Armitage v Parole Board Queensland [2023] QSC 209 [2023] 39 QLR

SUPREME COURT OF QUEENSLAND CITATION: Armitage v Parole Board Queensland [2023] QSC 209 PARTIES: MATTHEW LESLIE ARMITAGE (applicant) v PAROLE BOARD QUEENSLAND (respondent) FILE NO/S: BS2380/23 DIVISION: Trial Division PROCEEDING: Application for judicial review ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 September 2023 DELIVERED AT: Brisbane HEARING DATE: 11 September 2023 JUDGE: Hindman J ORDER: The application is dismissed. The applicant is to supply submissions on costs by 3 October 2023. The respondent is to supply submissions on costs by 10 October 2023. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – UNREASONABLENESS - where the applicant was convicted of manslaughter - where parts of the body of the victim have never been located – where the applicant made an application for parole under the provisions of the Corrective Services Act 2006 (the Act) - where the Act empowered the respondent to grant or refuse parole - where argument as to if the applicant is a no body-no parole prisoner under the Act - where by s 193A of the Act the respondent must refuse parole for a no body-no parole prisoner unless “satisfied the prisoner has cooperated satisfactorily in the investigation of the offence to identify the victim’s location” – where the respondent purported to make a decision that the applicant was a no body-no parole prisoner and had not “cooperated satisfactorily in the investigation of the offence to identify the victim’s location” CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION Corrective Services Act 2006 (Qld), ss 175B, 175C, 175K, 175L, 175O, 175P, 175Q, 175R, 176B, 180, 193A -- 1 of 12 -- 2 Corrective Services (No Body, No Parole) Amendment Bill 2017 Police Powers and Responsibilities and Other Legislation Amendment Bill 2021 R v A2 (2019) 269 CLR 507 Renwick v Parole Board Queensland [2019] 2 QR 645 COUNSEL: A Scott KC and D Caruana for the applicant D Keane KC and S Robb for the respondent SOLICITORS: Jahnke Lawyers for the applicant Parole Board Qld Legal Services for the respondent Introduction [1] Section 175C of the Corrective Services Act 2006 (Qld) (CSA) is the gateway provision to the application of Queensland’s “no body, no parole” scheme to certain prisoners. It provides: 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. [2] The parties agree that s. 175C(a) is satisfied in this case. The parties dispute whether s. 175C(b) is satisfied. This case concerns the proper construction of s. 175C(b). [3] The respondent, Parole Board Queensland (Board), contends that in the circumstances of this case where about 80-85% of the victim’s skeletal remains have been located but the balance of the victim’s body/remains1 have not been located (because of an act or omission of the prisoner or another person2), s. 175C(b) is satisfied and accordingly the applicant is a no body-no parole prisoner. 1 Including hands, feet and part of a shin bone. 2 Namely, 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. This part of the decision of the Board is not subject to any challenge in the proceeding. -- 2 of 12 -- 3 [4] The applicant, who is the relevant prisoner, contends that s. 175C(b) is not satisfied. He says implicit in the terms of subsection (b) are that the missing part of the body or remains (or at least part of them) must still be in actual existence (in the sense of being recoverable) for subsection (b) to be satisfied. If not in actual existence, then the applicant says he is not a no body-no parole prisoner and the Board is without jurisdiction under the “no body, no parole” scheme in respect of the applicant. Put another way, the applicant contends that the Board is without jurisdiction under the “no body, no parole” scheme if all that remains of the victim has been located. [5] The applicant contends, and there is an evidentiary basis for concluding, that in this case the missing part of the body or remains of the victim are not in actual existence any longer; through a combination of fire, weather effects, decomposition and likely having been predated or moved by animals. It is not for me to determine what has occurred with the missing part of the body or remains of the victim in this case. The question here under consideration is an issue of jurisdiction. If the applicant’s construction of s. 175C(b) is correct then the parties are agreed that in this case the Board has not turned its mind to the correct jurisdictional question and has committed an error of law that would warrant the intervention of this Court. [6] On the basis that the Board concluded that s. 175C applied to the applicant (such that the applicant is a no body-no parole prisoner), on 13 February 2023 the Board made a no cooperation declaration in respect of the applicant (s. 175L). That is the decision the subject of challenge for error of law. I conclude that the Board has not committed any error of law in the manner alleged by the applicant. The Board’s construction of s. 175C(b) is correct. Principles of construction [7] The relevant principles of statutory construction are not in dispute: see R v A2.3 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. 3 (2019) 269 CLR 507. -- 3 of 12 -- 4 Legislative scheme [8] The CSA is an Act to provide for corrective services, and for other purposes. The purpose of the CSA is set out in section 3. Chapter 5 of the CSA concerns parole. [9] It is readily accepted that a scheme of parole is important to the purposes of the CSA. 