SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Holliday v The Queen |
Citation: | [2016] ACTCA 42 |
Hearing Date: | 3 November 2015 |
DecisionDate: | 26 August 2016 |
Reasons Date: | 26 August 2016 |
Before: | Murrell CJ, Refshauge and Wigney JJ |
Decision: | 1. Each of the verdicts of guilty of inciting to commit kidnapping is set aside and a verdict of not guilty is entered. 2. In relation to the charge of attempting to pervert the course of justice, the appeal is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Extension of criminal liability – whether offence known to law – incite to kidnap CRIMINAL LAW – PARTICULAR OFFENCES – Offences relating to administration of justice – attempt – attempting to pervert the course of justice STATUTES – STATUTORY INTERPRETATION – Attempt – Criminal Code 2002 (ACT) s 44(2) – “more than merely preparatory” STATUTES – STATUTORY INTERPRETATION – Operation – effect of ss 45 and 47 Criminal Code 2002 (ACT) – whether limitation or qualifying provision |
Legislation Cited: | Accessories and Abettors Act 1861, 24 and 25 Vict, c 94, s 8 Crimes Act 1900 (ACT) s 38 Supreme Court Act 1933 (ACT), s 37O(2)(a) |
Cases Cited: | Britten v Alpogut [1987] VR 929 Henty v Bainbridge-Hawker (1963) 36 ALJR 354 |
Texts Cited: | Attorney-General’s Department, ‘Review of Commonwealth Criminal Law – Principles of Criminal Responsibility and Other Matters’ (Interim Report, July 1990) Attorney-General’s Department and the Australian Institute of Judicial Administration the Commonwealth Criminal Code: a Guide for Practitioners (Australian Institute of Judicial Administration, 2002) Stephen Odgers, Principles of Federal Criminal Law |
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- Holliday v The Queen [2016] ACTCA 42
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- [2016] ACTCA 42
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CaseChat Overview and Summary
The Court was required to determine whether the appellant's actions amounted to incitement to kidnap, considering the elements of that offence and the definition of "more than merely preparatory" for the purposes of an attempt. Furthermore, the Court had to consider whether sections 45 and 47 of the *Criminal Code 2002* (ACT) operated as limitations or qualifying provisions on the general principles of criminal liability, and whether the appellant's conduct constituted an attempt to pervert the course of justice.
The Court reasoned that the offence of incitement required proof that the appellant intended to encourage or procure the commission of the offence of kidnapping. It found that the evidence did not establish that the appellant's actions went beyond mere discussion or contemplation and that there was no sufficient evidence to support a finding that he intended to incite another person to commit kidnapping. Regarding the attempt to pervert the course of justice, the Court held that the appellant's actions, which involved providing false information to the police, were more than merely preparatory and constituted a genuine attempt to interfere with the administration of justice.
Consequently, the Court ordered that the verdicts of guilty for inciting to commit kidnapping be set aside and replaced with verdicts of not guilty. However, the appeal in relation to the charge of attempting to pervert the course of justice was dismissed.
Orders
Orders of the court
1. Each of the verdicts of guilty of inciting to commit kidnapping is set aside and a verdict of not guilty is entered.
2. In relation to the charge of attempting to pervert the course of justice, the appeal is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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