Hicks (a pseudonym) v Director of Public Prosecutions
[2023] ACTCA 17
•1 May 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Hicks (a pseudonym) v DPP |
Citation: | [2023] ACTCA 17 |
Hearing Date: | 5 April 2023 |
DecisionDate: | 1 May 2023 |
Before: | Baker J |
Decision: | The application for leave to appeal is stood over to be heard together with the substantive appeal. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for leave to appeal interlocutory decision – factors to be considered – demurrer to indictment – incitement to procure a murder – whether the offence of incitement to procure where the offence incited is not carried out is an offence known to law. |
Legislation Cited: | Criminal Code 2002 (ACT) Supreme Court Act 1933 (ACT) |
Cases Cited: | Director of Public Prosecutions v Hicks (a pseudonym) (No 3) [2023] ACTSC 56 Holliday v The Queen [2016] ACTCA 42 Sidaros v The Queen [2020] ACTCA 11 |
Parties: | Laura Hicks (a pseudonym) ( Applicant) ACT Director of Public Prosecutions ( Respondent) |
Representation: | Counsel J White SC ( Applicant) K McCann ( Respondent) |
| Solicitors Legal Aid ACT ( Applicant) ACT DPP ( Respondent) | |
File Number: | ACTCA 12 of 2023 |
Decision under appeal: | Court/Tribunal: ACTSC Before: McCallum CJ Date of Decision: 23 March 2023 Case Title: Director of Public Prosecutions v Hicks (a pseudonym) (No 3) Citation: [2023] ACTSC 56 |
BAKER J:
Introduction
The applicant is charged on indictment for two counts of inciting another person or persons to procure a murder. In brief, the applicant is alleged to have accessed a website on the dark web and that she requested an unknown person(s) on the website to arrange to have her parents killed. The prosecution alleges that the applicant offered to pay $20,000 for the murders, and that she paid approximately $6,000 in Bitcoin to the website for solicitation of the killings. There is no evidence that the unknown person(s) in fact made any arrangements to have the applicant’s parents killed. The applicant’s parents are still alive and are expected to give evidence on behalf of the prosecution at the trial.
The applicant demurred to the indictment and sought that the two counts on the indictment be struck out. The applicant submitted that an offence of incitement to procure, where the offence incited is not carried out, is not known to law. In a decision delivered on 23 March 2023, McCallum CJ dismissed the application and made orders that the appellant answer over to the charges set out in the indictment: Director of Public Prosecutions v Hicks (a pseudonym) (No 3) [2023] ACTSC 56.
The applicant seeks leave to appeal from this interlocutory decision. For the reasons outlined below, I consider that it is appropriate to refer the question as to whether to grant leave to a hearing of the Court of Appeal before three justices.
Principles
Section 37E of the Supreme Court Act 1933 (ACT) provides that an appeal may only be brought against an interlocutory order with leave of the Court of Appeal. The purpose of this requirement is to avoid delay and unnecessary fragmentation of criminal trials and to avoid unnecessary expenditure of court resources: R v DL [2018] ACTCA 9 at [13]. In particular, the requirement for leave recognises that in the usual case, an applicant will be able to appeal against any final orders that are made adversely to the applicant, and that “three judges of the Court of Appeal should not be troubled with an interlocutory appeal” unless there is a sufficient reason to doubt the correctness of the interlocutory decision: DL at [13], citing Quach v Butt [2017] ACTCA 4 at [11]. Finally, the requirement for leave also recognises that criminal trials are “fluid”, and that “facts that are believed to be true may be shown to be false and new facts may emerge”: R v Saunders (1994) 72 A Crim R 347 at 353. During the course of a trial, interlocutory orders may be varied or rescinded by the trial judge where there is a change in circumstance or for other good reason: Saunders at 353. The requirement for leave reflects a legislative intention that the appellate jurisdiction be generally reserved until the trial is finally determined, at which time the evidence will be complete.
The onus is on the applicant to establish that leave to appeal should be granted: DL at [13]. Interlocutory decisions which determine substantive rights will more readily be the subject of a grant of leave in comparison to decisions made in respect of practice and procedure or in the exercise of a discretion: DL at [13].
Determination
As outlined above, the Court will be reluctant to grant leave to appeal against an interlocutory decision in a criminal trial, particularly because of the risk of fragmenting the trial.
In the present case, I accept that any grant of leave in the present matter will not fragment or delay the trial. The applicant’s trial was originally listed to commence on 3 April 2023. In the fortnight before the trial, the prosecution served a critical additional witness statement on the applicant. Mr White SC, who appeared for the applicant, informed me that, as a result of this new witness statement, the nature of the prosecution case has fundamentally changed. In these circumstances, the trial date was vacated by McCallum CJ on the applicant’s application and with the consent of the prosecution.
Mr White SC also informed me that the new witness is put forward by the prosecution as an expert, and that further disclosure is required from the prosecution in respect of this witness. In addition, Mr White SC informed me that it has also recently come to light that there are other matters which the prosecution has not previously disclosed. Finally, Mr White SC advised that after full disclosure is provided, his client will need to make a decision as to whether to obtain an expert report in reply. For these reasons, Mr White SC submitted that the trial is unlikely to be heard this year, and that any interlocutory appeal would not delay the commencement of the trial.
