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No Body-No Parole Prisoner: Meaning of Remains

No Body-No Parole Prisoner: Meaning of Remains

By Kirstene Groth

Armitage v Parole Board Queensland (2023) 17 QR 297

In Armitage v Parole Board Queensland,1 the Queensland Court of Appeal reviewed the Parole Board’s decision to issue a ‘no cooperation declaration’ for a ‘no body-no parole prisoner’, where the victim’s skeletal remains were likely destroyed by fire or lost due to animal predation. One of the key issues was the meaning of “remains”.

COURT: Queensland Court of Appeal (Mullins P, Flanagan JA, Boddice JA).

PARTIES: Mathew Leslie Armitage (Appellant), Parole Board Queensland (‘Board’) (Respondent).

PROCEDURAL HISTORY: On appeal to the Queensland Court of Appeal, the appellant had a verdict of manslaughter substituted and was re-sentenced on 31 August 2021 to nine years and six months’ imprisonment.2 The Board refused the appellant’s parole application on the basis that he had not cooperated satisfactorily in locating the remains.3 Hindman J dismissed his judicial review application.4 The appellant sought a statutory order of review of the Board’s decision under Part 3 of the Judicial Review Act 1991 (Qld).5

FACTS:

  1. On 12 November 2021, the appellant applied for parole while serving imprisonment for a homicide offence.6 The victim was last seen alive on 13 December 2013.7
  2. On 10 April 2014, about 80–85% of the deceased’s skeletal remains were found in a State forest, missing hands, feet, and part of the tibia, likely due to fire or animal predation.8
  3. The Board determined that parts of the deceased’s body/remains had not been located because of “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”.9 Further searches were unlikely to recover them.10
  4. On 3 February 2023, the Board rejected the appellant’s parole application, and issued a ‘no cooperation declaration’, premised on the appellant being a ‘no body-no parole prisoner’.11 Unless the Board decided to “end it”, the appellant was precluded from parole eligibility.12

ISSUES:

  1. Whether the word “remains” in s 175C of the Corrective Services Act 2006 (Qld) (‘CSA’) refer only to parts that continue to exist and are capable of being located, or does it include parts that may have been destroyed or integrated into the environment?
  2. Whether a prisoner is a ‘no body-no parole prisoner’ under s 175C of the CSA where all the existing remains have been located?
  3. Whether the primary judge erred by interpreting s 175C(b) of the CSA as applying even when missing parts no longer exist, thus failing to give effect to the distinction between “body” and “remains”?

The case turned on statutory interpretation principles, including text, context, purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky‘)),13 and legislative history (Acts Interpretation Act 1954 (Qld) s 14A; R v A2 [2019] HCA 35).14

APPLICANT’S ARGUMENT:

The applicant argued that (a) the Board could only make a ‘no cooperation declaration’ under s 175L of the CSA if it was satisfied of a jurisdictional fact, that the appellant was a ‘no body-no parole prisoner’;15 and (b) the Board had misconstrued s 175C of the CSA as applying when a part, or parts, of the deceased’s body has or have not been identified because they no longer exist.16

BOARD’S ARGUMENT:

The Board argued that because parts of the victim’s body, specifically the hands, feet, and a shin bone, were missing, the remains had not been “located”, justifying the ‘no cooperation declaration’.

RELEVANT LAW:

Corrective Services Act 2006 (Qld)

The CSA relevantly provided in Chapter 5 (Parole):

175B Definitions for chapter

In this chapter— …
cooperation, 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. …

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.

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. …

COURT’S REASONING:

Whether the word “remains” refer to those remains that continue to exist and are capable of being located?

