Holliday v The Queen
[2016] ACTCA 42
•26 August 2016
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 (Lawbook, 3rd ed, 2015) |
Parties: | Aaron Holliday (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Pappas, j - attorney (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 53 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decisions: 23 September 2014 Case Title: R v Aaron Holliday Court File Number: SCC 0010/14 |
MURRELL CJ:
The trial
The prosecution alleged that, while in custody awaiting trial on serious criminal charges, the appellant tried to thwart the trial by offering another inmate (Mr Powell) a reward for organising people outside the prison to kidnap two witnesses and force each to adopt a statement that the appellant had prepared (retracting the witness’s evidence against the appellant). The appellant provided the statements to Mr Powell, together with instructions about how the witnesses could be found. The prosecution alleged that, pursuant to the plan, the witnesses were to be video recorded as they read their statements, and the recordings were to be provided to the appellant’s lawyer and utilised to secure acquittals. After their statements were recorded, the witnesses were to be killed. Mr Powell decided that he would not participate and reported the proposal to Corrective Services.
The appellant was tried on five charges: that between 20 May and 14 July 2010 he committed one offence of attempting to pervert the course of justice by avoiding prosecution, two offences of inciting Mr Powell to commit kidnapping and two offences of inciting Mr Powell to commit murder.
The indictment framed the charge of attempting to pervert the course of justice as follows:
Between 20 May 2010 and 14 July 2010 Aaron James Holliday attempted by his conduct to intentionally pervert the course of justice.
The indictment formulated each charge of inciting kidnapping as follows:
Between 20 May 2010 and 14 July 2010 Aaron James Holliday committed the offence of incitement in that he urged Darren Powell to kidnap (the witness).
In relation to the charges of inciting to kidnap, in opening the prosecutor said:
It’s not alleged that [the appellant] intended Darren Powell to commit the kidnapping and murder personally as he was in prison himself at the time, rather that Mr Powell was urged to procure other people or other persons to commit the offence. Now, as a question of law, procuring others to commit the offence would make Darren Powell guilty of committing the actual offence to procure himself...
Mr Powell will tell you he had no intention of helping [the appellant] but told him he would make some inquiries... Later that same day [the appellant] told Mr Powell that he had $150,000 and Mr Powell agreed to make the inquiries... Shortly after this, inmate Powell went straight up to the Corrective Services Officer [and told him what the appellant had said].
At the close of the prosecution case, the appellant submitted that there was no case to answer on the incitement counts because the law does not recognise an offence of inciting another to procure an offence where the latter offence is not committed.
The prosecution response was that, if Mr Powell had procured the kidnappings, then he would be “taken to have committed” the substantive offences of kidnapping and murder, despite the fact that the substantive offences were to be committed by procurement.
The trial judge acknowledged that the submission raised a difficult question, but found that there was a case to answer. Detailed reasons were not given.
The jury returned verdicts of guilty on the charges of attempting to pervert the course of justice and inciting Mr Powell to commit kidnapping. It returned verdicts of not guilty on the charges of inciting Mr Powell to commit murder.
Appeal grounds
The appellant pursued two grounds of appeal:
(a)The trial judge should have found that there was no case to answer on each of the incitement charges.
(b)The trial judge should have “dismissed” the charge of attempting to pervert the course of justice.
The appellant abandoned a ground that claimed that each of the verdicts was unsafe and unsatisfactory.
Part 2.4 of the Criminal Code
In order to understand the appellant’s submissions, it is necessary to consider ss 45 (complicity, including procuring) and 47 (incitement) of the Criminal Code 2002 (ACT) (ACT Code) in their statutory context.
Like any enactment, the meaning of a provision in the ACT Code is to be ascertained by interpreting the text in the context of the ACT Code taken as a whole and without reference to pre-existing law, unless the relevant provision is ambiguous or uses language that has acquired a technical meaning: Stuart v The Queen (1974) 134 CLR 426 per Gibbs J at 437; R v LK (2010) 241 CLR 177 per Gummow, Hayne, Crennan, Kiefel and Bell JJ at 224, and see the summary of principles in R v Barlow (1997) 188 CLR 1 per Kirby J at 31–33.
