No Body, No Parole – Recent decision of Lincoln v Parole Board of Queensland 
The recent decision of Lincoln v Parole Board of Queensland  QSC 156 demonstrates the application section 193A of the Corrective Services Act 2002. This provision is more commonly referred to as the “No body, no parole law”.
The decision demonstrates that the application of the law does not specifically go to knowledge of the whereabouts of the remains of the victim of an unlawful killing. Rather, it is broader and parole can be denied where a prisoner has not cooperated satisfactorily with the investigation of the offence as a whole which could potentially lead to the location of the deceased.
When does section 193A of the Corrective Services Act apply?
This section creates a restriction on a grant of parole to a prisoner where:
- a person’s remains have not been located; or
- because of an act or omission of the prisoner or another person, part of the body or remains of the victim have not been located.
Under the section, the Parole Board must refuse an application for parole unless it is satisfied the prisoner has cooperated satisfactorily to in the investigation of the offence to identify the victim’s location.
Section 193A will come into operation where a prisoner was convicted of a homicide offence and the victims’ remains have not been located. An eligible offence is an offence pursuant to the following sections of the Criminal Code 1899:-
- Section 236(2) – Misconduct with regards to corpses;
- Sections 302 and 305 – Murder;
- Sections 303 and 310 – Manslaughter;
- Section 307 – Accessory after the fact to murder;
- Section 309 – Conspiracy to murder;
- Section 314A – Unlawful striking causing death;
- Accessory after the fact for the offences of misconduct with regards to corpses, manslaughter, conspiracy to murder and unlawful striking causing death;
- Counselling, procuring or conspiring to commit one of the above offences; and
- For prisoners transferred from interstate who are serving a period of imprisonment in Queensland, an offence against the law of that other State that substantially corresponds with one of the above offences.
Where a grant of parole is sought in the circumstances outlined above, the Board under section 193A (4) of the Act requests a report from the Commissioner of Police as to the applicant’s cooperated or not. This can occur either before a defendant is sentenced or after. The Commissioner’s report will assess:-
- the nature, extent and timeliness of the prisoner’s cooperation; and
- the truthfulness, completeness and reliability of any information or evidence provided by the prisoner in relation to the victim’s location; and
- the significance and usefulness of the prisoner’s cooperation.
When the Parole Board consider the prisoner’s application for parole, the Board will make an assessment having regard to the criteria outlined in section 193A (7)(a) and (b) being:-
- the report provided by the Commissioner; and
- any information the Board has about the prisoner’s capacity to give the cooperation;
- the transcript of any proceeding against the prisoner for the offence, including any relevant remarks made by the sentencing court; and
- any other information the Board considers relevant.
Further information about the parole process in these circumstances is provided by the Queensland Parole Board here: https://publications.qld.gov.au/dataset/parole-board-secretariat-and-victims-register/resource/4a4c38d7-6efb-46a5-a8e1-5539bbc2a946
Lincoln’s Application for Parole
The applicant was sentenced to nine years imprisonment for manslaughter and two years imprisonment, cumulative on a previous sentence for possession of methylamphetamine in excess of 2.0 grams with a parole eligibility date set at not before five years.
The body of the victim of the manslaughter offence has never been found, the applicant was not present at the time of the victim’s death nor involved in the disposal of the victim’s body. The applicant does not know where the victim’s body is located.
In fact, Mr Lincoln was found guilty of manslaughter by virtue of section 8 of the Criminal Code on the basis that the unlawful killing was a probable consequence of the force used to enable the abduction of the deceased.
When considering the application, the Board had regard to the agreed schedule of facts on which Lincoln was sentenced which outlined that Lincoln, organised the forced abduction of the deceased and the motivation was money to be paid by the Odin’s Outlaw Motorcycle Gang. It was also highlighted on that the applicant “wanted to get some boys up from Brisbane” and that on the morning of the abduction another man was present with Lincoln.
At preliminary hearing the Parole Board asked four questions of Lincoln based on the matter arising from the agreed schedule of facts from the sentencing hearing:-
- Whether the persons who promised the money had knowledge of the location of the body;
- Whether the applicant had further contact with others regarding the location of the body;
- The source of the money; and
- How the applicant knew that a possible disposal site for the body was Collinsville, some 240 kilometres west of Mackay
During the course of the hearing the President of the Parole Board made enquiries in relation to the three cars which were involved in the abduction and who the occupants of the third car were (as it had never been determined by police and they had never been identified by either of the three co-offenders who had been sentenced in relation to the same killing).
