In this interesting application for judicial review, the applicant sought to challenge the refusal of his parole application under the “no body, no parole” legislation. In assessing the application, Flanagan J considered the statutory definition of a “victim’s location” in s 193A(8) of the Corrective Services Act 2006 to ascertain whether the use of the words “location” and “place” in the definition permitted a two-stage test being adopted. His Honour also considered the requirement to consider both pre- and post-sentence cooperation.
1 March 2019
On arraignment, the applicant plead guilty to accessory after the fact to a manslaughter committed in April 2012. . Sentencing was adjourned, however, to allow the applicant to direct police to the location of the remains of the deceased. . Two days before the new sentencing date, the applicant identified to the police a remote area of bushland at Newlands, some three hours out of Mackay –. No remains were found.
The applicant was sentenced to five years' imprisonment on 3 June 2016, with a parole eligibility date of 20 January 2018. . On 21 July 2017, the applicant filed an application for parole. . On 26 September 2017, the applicant again spoke to police about the location of the deceased's body. . He identified on a map where the deceased's body was disposed of, but also revealed that the deceased's body had been cremated. .
Significantly, the application for parole is subject to the "no body, no parole" legislation which commenced on 25 August 2017. . This amending legislation incorporated a new s 193A into the Corrective Services Act 2006. . Section 193A relevantly reads:
“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.
(3)For subsection (2), the cooperation may have happened before or after the prisoner was sentenced to imprisonment for the offence.
(8)In this section—
victim’s location means—
(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.”
The respondent ultimately refused the application for parole on 7 November 2018 as it was not satisfied that the applicant had cooperated satisfactorily to identify the location of the deceased’s body. . Before the Supreme Court, the applicant sought judicial review of this third decision on two primary grounds.
First, he submitted that the respondent erred in "deciding that the definition of "victim's location" in s 193A(8) required a two stage test whereby the applicant had to satisfy the respondent that he had cooperated satisfactorily to identify the location and then the place where the body may be found". . This ground focused on the respondent drawing a distinction between the “location” and the “place” where the remains may be found. In the respondent’s view, although the applicant showed the police the broader location where the deceased’s remains were left, and purported to show them the specific place where they were left, the former was corroborated, whilst the truth of the latter relied on an assessment of the applicant’s credibility. –.
Flanagan J considered that the ordinary and natural meanings of the words “location” and “place” were different. . This was so especially where the legislature used them conjunctively in a definition. . His Honour found that there was no reason to justify the departure from such an interpretation where the provision is neither ambiguous nor obscure. . Ultimately, s 193A is intended to encompass an array of different factual scenarios regarding the disposal of remains, and provide a means through which the respondent can assess its satisfaction as to whether an applicant has “cooperated satisfactorily”, regardless of whether or not a body is actually found. . As such interpretation “best achieves the policy behind the enactment of s 193A”, his Honour found that this ground was not made out. .
Secondly, the applicant submitted that the respondent committed an error of law by failing to properly consider the applicant's cooperation both before and after he was sentenced, pursuant to s 193A(3). . Essentially, in his submission, the respondent gave undue weight to the fact that the applicant did not reveal that the deceased’s body was cremated until after his parole application and after the introduction of s 193A. –. Flanagan J found that the respondent did in fact consider both pre- and post-sentencing cooperation, and took into account the background and chronology of events. . Accordingly, in his Honour’s view, this ground was not made out. .
In the event, the application was dismissed. .