Sections 45 and 47 are within pt 2.4 of the ACT Code. Part 2.4 is entitled “Extensions of criminal responsibility”. It provides for six ways in which criminal responsibility is extended: attempt (s 44), complicity and common purpose, including procuring (s 45), joint commission (s 45A), commission by proxy (s 46), incitement (s 47) and conspiracy (s 48).
Sections 44 (attempt), 47 (incitement) and 48 (conspiracy) extend criminal responsibility by creating discrete offences. Sections 45 (complicity, including procuring), 45A (joint commission) and 46 (commission by proxy) provide that a person is “taken to have committed an offence” if the requirements of the provision are satisfied.
Offences under ss 44 (attempt), 47 (incitement) and 48 (conspiracy) are inchoate offences; they may be committed regardless of whether the offence attempted/ incited/ conspired does occur, and even if it is “impossible for the offence [attempted/ incited/ conspired] to occur.”
Relevantly, pt 2.4 states:
44Attempt
(1)If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
(2)However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.
(3)The question whether conduct is more than merely preparatory is a question of fact.
(4)A person may be found guilty of attempting to commit an offence even though—
(a)it was impossible to commit the offence attempted; or
(b)the person committed the offence attempted.
...
(7) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the offence.
...
(10)This section does not apply to an offence against section 45 or section 48 (Conspiracy).
45Complicity and common purpose
(1)A person is taken to have committed an offence if the person aids, abets, counsels, procures, or is knowingly concerned in or a party to, the commission of the offence by someone else.
(2)However, the person commits the offence because of this section only if—
(a)either—
(i)the person’s conduct in fact aids, abets, counsels, or procures the commission of the offence by the other person; or
(ii)as a result of the person’s conduct, the person in fact is knowingly concerned in or a party to the commission of the offence by the other person; and
...
(3)To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.
...
(6)A person may be found guilty of aiding, abetting, counselling, procuring, or being knowingly concerned in or a party to, the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.
...
45AJoint commission
(1)A person is taken to have committed an offence if—
(a)the person and at least 1 other person enter into an agreement to commit an offence; and
(b)either—
(i)an offence is committed in accordance with the agreement; or
(ii)an offence is committed in the course of carrying out the agreement.
...
46Commission by proxy
(1)A person is taken to have committed an offence if—
(a)the person procures someone else to engage in conduct that (whether or not together with conduct engaged in by the person) makes up the physical elements of the offence consisting of conduct; and
(b)any physical element of the offence consisting of a circumstance exists; and
...
47Incitement
(1)If a person urges the commission of an offence (the offence incited), the person commits the offence of incitement.
...
(2)However, the person commits the offence of incitement only if the person intends that the offence incited be committed.
...
(4)A person may be found guilty of the offence of incitement even though it was impossible to commit the offence incited.
(5)Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence.
(6)This section does not apply to an offence against section 44 (Attempt), section 48 (Conspiracy) or this section.
48Conspiracy
(1)If a person conspires with someone else to commit an offence (the offence conspired) punishable by imprisonment for longer than 1 year or by a fine of 200 penalty units or more (or both), the person commits the offence of conspiracy.
...
(8) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of conspiracy to commit the offence.
The submissions on incitement to procure the commission of an offence
The appellant submitted that:
(a)Any offence of incitement involves an offender (in this case, the appellant) urging another person (in this case, Mr Powell) to “commit” the “offence/s incited” (in this case, kidnapping), intending that the “offence incited” be committed.
(b)The appellant knew that Mr Powell was in custody and could not commit the “offence/s incited” (kidnapping) as a principal. The appellant intended that Mr Powell would procure a third party (the proposed “hitman”) to physically kidnap the witnesses. If s 45 (complicity, including procuring) applied, Mr Powell would be “taken” to have committed the kidnapping offences.
(c)However, s 45 did not apply. Section 45 works retrospectively; a substantive offence must be committed before liability can extend retrospectively to the person who procured the commission of the offence: s 45(3). The witnesses were not kidnapped. Mr Powell did not even attempt to procure a “hitman” to kidnap the witnesses; instead, he immediately advised the prison authorities of the appellant’s plan. Consequently, Mr Powell was not “taken” to have committed the kidnappings.
