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No body-no parole prisoner wins appeal

A no body-no parole prisoner has successfully appealed a Parole Board decision on the grounds his victim’s missing remains probably no longer exist.

Matthew Leslie Armitage was sentenced to nine-and-a-half years’ jail in August 2021 for manslaughter and interference with a corpse.

The skeletal remains of his victim, minus hands, feet and a tibia bone, were found in Toolara State Forest north-east of Gympie in 2014.

Armitage’s application for parole was rejected in February when the board made a no co-operation declaration in respect of Armitage, who is classified as a no body-no parole prisoner under Section 175C of the Corrective Services Act 2006 (Qld):

“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 making of the no co-operation declaration was premised on Armitage being a no body-no parole prisoner, and was made because he failed to co-operate in the investigation to identify the victim’s location, and before or after sentencing.

While such a declaration is in force, a prisoner is ineligible to be considered for parole.

The board’s decision to reject Armitage’s parole application was upheld by the Supreme Court in September, but was overturned last Thursday by the Court of Appeal in Brisbane.

In the reasons published on Tuesday, Justice Flanagan said the decision hinged on whether on the proper construction of s 175C, the word “remains” refers to those remains that continue to exist and are capable of being located.

The board had argued that in the circumstances of this case where about 80 to 85 per cent of the victim’s skeletal remains had been found but the remainder had not (because of an act or omission of the prisoner or another person), s 175C(b) was satisfied.

Armitage had argued that implicit in the terms of b) are that the missing part of the body or remains (or at least part of them) must still exist (in the sense of being recoverable) for subsection b) to be satisfied.

A forensic anthropologist had given evidence to the board that through a combination of fire, weather effects, decomposition and animal predation, it was highly likely the remains unaccounted for would never be found or no longer existed.

“It follows that, by allowing for a scenario in s 175C(b)(i) 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’,” Justice Flanagan said.

“The appellant further submits that s 175C(b)(ii) adopts the same structure. This too is correct. It 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’.”

Justice Flanagan said “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”.

“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,” he said.

“It follows that on the proper construction of s 175C, the word ‘remains’ refers to those remains that continue to exist and are capable of being located.”

Justices Mullins and Boddice agreed with Justice Flanagan’s reasons.

The Court allowed the appeal, and ordered the board to reconsider the decision according to law.

The board was also ordered to pay Armitage’s costs.

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