Armitage v Parole Board Queensland

The appellant was convicted of manslaughter and sentenced to nine years and six months imprisonment. When the appellant applied for parole, the Parole Board Queensland made a no cooperation declaration. The declaration was made in circumstances where some 80 to 85 per cent of the skeletal remains of the deceased had been located and where it was unlikely that the rest of the deceased’s remains would ever be located. The issue on appeal was the meaning of the word “remains” in s 175C of the Corrective Services Act 2006. Upholding the appeal, the Court of Appeal found that the word “remains” in s 175C refers to “those remains that continue to exist and are capable of being located”. It was ordered that the orders of the learned primary judge and the respondent be set aside, and that the respondent reconsider the decision according to law.

Mullins P and Flanagan and Boddice JJA

28 November 2023

Background

The appellant was convicted of manslaughter and interference with a corpse. On 31 August 2021, the Supreme Court of Queensland resentenced the appellant to nine years and six months imprisonment. [6]. The appellant’s sentence is due to expire on 31 March 2023. [7].

On 12 November 2021, the appellant applied to the Parole Board Queensland (“the Board”) for a parole order. [8].

On 26 August 2022, the Board conducted an oral hearing in relation to the appellant’s application for a parole order. At the hearing, the Board considered whether to make a no cooperation declaration pursuant to s 175L of the Corrective Services Act 2006 (“CSA”). [9].

On 3 February 2023, the Board made a no cooperation declaration in respect of the appellant. As a result, the appellant was not able to apply for parole or have parole granted unless the Board decided to end the declaration. [10].

The no cooperation declaration was made in circumstances which included that:

(1)the deceased was last seen alive on 13 December 2013;

(2)on 10 April 2014 some human bones were located in a state forest;

(3)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;

(4)Sergeant McGregor accepted that the missing 15 per cent of the deceased remains could be “explained away by the effects of heat, that is the bones were burnt away, or animal predation”; and

(5)a fire had ravaged the area where the deceased’s remains had been found. [11].

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. [13].

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. [15].

The issue raised by the appeal is whether the learned primary judge erred in construing s 175C of the CSA. [4].

The legislative scheme

Section 175C of the CSA falls within Chapter 5 of the CSA which deals with parole. [28]. It 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.” [5].

If a prisoner is a no body-no parole prisoner and they apply for parole, the Board must consider whether they have given satisfactory cooperation: s 175K. If the board is not satisfied that satisfactory cooperation has been given, it must make a no cooperation declaration: s 175L and 175B. [29].

The scheme is intended “to recover for the victim’s family all of the victim’s body/remains”. [34]. The Court observed that one of the purposes of the scheme is “to encourage and elicit cooperation from the prisoner” which might assist with locating the victim’s body/remains. [35].

Reasoning of the learned primary judge

At the heart of the appeal was the meaning given to “remains” in section 175C. The appellant submitted that her Honour erred in construing s 175C primarily because she failed to give effect to the word “remains”. [36].

Relevantly the learned primary judge found that the words “have/has not been located” in s 175C do not mean that “the relevant body, part of body, remains or part of remains of the victim must continue to exist”. Rather, those words require an enquiry “as to whether particular things have then been located”. [21].

Her Honour found that 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”. By contrast, the “remains of the victim” is the body of the victim “but changed in some substantial and irreversible way”. [23].

With respect to the meaning of “part of the remains of the victim”, Her Honour found that it comprised “something less than all of the remains of the victim that once existed”.

Her Honour also found that once incorporated into the environment remains ceased to be remains. [23].

Grounds of appeal

On appeal, the appellant submitted that the primary judge erred in construing s 175C because:

“(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;

(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).” [25].

Court of Appeal

The Court of Appeal agreed that the “remains” of a person “is something less than the person’s body”. [38].

Therefore, the Court explained that when the body or remains of a victim no longer exist, and the balance has been located the “remains” have been located. As such, the person is not a no body-no parole prisoner. [38]–[39].

The Court found that the learned primary judge fell into error in finding 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”. [40].

The Court explained that:

“…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”. [41].

The Court observed that to find otherwise would defeat the purpose of the scheme “because no amount of cooperation from a prisoner … can ever alter the fact that the remains no longer exist and are incapable of being located”. [43].

The word “remains” in s 175C refers to “those remains that continue to exist and are capable of being located”. [44].

Ultimately, the appeal was allowed. It was ordered that the orders of the primary judge be set aside and substituted with an order that the decision of the respondent be set aside and a direction that the respondent reconsider the decision according to law. Orders were also made as to costs. [3].

A Hughes of Counsel