(d)In reality, the appellant had urged Mr Powell to attempt to procure the offences of kidnapping and s 44(10) expressly provides that it is not an offence to attempt to procure a substantive offence.
The prosecution accepted that ACT law does not recognise an offence of inciting another to commit any of the three discrete pt 2.4 extension offences; s 47(6) disavows the existence of offences of inciting an attempt, inciting a conspiracy, and inciting an incitement. Nor does the law recognise an offence of attempting to incite or attempting to conspire: s 44(10).
However, the prosecution submitted that:
(a)The law does recognise the offence of inciting to kidnap (including by procuring a third party to undertake the kidnapping), even if no kidnapping occurs. Section 47(4) provides that, in order to commit an offence of incitement, it is not necessary that the “offence incited” is completed; an offence of incitement may occur even if it is impossible to commit the “offence incited”. In this case, it does not matter that a “hitman” did not kidnap the witnesses.
(b)In any event, there was an offence of attempting to incite Mr Powell to commit kidnapping. Such an offence may be committed even if the “communication amounting to the incitement does not, for some reason, reach its intended recipient”. In this regard, the prosecution relied on the passage in the explanatory memorandum relating to the ACT Code offence of attempting to commit an offence, which is set out at [39] below.
(c)Alternatively, the appellant incited a third party (a “hitman”) to commit the offence of kidnapping. Mr Powell was merely a conduit or agent, who was incidentally rendered criminally responsible by s 45.
Is there an offence of inciting another to commit an offence by procurement when the incitee does not procure the offence?
For reasons that were not the subject of submission (but in relation to which the parties were given an opportunity to respond), I have concluded that, at least when no substantive offence occurs, a person cannot be convicted of incitement on the basis that they incited another to procure a third person to commit a substantive offence. It is not necessary to finally decide whether, if a substantive offence is committed, the inciter is guilty.
Any offence of incitement involves two physical elements: the conduct of urging, and the state of affairs that what is urged is an offence. In this case, there is no doubt that the conduct of “urging” occurred. The issue is whether what the appellant urged is an offence. The state of affairs that what was urged was an offence would need to exist at the time of the urging.
Kidnapping is an offence against s 38 of the Crimes Act 1900 (ACT), which provides that a person who takes away or detains a person for advantage commits the offence of kidnapping. But, at least at common law, being an accessory is not an offence. In Peter Gillies, The Law of Criminal Complicity (Lawbook, 1980) at 7, the author states:
But the doctrine of accessoryship per se is not an offence — it is simply a means whereby persons who knowingly instigate, encourage or assist another to perpetrate an independent offence are made liable for this offence along with the perpetrator.
Accessoryship has been described as “derivative liability”: Osland v The Queen (1998) 197 CLR 316 per McHugh J at [70]–[71].
In the NSW Law Reform Commission, Complicity, Report No 129 (2010) at [7.60] the Commissioners state:
It would appear that incitement of another to become an accessory to a crime is not an offence known to the law. This is because accessorial liability only attaches once an offence is complete.
It is accepted that, if the appellant had urged Mr Powell to take away or detain the witnesses to obtain the advantage of having them retract their statements (perhaps not knowing that Mr Powell was physically incapable of doing so because he was a prisoner), then the appellant would be guilty of inciting the offences of kidnapping, regardless of whether Mr Powell kidnapped the witnesses; an inciter may be convicted although the incitee does not even try to commit the offence incited or it is impossible to do so: s 47(4).
But the prosecution case was not that the appellant urged Mr Powell to take away or detain the witnesses himself. As the appellant knew, Mr Powell was in no position to do so because he was a prisoner. Instead, the appellant urged Mr Powell to procure a “hitman” to take the witnesses.
At least at common law, the appellant did not urge Mr Powell to “commit an offence”, because accessoryship is not an offence in itself.
Does the expression “commit an offence”, where it is used in s 47, have a different meaning from that at common law; does it encompass “derivative liability” for an offence?
The first point to note is that, under the ACT Code, the discrete extension offences of attempt and incitement cannot attach to another discrete extension offence: ss 44(10) and 47(6). It would be a strange result if there is no offence of inciting to attempt, inciting to conspire or inciting to incite (each of which is a discrete substantive offence), but there is an offence of inciting another to be an accessory to a substantive offence.
