This judgment concerns the interpretation of the Corrective Services Act 2006 following the Corrective Services (No Body, No Parole) Amendment Act 2017, and consideration of the proper construction of s 193A of the Corrective Services Act 2006.
Holmes CJ and Gotterson and McMurdo JJA
26 November 2019
The appellant sought judicial review of the decision of the Parole Board to refuse parole as they were not satisfied that he had co-operated satisfactorily in assisting an investigation to locate a body within the meaning of s 193A Corrective Services Act 2006. The matter was heard by Justice Flanagan at first instance and it was from this decision that the appeal came before the Court of Appeal. Chief Justice Holmes wrote the leading judgment, with which Gotterson and McMurdo JJA agreed. The appeal was ultimately dismissed.
The appellant had been sentenced to five years’ imprisonment upon a count of accessory after the fact to manslaughter. The death had taken place in April 2012 and the appellant was sentenced in June 2016 upon his plea of guilty on the basis that he had assisted with the disposal of the corpse in central Queensland. –. Prior to the sentence the appellant had assisted Police by directing Police to an area of bushland in order to discover the remains which it was said had been dumped. Nothing was found at that time or in a consequent search. In September 2017 the appellant participated in a further interview with Police and provided new details concerning the manner of disposal of the body including identifying a different area for search. Searches subsequent to that interview did not locate any remains. .
The argument advanced before the Court of Appeal relied on two grounds, the first asserted an error of construction in the phrases “location” and “place” and the impermissible insertion of the word “within” into the relevant section.–. The second ground complained that the primary judge had erred in failing to find jurisdictional error by the Parole Board inasmuch as the appellant’s later co-operation was used to undermine the extent of his overall co-operation the effect of which would be to make the appellant permanently ineligible for parole and disincentivise co-operation generally.–.
The original decision of the Board made adverse findings as to the appellant’s credit and the extent of co-operation based upon the change in information provided to investigators and the relative usefulness of the co-operation. –. Justice Flanagan upheld the decision of the Parole Board on the basis that the terms, location and place as defined were conjunctive and represented a two-stage test. . Further, that nothing in that Act prevented post-sentence co-operation from consideration in assessing the extent of pre-sentence co-operation and the Parole Board had otherwise taken into account co-operation before and after sentence. –.
The Chief Justice opined, in respect of the first ground, that a rational meaning could be derived from the provision if “location” referred to where the remains were in a general sense and “place” in a more specific sense. . A conjunctive reading was also held to be more likely to achieve the purposes of the amending legislation. Notably, the two terms were construed as elements of a test rather than steps and it was considered that no sequence in them was implied. . The Chief Justice further stated that in the specific circumstances of this case the place could refer to a point within a location but that will not necessarily be so in the factual milieu of every case. . As regards the second ground of appeal, her Honour was of the view that no error had been made by the primary judge and the conclusions drawn by the Parole Board, as to the appellant’s credibility and reliability, were open in considering pre-sentence and post-sentence co-operation, severally or together. .
J Feely of Counsel