In the matter of ZANE TRAY LINCOLN (Applicant)

SECTION 193A CORRECTIVE SERVICES ACT 2006

PROCEEDING: An application for parole

DELIVERED ON: 18 December 2018

DELIVERED AT: Brisbane

HEARING DATES: 10 May 2018; 11 October 2018

MEETING DATES: The Board met to consider the matter on 15 November 2018 and 5 December 2018

CHAIRPERSON: Mr Michael Byrne QC, President of Parole Board Queensland

DECISION: The Board is not satisfied that the applicant has cooperated satisfactorily in the investigation of the offence to identify the victim’s location. The application for parole is, accordingly, refused

Application for parole order where the victim’s body or remains have not been located

[1] Zane Tray Lincoln (‘the applicant’) has applied for parole pursuant to s 180 of the Corrective Services Act 2006 (Qld) (‘CSA’).

[2] The applicant is currently serving a sentence of nine years imprisonment for manslaughter and two years cumulative for possessing a dangerous drug in excess of two grams, the drug being methylamphetamine, with parole eligibility not before five years.

[3] The body or remains of the victim of the manslaughter offence have not been located.

[4] As the offence of manslaughter is a homicide offence within the meaning of s 193A(8)(a)

(iii) of the CSA, the Parole Board Queensland (‘the Board’) must refuse to grant the application for parole unless it is satisfied that the applicant has cooperated satisfactorily in the investigation of the offence to identify the victim’s location.2 Application of s 193A of the CSA

[5] Section 193A(7)(a) of the CSA provides that, in determining whether the applicant has ‘cooperated satisfactorily’ in the investigation of the offence to identify the victim’s location, the Board must have regard to:

(i) a written report of the Commissioner of Police stating whether the applicant has cooperated in the investigation of the offence to identify the victim’s location and, if so, an evaluation of:

a) the nature, extent and timeliness of the applicant’s cooperation;and

b) the truthfulness, completeness and reliability of any information or evidence provided by the applicant in relation to the victim’s location; and

c) the significance and usefulness of the applicant’s cooperation;and

(ii) any information the Board has about the applicant’s capacity to give the cooperation; and (iii) the transcript of any proceeding against the applicant for the offence, including any relevant remarks made by the sentencingcourt.

[6] Further, s 193A(7)(b) of the CSA provides that the Board may have regard to any other information the Board considers relevant.

[7] When determining whether the applicant has ‘cooperated satisfactorily’ in the investigation, the Board is to give the phrase ‘cooperated satisfactorily’, as part of a statutory provision, the meaning that the legislature is taken to have intended it to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

[8] The Board formed the view that, in these circumstances, the legal meaning of ‘cooperated satisfactorily’ corresponds with the grammatical meaning of that phrase.

[9] The Board determined that the grammatical meaning of ‘cooperated satisfactorily’ may be derived with reference to the Shorter Oxford English Dictionary, which provides the following definitions: ‘satisfactory’ - ‘sufficient, adequate; convincing’.5 ‘cooperate’ - ‘act jointly with another (in a task, to an end)’.

Standard of proof

[10] The process of the Board’s decision making under s 193A of the CSA is not adversarial. No onus is cast on the prisoner or the Board in making the determination. Arguably, if there is no onus of proof then there can be no standard of proof (which would be the ordinary standard in civil matters; on the balance of probabilities).

[11] The Board is to consider whether it is satisfied the prisoner has cooperated satisfactorily, and the findings of fact will be those that the Board considers necessary for it to make its decision in this regard. In doing so, the Board is to act fairly (including as to processes) and with common sense, and to inform itself by reference to relevant and probative information so as to draw conclusions on matters in issue to its comfortable satisfaction. The Board is to be cognisant of the seriousness of the findings to be made, including with regard to the gravity of the consequences of its decision under s 193A of the CSA and may, depending upon the issue, express greater caution in evaluating the factual foundation for the conclusion to be reached on that point.

Relevant Information

[12] The applicant pleaded guilty to manslaughter and a drug offence before McMeekin J on 31 May 2016. There was a schedule of facts placed before the Court.