Second, the interpretation for which the prosecution contended would mean that the person closer to the substantive offence could escape liability when the person further from the substantive offence did not. Consider the outcome that could have flowed in this case. If Mr Powell had organised a “hitman” to kidnap the witnesses but the “hitman” had not done so, then the appellant would be derivatively guilty of inciting Mr Powell to commit the offence of kidnapping but, despite his moral culpability, Mr Powell would not be derivatively guilty because the s 45(3) precondition to criminal liability was not satisfied.
Third, the ACT Code is modelled on the Commonwealth Criminal Code 1995 (Cth) (Commonwealth Code). With modifications that appear to be of no relevance to the present question, the ACT Code adopted the general principles of criminal responsibility in the Commonwealth Code. In the process of developing the Commonwealth Code, consideration was given to whether there should be statutory “clarification” to make it plain that a person could be liable for inciting accessoryship. However, as eventually enacted, the Commonwealth Code contained no such “clarification”.
In 1990, a committee chaired by Sir Harry Gibbs produced the Attorney-General’s Department, ‘Review of Commonwealth Criminal Law – Principles of Criminal Responsibility and Other Matters’ (Interim Report, July 1990) (the Gibbs Report) which reviewed Commonwealth criminal law as part of a project to develop an Australian Model Criminal Code. At 240, the Gibbs Report noted that the UK Law Commission had taken the view that incitement to aid, abet, counsel or procure the commission of an offence by a third person was not an offence known to the law because aiding and abetting was not itself an offence. The Gibbs Report recommended at 241 that, on balance, “it should be made clear that it is an offence to incite a person to assist, encourage or procure another person to commit an offence”. Consequently, in the draft legislation that was included in the Gibbs Report, the reference to inciting “an offence” was defined so that “offence” included an offence that was “taken to” have been committed by virtue of a person being “knowingly involved” and “knowing involvement” was defined to include procurement. By that means, the recommended “clarification” was to be achieved.
In 1992, the Criminal Law Officers Committee of the Standing Committee of Attorneys-General, often referred to as the Model Criminal Code Officers Committee (MCCOC) produced a report on general principles of criminal responsibility that included draft legislation: MCCOC, ‘Chapter 2 – General Principles of Criminal Responsibility’ (Final Report, December 1992). Subsequently, the Commonwealth Code enacted most of the MCCOC recommendations. The MCCOC abandoned the Gibbs Report concept of “knowing involvement”, preferring the traditional formula of “aid, abet, counsel or procure”. The “clarification” that had been recommended in the Gibbs Report (to make it clear that it was an offence to incite another to procure a substantive offence) did not find its way into the MCCOC draft legislation, and its omission was not discussed. However, the MCCOC did comment at [404.4]:
The Committee decided that it should not be possible to be guilty of inciting to incite, inciting to conspire, or inciting to attempt. There has to be some limit on preliminary offences... However, there will be no bar to a charge of attempting to incite. The charge exists at common law...
This passage was echoed in the Explanatory Memorandum, Criminal Code Bill 1994 (Cth) (Commonwealth Explanatory Memorandum) and the relevant statement in the Commonwealth Memorandum and was repeated in the Explanatory Memorandum, Criminal Code 2002 (ACT) (ACT Explanatory Memorandum) at 26.
I note in passing that would be inconsistent if, in the context that “there has to be some limit on preliminary offences”, a person who incited another to commit a discrete extension offence of incite, attempt or conspire committed no offence, yet a person who incited another to commit an offence derivatively did commit an offence.