The Court (Flanagan JA, Mullins P and Boddice JA agreeing) held that on the proper construction of s 175C of the CSA, the word “remains” refers to those remains that continue to exist and are capable of being located.17 The ordinary meaning of “remains” implies something left after construction or removal, and logically, a noun presupposes the thing exists and locatability.18 This is implicit in the word itself; no additional words need be read in.19 A contrary construction would defeat the scheme’s purpose of incentivising cooperation to recover recoverable remains.20 Flanagan JA said at [43]–[44]:

… [I]t can reasonably be inferred that when a legislature uses a noun to describe a particular thing, as it does here, it assumes that the thing in fact exists. This view is fortified by the ordinary meaning of the word. The ordinary meaning of the word “remains” when used as a noun explicitly recognises that something will have been used, destroyed, or taken away so as there to be something which remains. In other words, as a matter of logical implication, the requirement that the remains are those that continue to exist and are capable of being located is implicit in, and arises from, the ordinary meaning of the word itself.21

It should be observed that if this interpretation is not applied, then the purpose of the “no body, no parole” scheme is largely defeated because no amount of cooperation from a prisoner such as the appellant can ever alter the fact that the remains no longer exist and are incapable of being located;22

Whether a prisoner is a ‘no body-no parole prisoner’ under s 175C where all of the existing remains have been located?

A prisoner is not a ‘no body-no parole prisoner’ where all existing (and capable of being located) remains have been located.23 Section 175C(b)(i) contemplates cases where not all of the body is located, but all of the “remains” (what is left after destruction) are located, excluding the prisoner from the definition.24

Flanagan JA accepted the appellant’s submission that the “remains” of a person is something less than the person’s body.25 It follows that, by allowing for a scenario in s 175C(b)(i) of the CSA where not all of the victim’s body has been located, but all of their remains have, the provision recognises that the person is not a no body-no parole prisoner because all that is left of the body (that is, all of the “remains”) has been “located”.26 Section 175C(b)(ii) adopts the same structure: if missing parts no longer exist and the balance is located, the “remains” have been located.27

Whether the primary judge erred by interpreting s 175C as applying even when missing parts no longer exist?

The appellant submitted that the primary magistrate erred in construing s 175C primarily because of a failure to give effect to the word “remains”.28 It is not a defined term in either s 175B (Definitions for chapter) or Schedule 4 of the CSA.29 In regard to the ordinary meaning of the word “remains”, Flanagan JA explained at [37] that ‘the word does not take on a meaning other than its ordinary meaning when considered in its statutory context’.30

Flanagan JA determined that the primary judge erred in construing “have/has not been located” in s 175C(b) as not requiring the body or remains to continue to exist.31 His Honour said at [42]:

Section 175C(b)(ii) of the CSA follows that 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 meaning of the section, the “remains” have been located. In other words, it cannot be said that the remains “have not been located”.32

DECISION AND ORDER:

The Court of Appeal unanimously allowed the appeal (Flanagan JA with whom Mullins P and Boddice JA agreed), setting aside the Board’s decision, and making a direction that the Board reconsider the decision according to law: The purpose of the ‘no body, no parole’ scheme is intended to recover for the victim’s family all of the victim’s body/remains.33 The term “remains” refers to what still exists and can be located.34 On the facts, all existing/capable remains were recovered; the appellant was not a ‘no body-no parole prisoner’.35 The decision of Hindman J was reversed.36

SPECIAL LEAVE AND PAROLE:

The Board sought special leave to appeal to the High Court of Australia, but it was refused on 11 April 2024.37 According to ABC News Australia (16 February 2024), Mathew Leslie Armitage was granted parole and released from Woodford Prison in January 2024.38

DISCUSSION:

Statutory Interpretation:

The preferred interpretation is one that best achieves the Act’s purpose under s 14A of the Acts Interpretation Act 1954 (Qld).39 The Court applied a purposive approach (Acts Interpretation Act s 14A; Project Blue Sky).40 Text must be read in context, including purpose (community safety, rehabilitation via parole) and mischief (incentivising cooperation to locate victims’ remains for family closure).41

Meaning of “Remains”:

The Court adopted the ordinary meaning, that what is “left” after destruction or alteration, implying continued existence. If parts are incorporated into the environment and indistinguishable (e.g. bones consumed by animals, ash blown away),42 they are no longer “remains” capable of location. The primary judge acknowledged this but inconsistently held that “have/has not been located” does not require existence.

