no longer exist and the balance has been located, then, on the ordinary meaning of the section, the “remains” have been located. In other words, it cannot be said that the remains “have not been located”. [40] These observations demonstrate the error made by the primary judge. Despite having accepted that something would not “properly be thought of as ‘remains’ once incorporated into the environment and indistinguishable from the environment”,30 her Honour nevertheless considered that the words “have not been located” do not mean that “the relevant body, part of body, remains or part of remains of the victim must continue to exist”.31 25 Appellant’s Outline of Argument, paragraph 15. 26 Appellant’s Outline of Argument, paragraphs 23–28 citing R v A2 (2019) 269 CLR 507. 27 Appellant’s Outline of Argument, paragraph 15. 28 Appellant’s Outline of Argument, paragraph 17. 29 Appellant’s Outline of Argument, paragraph 18. 30 Reasons, [37]. 31 Reasons, [47]. -- 12 of 13 -- 13 [41] Contrary to her Honour’s construction, once it is accepted that something is not properly “remains” once it is incorporated into, or indistinguishable from, the environment (or, in other words, no longer exists), the phrase “have/has not been located” has no work to do.32 As the appellant correctly submits, this is put beyond argument once her Honour’s interpretation of the word “remains” is substituted into s 175C(b)(ii): “A prisoner is a no body-no parole prisoner if— … (ii) because of an act or omission of the prisoner or another person, part of the … remains of the victim [that is, those parts which have not been incorporated into the environment and are not indistinguishable from the environment] has not been located.” [42] The respondent submits that such a construction requires this Court to read words into s 175C(b). In particular, the respondent submits that the phrases “have/has not been located” in ss 175C(b)(i) and (ii) do not “adjectivally modify the meaning of the noun ‘remains’ (or body) so as to mean ‘existing remains’”.33 This submission is misconceived in that the preferred construction does not require any impermissible additional words to be read into the provision. As was correctly submitted by Mr Holt KC at the hearing of the appeal, it can reasonably be inferred that when a legislature uses a noun to describe a particular thing, as is does here, it assumes that the thing in fact exists.34 This view is fortified by the ordinary meaning of the word. By reference to the extracts from the Cambridge Dictionary relied upon by the appellant, the word “remains” when used as a noun explicitly recognises that something will have been used, destroyed, or taken away so as there to be something which remains. In other words, as a matter of logical implication, the requirement that the remains are those that continue to exist and are capable of being located is implicit in, and arises from, the ordinary meaning of the word itself. [43] It should be observed that if this interpretation is not applied, then the purpose of the “no body, no parole” scheme is largely defeated because no amount of cooperation from a prisoner such as the appellant can ever alter the fact that the remains no longer exist and are incapable of being located. [44] It follows that on the proper construction of s 175C, the word “remains” refers to those remains that continue to exist and are capable of being located. [45] BODDICE JA: I have had the considerable advantage of reading the reasons of Flanagan JA. Those reasons accord with my reasons for joining in the orders made on 23 November 2023. 32 Appellant’s Outline of Argument, paragraph 20. 33 Respondent’s Outline of Argument, paragraph 22. 34 T 1-7 lines 1–10. -- 13 of 13 --