In Stephen Odgers, Principles of Federal Criminal Law (Lawbook, 3rd ed, 2015) (Odgers) at [11.5.495], the author addresses a similar question in relation to the offence of conspiracy:
The question thus arises – does a person conspire “to commit an offence” if he or she conspires regarding conduct that, if it occurred, would “be taken to” constitute the offence? The absence of the provision comparable to s 11.1(7), which provides that “[i]t is not an offence to attempt to commit an offence against s 11.2 (complicity and common purpose), s 11.5 (conspiracy to commit an offence) or s 135.4 (conspiracy to defraud)” might be understood to leave open the possibility of conspiring to aid or abet, etc, the commission of an offence. However, the preferable view would be that s 11.2 and s 11.5 cannot be combined (that is, they are distinct extensions of criminal responsibility). Thus, a person does not conspire to commit “an offence” if he or she conspires regarding conduct that, if it occurred, would not be the offence as defined by the offence-creating provision but would “be taken to” constitute the offence pursuant to s 11.2. There is English authority that the offence of conspiring to aid or abet is unknown to the law (see R v Kenning [2008] EWCA Crim 1534; R v Hollinshead [1985] AC 975) and the same approach should be adopted in respect of the Code. Alternatively, given that criminal responsibility under s 11.2 requires the actual commission of the principal offence before an accomplice can be made liable, it would follow that liability under s 11.5 would not be satisfied simply by an agreement to aid or abet.
In R v Hollinshead, the Court concluded that a conspiracy to aid, abet, counsel or procure a substantive offence was not an offence of conspiracy under the relevant statute. At 985, the Court distinguished between “offences” and a provision that a person who aided, abetted, counselled or procured the commission of an offence was “liable to be tried, indicted and punished as a principal offender”, stating:
That section does not itself create an offence but is in the nature of a deeming provision which also permits the use of a shortened form of indictment.
The same approach was taken in R v Kenning [2009] QB 221, where the Court agreed that a conspiracy to aid and abet an offence was not a statutory conspiracy. The Lord Chief Justice, at [18], referred to a provision like s 44(5) of the ACT Code (the provision stated that it was not an offence to attempt to aid, abet counsel or procure the commission of an offence) and observed that it would be odd if it was an offence to conspire to aid and abet, although no offence to attempt to do so.
A further question that arises is: what if anything is the significance of s 47(5) of the ACT Code, which provides that “any limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence”? As in the ACT Code, the provision appears in the Commonwealth Code in connection with the discrete offences of attempt, incitement and conspiracy. At [11.1.290], in relation to s 11.1(6) of the Commonwealth Code (attempt), Odgers opines that the expression “limitations or qualifying provisions” is unclear.
Even if derivative liability for an offence does constitute an “offence” for the purposes of s 47, it is arguable that the requirement that a substantive offence be committed before liability for incitement can arise is a “limitation or qualifying provision” in relation to the offence of incitement where the “offence incited” occurs by derivative liability.
Attempting to incite the commission of an offence
Although the appellant was not charged with attempting to incite Mr Powell to commit an offence, on the appeal there was considerable argument about whether the appellant could or should have been charged with the offence of attempt. As the offence of attempt was not charged and a case of attempt was not prosecuted, it is not necessary to deal with the argument, but I will discuss it briefly.
I accept that, under the ACT Code, it is an offence to attempt to incite another to commit an offence. First, s 47 creates a distinct offence of “incitement” (s 47 creates “the offence of incitement”). Logically, there is nothing to preclude a distinct offence of attempting to commit the offence of incitement. Consistent with this logic, s 47 expressly excludes what would otherwise be distinct offences of inciting to attempt, inciting to conspire and inciting to incite: s 47(6). Second, s 44(10) expressly states that there can be no offence of attempting to be complicit under s 45 (including by procurement) or attempting to conspire under s 48. If the legislature had intended to exclude an offence of attempting to incite, then the exclusion would have appeared in s 44(10). Third, the ACT Explanatory Memorandum makes it clear that the legislature intended to retain the offence of attempting to incite. The ACT Explanatory Memorandum quotes the following passage from the Commonwealth Explanatory Memorandum:
However, there will be no bar to a charge of attempting to incite. The charge exists at common law (see Crichton [1915] SASR 1 and the English authorities cited in Meehan, The Law of Criminal Attempt (1984) at 201, note 392). This is primarily designed to deal with the situation in which a communication amounting to an incitement does not, for some reason, reach its intended recipient. It is consistent with s 5.01 (3) US Model Penal Code, and the English Law Commission, Attempt, para 2.121.