It was the President’s view that as the applicant had organised the abduction, he would have knowledge of who the occupants of the third car were and on that basis, those persons may have knowledge of the location of the deceased. It was the Board’s view that Lincoln was in a position to assist in respect of these matters. A further statement was provided by Lincoln, however it ultimately failed to identify the occupants of the third car involved in the abduction.
The Board refused a grant of parole on the basis that:-
- the Board, after considering all of the available information, concluded that it was not satisfied the Applicant had cooperated satisfactorily in the investigation of the offence to identify the victim’s location;
- the Applicant had not cooperated to the best of his ability;|
- there was no basis for finding that the facts contained in an agreed schedule from sentencing should not be relied upon;
- the Board was fortified by statements made by the Applicant in his application for parole;
- despite being ‘the organiser of the group’, he stated he was not aware of who else went to the unit on the night of the offence;
- having regard to section 193A(7)(a)(ii) of the CSA, the Applicant had capacity to provide further information, regarding the persons who accompanied him on the night of the offence and this may assist the investigation.
The applicant sought of judicial review of a decision of the Parole Board who refused to grant parole on 5 December 2018 on the basis that the Board was not satisfied Lincoln provided satisfactory cooperation in relation to the located of the deceased.
Lincoln’s Judicial Review
Lincoln’s application for statutory review was based on three grounds pursuant to the Judicial Review Act 1991, specifically that the Board denied Lincoln natural justice, the Board failed to take into account relevant considerations and the Board took into account irrelevant considerations.
Ground One: Natural Justice
The natural justice argument was that the refusal was an improper exercise of the power conferred on the Board by the Corrective Services Act. However this ground was abandoned.
Ground Two: Relevant Considerations
Lincoln’s second ground that the Board failed to take into account relevant considerations was also unsuccessful. It was argued that he had no capacity to cooperate as it was accepted that he was not involved in the disposal of the body.
However, the Court was of the view even though a co-accused involved in the same killing had provided information in relation to the body’s location and that the co-accused were best placed to provide information as to the location of the deceased’s remains, that does not mean that Mr Lincoln does not have capacity to give cooperation under s193A(7)(a)(iii).
Expanding on that point, the Court noted the Parole Board’s conclusion that Lincoln had the capacity to cooperate, and did so unsatisfactorily, was not based on knowledge of the specific location of the deceased’s remains. Rather, that basis arose from matters which were the subject of the agreed statement of facts at his sentence which could lead to the location of the deceased, specially that Lincoln:-
- organised the forced abduction of the deceased;
- the motivation was money to be paid by the Odin’s Outlaw Motorcycle Gang; and
- “wanted to get some boys up from Brisbane” and on the morning of the abduction another man was present with Lincoln.
Ground Three: Irrelevant Considerations
It was conceded that given the fact that other people were present when the deceased was abducted and Lincoln was the organiser of the abduction, the Parole Board had a reasonable basis for asking the four questions and that the onus was Lincoln to establish that the four questions constituted irrelevant considerations.
This ground failed on the basis that, in accordance with section 193A(7)(b) the Board is empowered to have regard to such information it considers relevant and that the Board has the power to ask questions of the applicant in order to determine whether they have cooperated satisfactorily under section 193A(2).
The Court also turned to the wording of the provision, “cooperated satisfactorily in the investigation of the offence to identify the victim’s location”. The provision is broadly drafted and is not limited to enquiries focused solely on the location of the deceased’s remains and question can be asked of the offence globally including the “investigation of the offence”. It is not an irrelevant consideration that the Board asked questions focused on the identity of the occupants of the third car involved in the abduction of the deceased. It was relevant to the investigation of the offence as that information could lead the location of the deceased’s body.
Ultimately, the Parole Board and the Court did not accept Lincoln’s evidence that he was unable to provide satisfactorily cooperation into the above matters, which formed the basis of the questions asked by the Board at the preliminary hearing.
Mr Lincoln’s application was dismissed with costs.
When applying for parole in circumstances where section 193A applies it is important that you seek legal advice in relation to your application.
However, we would encourage anyone who is making an application for parole to seek advice on their application before lodging as strict time limits can apply, especially where decisions have already been made by the Parole Board.
We Can Help
This means we are well placed when advising in relation to applications for parole made in the first instance pursuant to the Corrective Services Act 2002 and also avenues for judicial review pursuant to the Judicial Review Act 1991 if appropriate grounds exists.