[13] That schedule included the following facts – Approximately two days prior to the abduction, McKay contacted the defendant and advised she had found the deceased and that he was staying in the same unit. The defendant told her that he wanted to meet both McKay and Voorwinden. He further advised he would need time to gather some boys from as far as Brisbane before the meeting. On the day before the abduction, at the defendant’s request, McKay and Voorwinden met the defendant behind the North Mackay Bowls Club aka ‘the Goose ponds’. He also told the two that there was a $30,000 bounty on the deceased’s head. … The defendant told the pair he needed access to the unit to get the deceased. A plan was formed that the backdoor would be kept unlocked in order to effect this. The defendant told the two to make sure Pullen did not leave the unit. Later that night, the defendant, Oakley, Rowland and a few others consumed some drinks at Rowland’s house. At a time between 11pm and midnight on 15 April 2012, the defendant approached Oakley and told him that some people were coming to Rowland’s house to show them where a particular person was staying (the deceased). The defendant told Oakley that the person owed money and that the people who were coming to Rowland’s house were going to take him to work off the debt he owed. The defendant asked Oakley to accompany him. Oakley agreed. At approximately 4:00am the defendant and Rowland woke Oakley. They travelled in a white Toyota Camry to 4/40 Valley Street, North Mackay. Other persons also arrived outside the unit at approximately the same time in two other cars, including a blue Nissan Navara owned by Kister. Stephen Renwick was amongst the group.

[14] The sentencing remarks of McMeekin J include – The facts relating to the manslaughter charge are set out in two schedules, which are agreed. The proceedings concern the abduction and killing of Timothy John Pullen over a drug debt.The persons involved in the crime included these two prisoners. It is evident from the schedule of facts that Mr Lincoln was the principal organiser of the abduction.10 … There was blood throughout the unit and a sofa was burnt or cushions from it burnt in an effort to hide the crime.11

[15] In the applicant’s application for parole dated 1 January 2018, he stated – In April 2012, I was staying in Mackay, Qld. The deceased, Timothy John Pullen, a local drug dealer, owed me money for a drug debt totalling $7000. I had made it known locally that I wanted information leading to the whereabouts of Pullen so that I could confront him and recover the debt. Two days before Pullen’s abduction, I received information regarding where Pullen was staying; he was living on the couch in a downstairs area of a unit in Mackay. Since I already know one resident at the unit where he was staying, I arranged for the unit to be accessible on the night of his abduction. I also arranged for a group of men to accompany me on that night. Such cooperation was possible through the strength of personal loyalties and the promise of money. At approximately four o’clock in the morning of 15 April 2012, a number of people and I drove in three cars to the residence where Pullen was known to be. After verifying with the current residents via text messages that Pullen was indeed home, we entered the unit through the unlocked downstairs area and confronted Pullen. Pullen was uncooperative and was subsequently subdued with considerable force. The extent of the force was reflected in witness statements and in the pattern of bloodshed detected in a forensic investigation.

[16] The Board considered the applicant’s matter at an oral hearing on 10 May 2018. The applicant was represented by a solicitor and counsel.

[17] Prior to the hearing the lawyers for the applicant had been supplied with the material to be relied upon and at the hearing were told – There is still outstanding material that will be supplied to you as soon as it comes to hand. They are the oral submissions made on behalf of Mr Lincoln in the Court of Appeal and any transcripts of the committal proceedings in respect of Mr Lincoln. Once they’re supplied, you will be given, of course, the opportunity to respond to these and the Board would be assisted if you would include in those submissions whether, in your view, they are relevant to the current proceedings.12

[18] In the course of the oral hearing the following exchange took place –

MR CREWS: … He quite simply has deposed today that he doesn’t know and, on that basis, the Parole Board will be satisfied that he has cooperated to the best of his ability and that would be cooperated satisfactorily in answering the threshold question.

PRESIDENT BYRNE: All right. I understand what you’re saying there and I’m grateful for the written submissions identifying the law. Could I then take you to page 197 of the material you have. That’s the report of the Police Commissioner dated 12 March 2018.

MR CREWS: Yes.