(Emphasis added)
However, the italicised passage in the Commonwealth Explanatory Memorandum has no application in the circumstances of the present case. The offence of attempting to incite concerns the circumstance that an “incitement communication” does not reach the “intended recipient of the incitement communication”. In this case, the situation was different. Mr Powell was the “intended recipient” of the incitement communication. The “incitement communication” was the conversations and the passing of a document from the appellant to Mr Powell. The incitement communication did reach Mr Powell, its intended recipient. There may have been an attempted incitement if, for example, the appellant had written to a hitman urging him to undertake the kidnappings, but the written communication had been intercepted by the authorities before it reached the hitman.
Argument about incitement by agency
On the appeal, the prosecution sought to put its case in a further way, contending that, via the agency of Mr Powell, the appellant had incited a third party to commit offences of kidnapping. In written submissions, the prosecutor submitted:
Thirdly [the appellant’s] analysis excludes the circumstance as in this case, where the appellant was actually inciting someone outside of the prison to commit the substantive offence, however using Mr Powell as the conduit or messenger to achieve this, in the process also making Mr Powell criminally responsible by virtue of section 45.
Even if, at law, it is an offence to incite a yet to be identified person to commit an offence through an agent in circumstances where there is no prospect of more direct contact between the inciter and the unidentified incitee, it was not until the appeal that the prosecution advanced such a case. It should not be entertained.
The appellant’s submissions on attempting to pervert the course of justice
The appellant complained that the trial judge erred in failing to “dismiss” the charge of attempting to pervert the course of justice.
However, during the trial the appellant did not ask the trial judge to “dismiss” the charge of attempting to pervert the course of justice, did not advance a “no case” submission in relation to the charge and did not even seek a “Prassad direction”.
The appellant abandoned the ground of appeal that claimed that the verdict was unsafe and unsatisfactory. Instead, the appellant submitted that the verdict was unsupportable because the conduct upon which the prosecution relied to establish the offence of attempting to pervert the course of justice was “merely preparatory” to the commission of such an offence.
Consideration of submissions on attempt to pervert the course of justice
The administration of justice involves the due exercise by a court of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons in accordance with the law. The administration of justice is perverted by impairing the capacity of a court to do justice (interfering with the due exercise of the court’s jurisdiction), including by denying the court knowledge of the true circumstances of a case: R v Rogerson (1992) 174 CLR 268 (Rogerson) per Brennan and Toohey JJ at 280, 284.
For conduct to amount to an attempt to pervert the course of justice, the conduct must have two characteristics; it must have “a tendency” to interfere with the due exercise by a court of its jurisdiction, and it must be intended to cause such interference: Rogerson per Mason CJ at 276, Brennan and Toohey JJ at 279, McHugh J at 297. It is “the tendency of the conduct which is decisive”, regardless of whether the conduct achieves its purpose of causing a miscarriage of justice: Rogerson per McHugh J at 298. In addition, in order to establish an attempt to pervert the course of justice pursuant to the ACT Code, the conduct relied upon must be “more than merely preparatory to the commission of the offence” of perverting the course of justice: s 44(2) of the ACT Code.
Neither at the time of the trial nor on this appeal was there any complaint about the manner in which the trial judge directed the jury. The trial judge provided the jury with a clear and accurate exposition of the law. His Honour informed the jury that the intentional placement of false evidence before a court, intending that the court would accept the evidence as true, would constitute the offence of perverting the course of justice. His Honour went on to say:
The Crown must prove beyond reasonable doubt that the accused, intending to pervert the course of justice, did some act towards committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime...
Nor does the law punish acts by a person that are done merely in preparation to committing a crime; for example, it is not an attempt to commit robbery merely if a person purchases a balaclava thinking that it might be used to rob a bank sometime in the future...
He must have actually embarked upon the commission of the crime that he intends to commit... If you form the view that (the acts of the accused) are preparatory acts, the accused is not guilty of the crime of attempt. If, however, the acts have gone further and are immediately connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, the accused may be found guilty of the charge of attempt
In that regard, the acts which the crime relies upon are those of creating the document in which it is suggested that (the witnesses) will be tape-recorded giving a false version of events and suggesting that that will then be placed before the court, so it is that act of preparing the documents that the Crown relies upon as the act which is more than merely preparatory in terms of carrying out that offence of perverting the course of justice.
(Emphasis added)
When is conduct “more than merely preparatory” to the commission of an offence of perverting the course of justice?
