Holland v The Queen

Glenn Roderick Holland applied for special leave to appeal to the High Court of Australia against his conviction for four counts of attempted digital penetration and two counts of cunnilingus. The Crown raised the issue of attempt only at the close of the defence case, and the trial judge left this charge to the jury without providing directions on its elements or how to infer guilt. Holland argued that there was no evidence upon which a jury could convict him of attempt, as it was inconsistent with the complainant's evidence of full digital penetration and, absent evidence of penetration, there was no basis to infer the necessary intent.

The legal issues before the High Court concerned whether the offence of attempt should have been left to the jury, and if so, whether there was sufficient evidence to support a conviction for attempt. Specifically, the court was asked to consider whether the complainant's evidence of penetration was so unequivocal that an alternative charge of attempt was legally impossible, and whether the evidence, particularly the medical findings, could support an inference of intent to commit the completed offence in the absence of proven penetration.

The applicant contended that the Court of Criminal Appeal erred in finding that the medical evidence of potential haemorrhaging or fissures following penetration provided a sufficient basis for inferring an attempt. He argued that this evidence had no logical connection to an inference of a failed attempt and that, without evidence of penetration or other circumstances like resistance or a failed attempt, there was no evidentiary foundation for the jury to conclude intent. The applicant submitted that the Court of Criminal Appeal's judgment, which relied on the doctor's concession, was illogical and that the issue of attempt should not have been left to the jury.