PRESIDENT BYRNE: You will see in the penultimate paragraph there – and I will read it: I can advise Mr Lincoln did not provide any assistance to the investigators during the course of the initial investigation. Furthermore, post-sentencing, Mr Lincoln has not provided any information of use to assist in the recovery of the victim’s remains. Do you wish to address that directly, because as you point out, this is a matter the Board must take into account.

MR CREWS: Absolutely. He has addressed in the sense that he has no knowledge of – that he – or he has no power to assist the Commissioner, because he has no knowledge of the location of the deceased. So he can’t assist any more then he already has.

PRESIDENT BYRNE: I think it’s probably fair if I expose my thinking at this stage, to give you a chance to respond. Cooperation is a broad term and you’ve gone to the definition that the Board adopted during its first hearings in relation to this matter. But section 193A of the Act, particularly subsection (6), deals with: … the nature, extent and timeliness of the prisoner’s cooperation; truthfulness, completeness and reliability of any information or evidence; and the significance and usefulness of the prisoner’s cooperation. So just so you know and you have a chance to respond to this, my understanding is that Mr Lincoln was the prime mover and organiser of this enterprise.

MR CREWS: Yes.

PRESIDENT BYRNE: And if you go to page 180, which is part of his parole application, the last paragraph on that page – again, I will read it into the record: Two days before Pullen’s abduction, I received information regarding where Pullen was staying. He was living on the couch in a downstairs area of a unit in Mackay. Since I already known one resident of the unit where he was staying, arranged for the unit to be accessible on the night of his abduction. I also arranged for a group of men to accompany me on that night. Such cooperation was possible through the strength of personal loyalties and the promise of money. I think that’s pretty clear confirmation that he was the prime mover.

MR CREWS: I accept that. That was the basis with which (sic) he was sentenced.

PRESIDENT BYRNE: And has he told the investigators or he’s prepared to tell the Board who those persons were and what the promise of money was?

MR CREWS: Well, we can take those instructions. But is it – is it still the case, though he’s – the threshold question is in relation to the location of the body? And I struggle to see how the assistance with that can resolve the threshold question.

PRESIDENT BYRNE: Let me put it this way, then: it has never been determined who the occupants of one car of the three that proceed to this unit were.

MR CREWS: Okay.

PRESIDENT BYRNE: Mr Lincoln is saying he’s the one that organised them, they had personal loyalty to him and a promise of money. The Board doesn’t know whether or not those persons have knowledge of the location of the body. Mr Lincoln, seemingly, from his own words, is in a position to assist and cooperate. So my question, firstly, is whether he is prepared to do that.

MR CREWS: We’ll take those instructions, but we would need to stand it down and - and ---

PRESIDENT BYRNE: I understand. What I’m doing now is exposing my thinking so you have a chance to clarify, as you’ve just done.

MR CREWS: Sure.

PRESIDENT BYRNE: Because this is his chance, if he wishes to take it, to assist and this legislation is based on cooperation in finding and locating the body.

MR CREWS: Well, we will certainly take those instructions this morning ---

PRESIDENT BYRNE: All right. MR CREWS: --- in relation to that.

MR CREWS: … So my instructions are he accepts he’s guilty and – and he accepts he had a part to play in the crime.14 …

PRESIDENT BYRNE: Well, that’s probably as far as we can take it, unfortunately, today, Mr Crews. But can I just, for the record, and for your assistance, say that the Board expects, as I hope I’ve made clear, a fulsome statement from your client, given particularly the passages that were highlighted this morning. He is the instigator, on his own admission. He was present in the flat in Mackay when these things happened and he was the person who arranged it and was – had personal loyalties from other people. So I just want to make sure that what your client is prepared to supply is a fulsome statement which will go towards the matters relevant to the no body, no parole legislation.15 …

PRESIDENT BYRNE: We understand that and for the purposes of the evidence that is before us, we accept that. But what the Board is having trouble accepting is that the organiser had no further contact, no further knowledge, no further information of the body of the victim that he has now admitted that he’s guilty of the manslaughter of. So they’re the type of things we would like addressed.16 MR CREWS: But I understand what the Parole board is saying in relation to Lincoln being the instigator and he is prepared to provide a further, fulsome statement to address the issues that the Parole Board has raised this morning.17