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. [10] A no body-no parole prisoner can be made subject to a no cooperation declaration by the Board. Whilst that declaration remains in force, the prisoner is ineligible to be considered for either exceptional circumstances parole (s. 176B) or other parole (s. 180(2)(d)). See also s. 193A(2) of the CSA. [11] The “no body, no parole” scheme works as follows. [12] The s. 175B definition of no body-no parole prisoner refers to s. 175C. Section 175C provides: 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. [13] No cooperation declarations are made under division 2. The division applies if (s. 175K): (a) a no body-no parole prisoner applies for a parole order under section 176 or 180; or -- 4 of 12 -- 5 (b) the Board decides to consider whether a no body-no parole prisoner has given satisfactory cooperation. [14] Section 175L provides: Parole board may make no cooperation declaration If the parole board is not satisfied a no body-no parole prisoner has given satisfactory cooperation, the parole board must make a declaration under this division (a no cooperation declaration) about the prisoner. [15] Cooperation is defined in s. 175B to be: in relation to a homicide offence for which a no body-no parole prisoner is serving a sentence of imprisonment, means 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. [16] Cooperation in s. 175B is not cooperation at large by the prisoner. It is cooperation (whenever given) specific to identifying the victim’s location. [17] Victim’s location is defined in s. 175B 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. [18] Renwick v Parole Board Queensland4 (Renwick) confirms that the two parts of the definition of victim’s location are to be read cumulatively (one test with two parts). [19] In deciding whether a no body-no parole prisoner has given satisfactory cooperation, the Board must have regard to the matters set out in s. 175O(1)(a) and may have regard to other information the Board considers relevant (s. 175O(1)(b)). 4 [2019] 2 QR 645 at [19]- [26] (particularly at [24]) per Holmes CJ (with whom the other members of the Court agreed). -- 5 of 12 -- 6 [20] The actual locating of any or all of a victim’s body, remains, part of body or part of remains is not a pre-condition for satisfactory cooperation having been provided by a no body-no parole prisoner. There are many circumstances that can be conceived where even fulsome cooperation of a prisoner will not result in any actual recovery of the victim. For example, the prisoner might have no actual knowledge where the victim’s body was disposed to impart. [21] A no cooperation declaration: (a) will end if the prisoner stops being a no body-no parole prisoner (s. 175P(4)); (b) will end if the Board later is satisfied that the prisoner has given satisfactory cooperation (s. 175Q(c)); (c) may be the subject of a reconsideration application (s. 175R); (d) may be challenged in the same way as other administrative decisions. [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); (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 hearsay5 rather than the direct knowledge of the prisoner). 5 Resulting in there being some uncertainty, indicated by the words “may be found”. -- 6 of 12 -- 7 Relevant extrinsic material [23] The “no body, no parole” scheme was initially introduced in Queensland through the Corrective Services (No Body, No Parole) Amendment Bill 2017 (2017 Bill). The Explanatory Notes to the 2017 Bill explained that it aimed to link parole release for particular prisoners dependent on them satisfactorily cooperating in locating the victims’ remains; offering an incentive for their assistance in finding and recovering the body or remains of the victim. This approach was intended to bring comfort and certainty to the victims’ families. [24] The 2017 Bill inserted s. 193A of the CSA that 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. [25] The above provision was considered by the Court of Appeal in Renwick. There, Holmes CJ, with whom the other members of the Court agreed, held that the statutory context of the provisions indicated that the intent of the provisions was to “locate victim’s remains”.6 As the then Attorney-General explained in relation to the 2017 Bill, the wording of the provisions that refer to the “part of the body or remains of the victim” was “designed to address those horrendous cases where some remains have been found but some parts of the body continue to be hidden or missing”.7 [26] The Police Powers and Responsibilities and Other Legislation Amendment Bill 2021 (2021 Bill) further amended the CSA. Rather than assessing the cooperation of a no 6 Renwick at 655 [24]. 7 The Honourable Yvette D’Ath, Introductory Speech to Parliament, 23 May 2017, Corrective Services (No Body, No Parole) Amendment Bill 2017, Hansard page 1244. -- 7 of 12 -- 8 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 Notes8 to the 2021 Bill clarified the purpose of the amendments: The Bill strengthens the original intent of the NBNP9 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 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. [28] The Explanatory Notes emphasised that in homicide cases, withholding information about the victim’s body or remains prolongs the suffering of families, and every effort should be made to minimise this sorrow.10 Relevant case law [29] There appears to be no decisions dealing with the proper construction of s. 175C of the CSA or equivalent provisions in other jurisdictions (for example, Victoria). [30] I have been referred to a number of cases concerning challenges to decisions of the Board about whether particular prisoners have provided cooperation as required by the CSA, on the assumed basis that the “no body, no parole” scheme did in fact apply to those prisoners; and to decisions of the Board concerning the “no body, no parole” scheme. The applicant identified two decisions of the Board where arguably, on the applicant’s construction of s. 175C, the prisoner may not have been properly subject to the “no body, no parole” scheme at all.11 But none of those cases are particularly helpful to deciding the statutory construction task here required. The cases simply provide some examples of factual circumstances that may be considered under the “no body, no parole” scheme. 