Armitage v Parole Board Queensland

A critically important issue was considered in this application – whether, in circumstances where approximately 80-85% of the victim’s skeletal remains had been located but the rest had not, the applicant was a no body-no parole prisoner within the meaning of s 175C(b) Corrective Services Act 2006. In short, the applicant sought to argue that in circumstances where all that remained of the victim had been recovered, the respondent lacked jurisdiction under the “no body, no parole” scheme in relation to him. Justice Hindman found that the respondent had not erred in law in concluding that s 175C applied to the applicant. She further noted that to construe the Act in the way contended for by the applicant could potentially result in unintended consequences, including requiring that the Board engage in speculation concerning whether a part of the body or remains of a victim continued to exist or be recoverable.

Hindman J

22 September 2023

The respondent had determined that s 175C applied to the applicant (such that the applicant was considered a no body-no parole prisoner). In early 2023 it made a no cooperation declaration in respect of the applicant (s 175L). That decision was the subject of challenge by the applicant for error of law. [6].

The legislation

Section 175C Corrective Services Act 2006 provides as follows:

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.

The respondent contended that as 80-85% of the victim’s skeletal remains had been located but the balance had not, because the applicant or another person neglecting to properly bury the victim and hence protect it from the elements and animals, s 175C(b) was satisfied and it followed that the applicant was considered a no body-no parole prisoner. [3]. By contrast, the applicant essentially sought to argue that the provision was not met, since 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) in order for subsection (b) to be satisfied. He argued that the respondent had no jurisdiction under the “no body, no parole” scheme since all that remained of the victim had been found [4] and the missing parts of the victim’s body could not be retrieved since they no longer existed. [5].

Consideration

Her Honour carefully considered the wording of s 175C informed by its context, including the mischief that the section was designed to address, the statutory scheme and the Act as a whole: see R v A2. (2019) 269 CLR 507. She noted that whilst the intent of the “no body, no parole” scheme is to incentivise prisoners to provide information in order to assist in locating and recovering the whole of the victim’s body or remains, actual recovery is not vital. [22]. Unfortunately, no authorities have examined the proper construction of s 175C or for that matter equivalent provisions. [29].

Her Honour held:

1.Where some 85% of the victim’s body has been recovered, it cannot be concluded for the purposes of s 175C(b)(i) that the body or remains of the victim have not been located. Subsection (i) applies to the scenario where no part of the body or remains of the victim have been located whatsoever. [32];

2.Section 175C(b)(ii) is intended to apply in circumstances where the entire body or remains of the victim have not been located. [33];

3.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.” Each component should be easily identifiable upon visual inspection. By contrast, remains have decomposed permanently to the extent that what is remnant would not properly be identified as part of a body. Remains will result from environmental acts such as fire or the deliberate mutilation of a corpse. [34]–[37];

4.The words “part of the remains of the victim” do not necessarily suggest that the balance of the remains no longer exist. Part of the remains of a victim might be in separate locations, but together comprise the entire remains. Alternatively, a portion of the remains might no longer exist at all, for example due to deliberate human intervention. The difference on a case to case basis may be difficult to ascertain, depending upon the condition of what is left of the victim. [37]–[38];

5.Whilst s 175C(b)(ii) logically contemplates circumstances where part of the body or part of the remains of the victim will not be locatable due to a cause other than the act or omission of the prisoner or another person, in practice deciding what those circumstances would be presents difficulties since it could be readily argued that no part of the body or remains of the victim would be unlocatable had the homicide offence not occurred. [45];

6.The words “have/has not been located” in s 175C do not require that the relevant body, part of body, remains or part of remains of the victim continue to exist: “[t]hat 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”. [47];

7.The purposes of the Act are achieved where part of the body or remains have not been located, by requiring the prisoner’s cooperation where the Board is of the opinion that it is due to the act or omission of the prisoner or another person that the missing part of the body or remains have not been located. [49]–[50].

Disposition

Since no error of law was apparent in the respondent’s construction of s 175C Corrective Services Act 2006 as contended by the applicant, the application was dismissed. [54].

A Jarro