In Susak v The Queen (1999) 105 A Crim R 592, Riley J considered this question in relation to a charge of attempted armed robbery. The case was prosecuted under the attempt provision in the Criminal Code 1983 (NT), which differs from that in the ACT Code. At 597, his Honour concluded that the point reached in the proposed criminal enterprise “was not sufficiently proximate” to the intended crime to take it beyond “mere preparation”. In reaching that conclusion, his Honour referred to various tests that have been employed to determine whether conduct has reached the threshold necessary for it to constitute an “attempt” to commit an offence. At 597, his Honour, in effect, noted that the issue is not whether the conduct in question is heinous or harmless, but whether it “amounts to an attempt to commit the (relevant offence)”. In other words, whether conduct is or is not “merely preparatory” will depend upon the nature of the substantive offence to which the attempt relates.
In Odgers at [11.1.150], the author canvasses the various tests that have been applied to determine whether conduct has progressed far enough to warrant liability for attempt, tests such as “substantial act”, “acts of perpetration rather than preparation” and “immediately and not remotely connected with the commission of the offence”. The author notes that, in relation to the Commonwealth Code, the MCCOC selected the “more than merely preparatory” test “which catches cases where D has the necessary fault element and has taken a step beyond mere preparation towards the perpetration of the offence.” The author noted that the MCCOC decided to leave it to the jury to distinguish between mere preparation and perpetration. Likewise, in the ACT Code, the question of whether conduct is “more than merely preparatory” is a matter for the tribunal of fact to decide: s 44(3).
In Inegbedion v The Queen [2013] NSWCCA 291, the New South Wales Court of Criminal Appeal considered the meaning of “more than merely preparatory” in s 11.1 of the Commonwealth Code. At [17] Rothman J (with whom Hoeben CJ at CL agreed) used and refined an “immediately connected” test:
Over and above the proof of an intention to commit the crime alleged, the Crown must also prove, beyond reasonable doubt, that the accused, with that intention, performed some act that went towards the commission of the offence, which act was more than merely preparatory of the crime and was immediately connected with the commission of that crime, having no reasonable purpose other than its commission.
This formulation was adopted by the trial judge when his Honour directed the jury.
In this case, the appellant argued that the acts upon which the prosecution relied were no more than “merely preparatory” to perverting the course of justice.
I disagree. The prosecution alleged that the appellant prepared detailed witness statements, printed the statements, and provided them to Mr Powell. The appellant offered to pay Mr Powell for securing implementation of the appellant’s plan, and a sum was discussed. Under the plan, the statements were to be read by the witnesses, the reading was to be recorded, and the recording was to be provided to the appellant’s lawyer, who was to furnish it to the Court. The appellant made follow-up inquiries of Mr Powell regarding progress of the plan. Other than paying Mr Powell, the appellant undertook most of the tasks that he, personally, was required to undertake pursuant to his plan. The rest was up to Mr Powell. If the jury accepted the prosecution case, it was well capable of establishing that the appellant’s conduct was more than “merely preparatory” to the commission of the offence of perverting the course of justice.
Orders
The orders are:
(a)In relation to each verdict of guilty of inciting to commit kidnapping, the verdict is set aside and a verdict of not guilty is entered.
(b)In relation to the charge of attempting to pervert the course of justice, the appeal is dismissed.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 26 August 2016 |
REFSHAUGE J:
In 2010, the appellant, Aaron Holliday, was in the Alexander Maconochie Centre awaiting sentence for a series of offences against young people.
As a result of conversations he had with a fellow inmate he was charged with a count of attempting to pervert the course of justice and four counts of incitement of the fellow inmate to commit certain offences.
Because the fellow inmate was unable, by virtue of his custodial status, to carry out the other offences, the Crown alleged that Mr Holliday had incited the inmate to aid, abet, counsel or procure the offences which would have, in appropriate circumstances, resulted in him as having been taken to commit the offences by virtue of s 45 of the Criminal Code 2002 (ACT).
Mr Holliday was, on 23 September 2014, convicted of the count of attempting to pervert the course of justice and two of the four counts of incitement. He has appealed against his conviction.
I have had the considerable advantage of reading the draft reasons of Murrell CJ and Wigney J on the appeal.