Counsel for the respondent submitted that it may be possible that a trial date will be able be fixed before any interlocutory appeal could be heard or determined. However, counsel for the respondent who appeared on the appeal is not the counsel who is briefed to appear in the trial, and she very properly acknowledged that she could not be certain as to when the prosecution will be in a position to accept a trial date.
In view of the information provided by Mr White SC, it is unlikely that the prosecution will be ready to obtain a trial date in the near future. The trial estimate is 6 weeks. In these circumstances, it is unlikely that the trial will be listed for hearing this year. On the other hand, there is availability in the August sittings of the Court of Appeal. The proposed ground of appeal is confined in nature and should be able to be heard by the Court within an hour or two at the most. I am satisfied, that in the unusual circumstances of the present matter, the hearing of an interlocutory appeal will not delay or fragment the trial.
The proposed ground of appeal concerns whether the offence charged by the prosecution is known to law. It does not relate to a matter which may be affected by the evidence that is ultimately adduced in the trial. I also accept that the proposed ground of appeal concerns a matter related to the applicant’s substantive rights. Any refusal of this application for leave to appeal would not affect the applicant’s right to appeal against a conviction on this ground. However, if the applicant’s contentions are correct, she should not be tried at all. It is not in the accused’s interest, or the community interest, for a six-week trial to be undertaken if it the applicant has been charged with an offence not known to law.
Despite these matters, it would not be appropriate to grant leave to appeal if the applicant’s argument is lacking in merit. I have carefully considered the arguments of both parties.
For the purposes of the present application, the applicant’s argument may be relatively shortly stated. In The Queen v Holliday [2017] HCA 35; 260 CLR 650, the High Court held that, under the Criminal Code Act 2002 (ACT) as it then stood, there was no offence of inciting to procure. In response to that decision, the ACT legislature amended s 47 of the Criminal Code so as to provide that a person commits an offence of incitement if the person urges another person to, inter alia, procure the commission of an offence (s 47(1A) of the Criminal Code) by another person, and that a person may be found guilty of the offence of incitement “whether or not the offence incited was committed” (now s 47(6) of the Criminal Code).
The applicant accepts that the effect of s 47(1A) is that an offence of inciting a person to procure an offence is now an offence known to law. However, she contends that such an offence can only be committed where the offence procured is actually committed. In particular, the applicant notes that in the ACT Court of Appeal’s judgment in Holliday v The Queen [2016] ACTCA 42, Wigney J held that there was an offence of inciting to procure under the Criminal Code Act, but that such an offence would not be made out if the substantive offence was not committed. In so finding, his Honour relied on the then s 47(5) of the Criminal Code, which relevantly provides that “any defence… limitation or qualifying provision applying to an offence applies to an offence of incitement in relation to the offence.” The High Court did not consider it necessary to consider this aspect of Wigney J’s reasoning, because it concluded that the offence of inciting to procure was not known to law, irrespective of whether the offence procured was committed. The applicant submits that, as Refshauge J indicated his agreement with this aspect of Wigney J’s reasoning, this aspect of Wigney J’s decision is binding on this Court.
The applicant submits that s 47 is an accessorial provision, and that it if there is no completed offence, s 47 does not impose liability. The applicant acknowledges that the legislature inserted s 47(6) of the Criminal Code, which states that a person may be found guilty of the offence of incitement “whether or not the offence incited was committed”. However, the applicant submits that this amendment “missed its mark”, because the legislature left unaltered s 47(5) (now s 47(6)) of the Criminal Code, which, as stated above, provides that “any defence… limitation or qualifying provision applying to an offence applies to an offence of incitement in relation to the offence).”
In response, counsel for the respondent submitted that the insertion of s 47(2) created a discrete offence of inciting by urging the commission of an offence. She noted that in the ACT Court of Appeal’s Holliday decision, the Crown was required to rely on s 45 of the Criminal Code as a “mode of liability”. However, counsel submitted that, following the insertion of s 47(2), the prosecution does not need to rely on s 45 of the Criminal Code to establish liability. Rather, s 45 is effectively bypassed, because s 47(2) “makes clear that where there is an intervening party… [the accused is] still … alleged to have committed the offence of incitement.” As there is no need for the prosecution to rely on s 45, the limitations and qualification in s 45 are irrelevant and so s 47(6) is not enlivened.
Counsel for the respondent also submitted that McCallum CJ correctly rejected the applicant’s construction of s 47, noting it would lead to an “absurd result” where the amendment to s 47(5) would have no work to do.
For the purposes of the present application, it is not necessary for me to reach a concluded view as to the relative strengths of each of these arguments. Whilst an application for leave to appeal may be determined by the Court of Appeal constituted by a single judge (s 37J of the Supreme Court Act), it need not be so constituted (see, for example, Sidaros v The Queen [2020] ACTCA 11). I am satisfied that the proposed ground of appeal is sufficiently arguable for the question of leave to be heard by a bench of three judges, particularly in circumstances where such a hearing will not fragment the trial.
It should be clear from the above that I have not granted the applicant leave to appeal. My order is that the question of whether leave should be granted should be heard by the Court of Appeal, comprised of three judges, at the same time as the substantive appeal. An important reason for taking this course is that there is availability in the August sittings of the Court of Appeal. The Court expects that both parties will ensure that the appeal can be heard during those sittings. The Court also expects that both parties will continue to prepare for the trial whilst the application for leave to appeal is pending, so that this referral does not occasion any fragmentation or delay of the trial.
Orders
The application for leave to appeal is stood over to be heard together with the substantive appeal.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 1 May 2023 |
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