[19] On 22 June 2018 solicitors for the applicant supplied a three page statement of the applicant to the Board. It stated, inter alia – I knew Renwick through the nightclub scene in Mackay and in particular the Code nightclub in Mackay where I had met him on a couple of occasions at the Club.18 … The first time that I met Kister was either on the evening of 15 April 2012 or the morning of 16 April 2012.19 … I am not and have never been associated with the Odins Outlaw Motorcycle Club. Whilst Timothy was residing at the Neil Road property, Timothy’s father had brought down sewing machines for Timothy to use for doing the upholstery. Duckworth and Timothy had a falling out and Timothy left that address. I did not know where Timothy was. Some months later, Keira McKay contacted me and said Timothy was staying with her. I passed on that information and that led to the ultimate abduction of him as is detailed in the court proceedings. I went from the place where I was staying in Mackay to the unit at 4/40 Valley Street, North Mackay early in the morning of the day of the abduction in a Camry sedan with Ben Oakley. I think there were a total of three cars, namely the Camry, a Nissen (sic) Skyline and the Navara that went to the unit from Nathan Rowland’s place.21 … The group that went to the unit consisted of the four of us, Renwick, Kister, Oakley and myself.22 I walked down to the building and found that the door was locked. I texted Kiera McKay and the door was then unlocked. I was standing outside the unit when Timothy came out after being assaulted in the unit. I went into the unit when he came out and that is when I called out “sorry for the mess”. When Timothy was taken from the unit, Oakley and I left in the Camry sedan and drove back to where we were both then staying with Nathan Rowland. I am not sure who went in the other vehicles.23 Later on the morning of 16 April, I was contacted by Renwick. I can no longer recall how that contact was made except that it was either a phone call or a text message. As a result, I met up with Renwick near the racecourse in Mackay.24 Renwick told me that Timothy had passed away. I freaked out. It did not occur to me before then that what was to happen could have led to his death. I said to Renwick, I don’t want anything to do with this.25 I immediately started making arrangements to leave Mackay.

[20] This statement was supplied to the Commissioner of Police for further consideration in terms of s 193A(4)–(6) of the CSA. A report was received by the Board under cover of a letter dated 25 July 2018 which included – In the statement, LINCOLN seeks to resile himself from the facts as accepted in the sentencing remarks and in statements made by him in the parole application. LINCOLN attempts to minimise his involvement in the homicide of the deceased. Therefore, removing himself from the inference that the prime mover would likely have had communication or knowledge of the deceased’s location.

The statement does not assist the Parole Board in relation to issue one. It is not a fulsome statement and it is not a truthful statement.27 … The statement is silent in relation to any other contact with co-offenders or in relation to the disposal of the body, other than stating …: “I did not have any contact with RENWICK or KISTER after meeting with RENWICK on the 16 April 2012” … “I would be happy for my phone records to be checked to show that I did not have any phone contact with Renwick or Kister who have accepted responsibility for disposing of the body of the deceased.” QPS have checked LINCOLN’s phone records. There were additional communications by LINCOLN with services used by RENWICK and LINCOLN on 17 April 2012. LINCOLN has not mentioned these communications in his statement. … On the 17 April 2012, (Day after event) LINCOLN (omitted) called the service of RENWICK (omitted) at 8.47am for a duration of 63 seconds. At 9.32am LINCOLN (omitted) called the service of RENWICK (omitted) for a duration of 58 Seconds.28 … The account (sic) of LINCOLN to police over the years have generally been unreliable, incomplete and untruthful.