Legislative Context and History:

The 2017 introduction of section 193A (‘Deciding parole applications—no body-no parole prisoner‘)43 and amendments aim to “locate victims’ remains”.44 The “No Body, No Parole” policy made parole conditional on prisoners in helping find victims’ remains, showing a focus on incentivising prisoner cooperation.45

FOOTNOTES:

  1. Armitage v Parole Board Queensland (2023) 17 QR 297; Armitage v Parole Board Queensland [2023] QCA 239 (‘Armitage‘). ↩︎
  2. R v Armitage & Armitage [2019] QCA 149 (Court of Appeal). ↩︎
  3. Armitage (n 1) [4]–[8] (Flanagan JA). ↩︎
  4. Armitage v Parole Board Queensland [2023] QSC 209 (Hindman J). ↩︎
  5. Armitage (n 1) [13]; Judicial Review Act 1991 (Qld) pt 3. ↩︎
  6. Armitage (n 1) [8]. This application was made by the appellant ahead of his becoming eligible for parole on 9 May 2022. ↩︎
  7. Ibid. ↩︎
  8. Armitage (n 1) [11]; Appellant’s Outline of Argument, R v Armitage & Armitage [2019] QCA 149, [3]; ‘Dr Forde, a specialist pathologist, examined the remains, which she described as bones which were to some degree fragmented, with many of them showing exposure to the elements as well as many showing a degree of damage by fire’: R v Armitage & Armitage [2019] QCA 149, [45]. ↩︎
  9. Ibid. ↩︎
  10. Ibid. ↩︎
  11. Armitage (n 1) [10]–[11]; Armitage v Parole Board Queensland [2023] QSC 209. ↩︎
  12. Armitage (n 1) [10]–[11]; Corrective Services Act 2006 (Qld) ss 176B, 180(2)(d), 193A(2) (‘CSA‘). ↩︎
  13. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky‘). ↩︎
  14. Acts Interpretation Act 1954 (Qld) s 14A; R v A2 [2019] HCA 35. ↩︎
  15. Armitage (n 1) [14]. ↩︎
  16. Ibid. ↩︎
  17. Ibid [1], [44], [45]. ↩︎
  18. Ibid [37], [42]. ↩︎
  19. Ibid [42]. ↩︎
  20. Ibid [35], [43]. ↩︎
  21. Ibid [42], [45]. ↩︎
  22. Ibid [35], [43], [45] ↩︎
  23. Ibid [5]. ↩︎
  24. Ibid [36]. ↩︎
  25. Appellant’s Outline of Argument, R v Armitage & Armitage [2019] QCA 149, [18] from Armitage (n 1) [38]. ↩︎
  26. Armitage (n 1) [38], [45]. ↩︎
  27. Ibid [39]. ↩︎
  28. Ibid [36]. ↩︎
  29. CSA (n 12) s 175(b), sch 4. ↩︎
  30. Appellant’s Outline of Argument, [23]–[28] citing R v A2 (2019) 269 CLR 507, from Armitage (n 1) [37]. ↩︎
  31. Armitage (n 1) [21], [40]–[41]. ↩︎
  32. Ibid [39], [45]. ↩︎
  33. Ibid [1], [34], [45]. ↩︎
  34. Ibid [44]. ↩︎
  35. Ibid [45]. ↩︎
  36. See Armitage (n 1). ↩︎
  37. Parole Board Queensland v Armitage [2024] HCASL 101. ↩︎
  38. ‘No body, no parole’ laws to be tested in High Court after release of ‘Esky Killer’, ABC News (online, 15 February 2024) <https://www.abc.net.au/news/2024-02-16/no-body-no-parole-test-case-in-high-court/103465224>. ↩︎
  39. Armitage (n 1) [26]–[27], [35]; Acts Interpretation Act 1954 (Qld) s 14A (‘AIA‘). ↩︎
  40. Acts Interpretation Act 1954 (Qld) s 14A; Project Blue Sky (n 13); CSA (n 12) s 3. ↩︎
  41. Ibid; see CSA (n 12). ↩︎
  42. Armitage (n 1) [40]. ↩︎
  43. CSA (n 12) s 193A ins 2017 (No 23) (‘Deciding parole applications—no body-no parole prisoner’). ↩︎
  44. Corrective Services and Other Legislation Amendment Act 2020 (Qld) (No 23); Renwick v Parole Board Queensland [2019] QCA 269. ↩︎
  45. Corrective Services (No Body, No Parole) Amendment Act 2017 (Qld) (No 23), CSA (n 12) s 193A. ↩︎
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