8 At page 8. 9 No body, no parole. 10 Explanatory Notes to the 2017 Bill at page 7. 11 In the matter of Klaus Julius Andres; In the matter of Nelson Andrae Patea. -- 8 of 12 -- 9 Analysis [31] As noted above, in this case there is agreement that s. 175C(a) is satisfied. [32] Although it did not seem to be a live issue between the parties,12 I am prepared to proceed on the basis that where some 85% of the skeletal remains of the victim have been located, it cannot be concluded for the purposes of s. 175C(b)(i) that the body or remains of victim of the offence have not been located. The body or remains of the victim have been located, just not in whole. In my view, subsection (i) is concerned with where no part of the body or remains of the victim have been located at all. Any other construction of subsection (i) would make subsection (ii) redundant: if subsection (i) required the whole of the body or the whole of the remains to have been located, then subsection (ii) would have no work to do. [33] Subsection (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. That is the circumstance of this case. [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. [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 12 Although in its decision the Board did not commit to a particular position about the proper construction of s. 175C(b)(i). -- 9 of 12 -- 10 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). [38] The difference between the above concepts in a particular case may be difficult to draw, depending on how what is left of the victim presents. [39] I turn then to the requirements of s. 175C(b)(ii). [40] The precise terms of the subsection are noteworthy as it might have simply said “part of the body or remains of the victim has not been located” which would deal with the situation where some part of the body or remains of the victim have not been located regardless of the cause. [41] The additional words “because of an act or omission of the prisoner or another person” do not seem essential to either side’s construction argument in this case, but I consider it is important to understand what function those words have in constructing the whole section. [42] Subsection (ii) requires that part of the body or remains of the victim have not been located because of an act or omission of the prisoner or another person. Causality is often a difficult issue with which the law grapples. [43] An obvious example of where subsection (ii) would be engaged is if the prisoner or another person decapitates a victim and keeps the head as a trophy in location separate to where the victim’s body is located. The head may be unlocatable because the prisoner has placed the head in a separate, unidentified location. [44] However, if the decapitated head is placed on the beach by the prisoner and washes out to sea at high tide, is the head unlocatable because of an act or omission of the prisoner -- 10 of 12 -- 11 or because the tide washed the head away? By reference to this case, if part of the body (be it flesh or some of the skeletal remains) are unlocatable because of the effects of fire, weather and animal predation, is that because the prisoner or another person failed to bury the victim or is it because of fire, weather and animal predation? [45] Subsection (ii) must have in its contemplation circumstances where part of the body or part of the remains of the victim will not be locatable because of a cause other than the act or omission of the prisoner or another person. In such circumstances, the prisoner will not be a no body-no parole prisoner. It may be difficult to decide what those circumstances would be. After all it could be argued that no part of the body or remains of the victim would be unlocatable except for the homicide offence having occurred.13 [46] However, that is not a matter I have to resolve in this case. There is no challenge by the applicant that the Board did not properly consider whether part of the body or remains of the victim had not been located other than by reason of an act or omission of the prisoner or another person. [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. [48] The above interpretation that I prefer is supported by the wide statutory context. Undoubtedly a purpose of the “no body, no parole” scheme is to recover for the victim’s family all of the victim’s body/remains. But if that cannot be achieved, a further purpose of the scheme must be to allow the victim’s family to know where all of the victim’s body/remains last were (even if some or all of the body/remains no longer exist or are not recoverable): even if that be thought to just be of symbolic significance. 13 Although that would not be the likely construction of the causality requirement given the existence of the homicide offence is a separately a condition of the prisoner being a no body-no parole prisoner under s. 175C(a); something more than the fact of the homicide offence is likely to be required by s. 175C(b)(ii). -- 11 of 12 -- 12 [49] The purposes of the Act are not defeated if satisfactory cooperation from the no body- no parole prisoner does not actually cast any more light on the actual whereabouts of all of the victim’s body/remains. [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. [53] There is no error of law in the construction of s. 175C of the CSA by the Board as contended by the applicant. [54] The application is dismissed. The applicant is to supply submissions on costs by 3 October 2023. The respondent is to supply submissions on costs by 10 October 2023. -- 12 of 12 --