The statement does not assist the Parole board in that it is not a fulsome account of events. It does not provide a clear outline of LINCOLN’s knowledge or the matters to be considered under [s] 193A of the Act. The statement appears to be an attempt to resile from earlier material accepted by LINCOLN, that he was the prime mover in relation to the offence. It is clear that LINCOLN is avoiding providing a fulsome account of events. Based on other material available LINCOLN was the prime mover, he has accepted that is so and clearly has some knowledge that may assist in the recovery of the deceased’s body but he has chosen not to provide a detailed account. LINCOLN’s opposing statements cannot in any way be construed as cooperation. Any material that has been provided by LINCOLN has not been provided in a timely manner that could meaningfully allow the deceased’s remains to be returned to his family.30

[21] The Board convened for a further oral hearing of the preliminary matter on 11 October 2018 to allow lawyers for the applicant to address any matters arising out of the committal and Court of Appeal transcripts, the further statement supplied by the applicant following the hearing on 10 May 2018, and the addendum report of the Police Commissioner.

[22] At that hearing, lawyers for the applicant told the Board that they had not received the additional transcripts and were therefore not in a position to proceed and requested an adjournment.

[23] Enquiries conducted identified that the transcript had been sent to the solicitor for the applicant on 6 June 2018 and were acknowledged to have been received by the solicitor on 7 June 2018. However an adjournment was nevertheless granted to allow further submissions to be made.

[24] Those written submissions were received by the Board on 14 October 2018.

[25] The Board met to consider those submissions on 15 November 2018 and on 16 November 2018 forwarded to the solicitors for the applicant the preliminary decision of the Board and a copy of an index of the Parole Board file.

[26] The Board allowed 14 days for any further written submissions.

[27] On 3 December 2018 an email was received by the Board from the solicitors for the applicant advising that there would be no additional submissions.

Submissions made on behalf of the applicant

[28] In the first set of written submissions dated 10 May 2018 counsel for the applicant submitted – The applicant’s cooperation in the investigation of the victim’s location was undertaken to the best of his ability and therefore the nature and extent of the cooperation has been given satisfactory. (sic)

[29] In the second set of written submissions dated 18 October 2018, counsel expanded the submissions to include – An agreed schedule of facts was tendered. The applicant agreed to elements of the offence of manslaughter outlined in the schedule of facts, after receiving advice. There are background matters in the schedule of facts, that do not go to the elements of the offence, that the applicant does not agree to. The Board convened for a hearing of the applicant’s parole application on 10 May 2018. Statement from Zane Lincoln – 20 June 2018 In response to questions raised by the Board in the hearing of 10 May 2018, the applicant provided a statement dated 20 June 2018. In considering the statement from the applicant, and any inconsistencies with other evidence, it is submitted that the Board would view these inconsistencies in this light:

(a) Any references to any outlaw motorcycle gang or payment of money by this gang, in the schedule of facts should be disregarded, that those references are not accepted by the applicant today, nor did those references go to the elements of the offence to which he pleaded guilty.

(b) Any references to any outlaw motorcycle gang or payment of money by this gang by the witnesses’ Kiera MCKAY or Nicholas VOORWINDEN should be disregarded. These witnesses are unreliable with issues of credit going against their evidence.31 … It is submitted the board will grant the applicant parole.

Analysis

[30] The Board, after considering all of the available information, has concluded that it is not satisfied the applicant has cooperated satisfactorily in the investigation of the offence to identify the victim’s location.

[31] In this regard, on the information, the Board does not accept that the applicant has cooperated to the best of his ability as submitted, nor does the Board consider there is any basis for finding that the facts contained in the agreed schedule at sentence should not be relied upon. [32] These conclusions are fortified by the statements made by the applicant in his signed application for parole, in particular the statement that – I also arranged for a group of men to accompany me on that night. Such cooperation was possible through the strength of personal loyalties and the promise of money.

[33] It may be observed that although, in his words, the applicant was the organiser of the group, he now states that he is not aware of who else went to the unit on the night of the offence.

[34] The Board must have regard to any information the Board has about the applicant’s capacity to give cooperation.33 The Board is of the view that the applicant, as the organiser of the group, has capacity to provide further information regarding the persons who accompanied him on the night of the offence. This information may assist in the investigation of the offence to identify the victim’s location.

[35] The body of the victim has not been located and the applicant has not, on the information available, cooperated satisfactorily in the investigation of the offence to identify the victim’s location.

[36] The application for parole is, accordingly, refused.