SUPREME COURT OF QUEENSLAND
CITATION:
Armitage v Parole Board Queensland [2023] QCA 239
PARTIES:
MATTHEW LESLIE ARMITAGE
(appellant)
v
PAROLE BOARD QUEENSLAND
(respondent)FILE NO/S:
Appeal No 13034 of 2023
SC No 2380 of 2023DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2023] QSC 209 (Hindman J)DELIVERED ON:
Date of Orders: 23 November 2023
Date of Publication of Reasons: 28 November 2023DELIVERED AT:
Brisbane
HEARING DATE:
23 November 2023
JUDGES:
Mullins P and Flanagan and Boddice JJA
ORDERS:
Date of Orders: 23 November 2023
1. The appeal be allowed.
2. The orders made by Hindman J on 22 September and 25 October 2023 be set aside and substituted with:
a. an order that the decision of the respondent made on 13 February 2023 be set aside;
b. a direction that the respondent reconsider the decision according to law; and
c. the respondent pay the applicant’s costs of the application.
3. The respondent pay the appellant’s costs of the appeal.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the appellant was convicted of manslaughter and sentenced to nine years six months imprisonment – where some 80 to 85 per cent of the skeletal remains of the deceased have been located – where it is highly likely that the skeletal remains which are unaccounted for may never be located or no longer exist – where the appellant applied to the respondent for a parole order – where the respondent made a no cooperation declaration in respect of the appellant pursuant to s 175L of the Corrective Services Act2006 (Qld) (“CSA”) – where the respondent could only make a no cooperation declaration if it was first satisfied that the appellant was a no body-no parole prisoner pursuant to s 175C of the CSA – where the primary judge’s construction of s 175C results in a prisoner falling within the definition of a no body-no parole prisoner in circumstances where all of the “remains” of the deceased which still exist or are capable of being located, have been located – 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 – whether the learned primary judge erred in construing s 175C
Acts Interpretation Act 1954 (Qld), s 14A, s 14B
Corrective Services Act 2006 (Qld), s 3, s 175B, s 175C, s 175K, s 175L, s 175O, s 176B, s 180(2)(d), s 193A(2)
Corrective Services (No Body, No Parole) Amendment Bill 2017 (Qld)
Police Powers and Responsibilities and Other Legislation Amendment Bill 2021 (Qld)Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited
Armitage v Parole Board Queensland [2023] QSC 209, related
Arnold v Britton [2015] AC 1619; [2015] UKSC 36, cited
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147…
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- Case
- [2023] QCA 239
- Decision Date
CaseChat Overview and Summary
The legal issues that the court was required to decide were whether the primary judge erred in the interpretation of section 175C and, specifically, whether the term "remains" in that section refers to remains that continue to exist and are capable of being located or to those remains that no longer exist. The appellant argued that when any missing part of the body or remains of a victim no longer exist and the balance has been located, the "remains" have been located according to the ordinary reading of the section. Conversely, the primary judge had found that the "remains" of the victim had not been located under the circumstances where any missing part of the body or remains of a victim no longer exist and the balance had been located.
The court found that the primary judge had erred in her interpretation of section 175C. It held that on a proper construction of the section, the word "remains" refers to a circumstance where the whole, or a part, of the body of the victim no longer exists. The court observed that the primary judge's construction of the section led to the result that the "remains" of the victim were treated as having not been located when any missing part of the body or remains of a victim no longer existed and the balance had been located, which was inconsistent with the ordinary reading of the section. Therefore, the appeal was allowed, and the orders made by the primary judge were set aside.
The court ordered that the decision of the respondent made on 13 February 2023 be set aside, and the respondent was directed to reconsider the decision according to law. Additionally, the respondent was ordered to pay the appellant's costs of the application and the appeal. This outcome resulted in the appellant having the opportunity to have his parole application reconsidered by the respondent, with the appropriate legal principles applied to the interpretation of section 175C of the Corrective Services Act 2006 (Qld).
Orders
Orders of the court
Date of Orders: 23 November 2023
1. The appeal be allowed.
2. The orders made by Hindman J on 22 September and 25 October 2023 be set aside and substituted with:
a. an order that the decision of the respondent made on 13 February 2023 be set aside;
b. a direction that the respondent reconsider the decision according to law; and
c. the respondent pay the applicant’s costs of the application.
3. The respondent pay the appellant’s costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The appellant raises the following grounds of appeal, namely that the primary judge erred in construing s 175C because:[9](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).[9]AB Vol 1, 2.Consideration There is no suggestion that the primary judge failed to identify the relevant principles of statutory construction. Her Honour referred to the decision of the High Court in R v A2[10] and observed:“[7] … What is required is an examination of the text informed by the context, including the mischief that the section was intended to address, having regard to the statutory scheme and the CSA as a whole.”[10](2019) 269 CLR 507. To these principles may be added those identified by Mr Holt KC in the appellant’s written submissions (original footnotes):[11][11]Appellant’s Outline of Argument, paragraph 9.“a.the primary object of statutory interpretation is to construe the relevant provision consistently with the language and purpose of all of the provisions of the statute;[12]b.the meaning of a provision must be determined ‘by reference to the language of the instrument viewed as a whole’;[13]c.statutory construction begins with a consideration of the text itself (although it does not end there);[14]d.the interpretation of a provision of an Act which will ‘best achieve the purpose of the Act’ is to be preferred to any other interpretation;[15]e.the meaning of the text may require consideration of the context, including the general purpose and policy of a provision, and in particular the mischief it is seeking to remedy;[16]f.the statutory text must be considered in its context, which includes – where the provision is ambiguous or obscure[17] – its legislative history and extrinsic materials. But legislative history and extrinsic materials cannot displace the meaning of the statutory text;[18]g.if the text of a provision, read in context, permits of more than one meaning, then the choice between meanings may ultimately turn on the relative coherence of each with the scheme of the statute and its identified objects or policies;[19]h.‘[c]ontext can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense’[20] – but ‘the clearer the natural meaning, the more difficult it is to justify departing from it’.[21]”[12]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69].[13]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] quoting Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 per Mason and Wilson JJ.[14]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–47 [47]; R v A2 (2019) 269 CLR 507, 520–522 [32]–[37].[15]Acts Interpretation Act 1954 (Qld), s 14A.[16]R v A2 (2019) 269 CLR 507, 520–522 [32]–[37].[17]Acts Interpretation Act 1954 (Qld), s 14B.[18]Commissioner of Taxation v Consolidated Media (2012) 250 CLR 503, 519 [39].[19]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] per Kiefel CJ, Bell and Nettle JJ.[20]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 162–163 [64] per Edelman J.[21]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 162–163 [64] per Edelman J quoting Arnold v Britton [2015] AC 1619, 1628 [18].