I agree with both their Honours that the appeal against the conviction for the offence of attempting to pervert the course of justice should be dismissed and with the reasons their Honours gave.
As to the two convictions for the two offences of incitement, I agree that the appeal should be upheld and the convictions set aside.
I agree with the reasons of Wigney J for upholding the appeals against those convictions because, in this case, those offences could not be made out.
Wigney J, in his Honour’s reasons finds that there can, in an appropriate case, be an offence of incitement to commit an offence where the incitee is only taken to be able to commit the offence under s 45 of the Criminal Code. Murrell CJ says that no such offence is known to the law.
Although the reasons given by both their Honours have considerable merit, it is not necessary for the disposition of this appeal to make a decision about that issue. Accordingly, I refrain from doing so, preferring to leave that issue for resolution on another occasion.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 26 August 2016 |
WIGNEY J:
The appellant, Aaron Holliday, was convicted after a jury trial on two counts of urging the commission of an offence contrary to s 47 of the Criminal Code 2002 (ACT) (Criminal Code) and one count of attempting to pervert the course of justice. The offences related to actions taken by Mr Holliday while he was in custody awaiting trial on serious offences. The Crown case, which in large part must have been accepted by the jury, was that Mr Holliday offered money to another inmate, Mr Darren Powell, to organise persons outside prison to kidnap two Crown witnesses in his forthcoming trial and force them to sign statements retracting the evidence that they were to give at his trial. Mr Holliday provided the statements and instructions to Mr Powell. As events transpired, Mr Powell did not take any significant steps in pursuit of Mr Holliday’s plan. He reported it to the authorities.
Mr Holliday appealed his conviction. The grounds of appeal ultimately pursued by him were narrow in compass.
In relation to the two incitement convictions, Mr Holliday argued that the trial judge erred in not dismissing the counts, on his application at the conclusion of the Crown case, on the basis that the offences as charged were not known to the law. The offence that it was alleged Mr Holliday urged Mr Powell to commit was the offence of procuring someone else to commit the offence of kidnapping. Mr Holliday contended that there was no offence of inciting someone to procure the commission of an offence.
In relation to the attempt to pervert the course of justice conviction, Mr Holliday contended that the trial judge should have dismissed that count because the Crown’s particulars of that charge were deficient. In Mr Holliday’s submission, the acts that the Crown particularised as comprising the attempt could not be considered to be more than merely preparatory to the commission of the offence of perverting the course of justice.
I have read in draft the reasons to be published by the Chief Justice. I agree with the orders proposed by her Honour in relation to the ground of appeal relating to Mr Holliday’s conviction on the charges of incitement. My reasons for holding that the appeal in respect of those charges should be allowed differ from those of the Chief Justice. It is necessary for me to set out my reasons, although given that the Chief Justice has explained the relevant background and identified the relevant statutory provisions, I can do so quite briefly. I agree with the Chief Justice that the grounds of appeal relating to Mr Holliday’s conviction for attempting to pervert the course of justice should be dismissed, for essentially the same reasons as those given by the Chief Justice. In the circumstances, my reasons can again be stated briefly.
The incitement count
Section 47 of the Criminal Code provides that if a person urges the commission of an offence (the offence incited), the person commits the offence of incitement.
The incitement charges that Mr Holliday was convicted of were framed in the following terms in the indictment:
Between 20 May 2010 and 14 July 2010 Aaron James Holliday committed the offence of incitement in that he urged Darren Powell to kidnap [the first witness].
Between 20 May 2010 and 14 July 2010 Aaron James Holliday committed the offence of incitement in that he urged Darren Powell to kidnap [the second witness].
It is clear, however, that it was not the Crown case that Mr Holliday urged Mr Powell himself to kidnap anyone. That would not have been possible because, like Mr Holliday, Mr Powell was incarcerated. Rather, the Crown case was that Mr Holliday urged Mr Powell to procure someone who was not in prison to kidnap the prospective witnesses. The Crown case was that in so doing, Mr Holliday urged Mr Powell to commit the crime of kidnapping by operation of s 45 of the Criminal Code. This was made clear in the Crown prosecutor’s opening address:
I should outline that it’s not alleged that the accused intended Darren Powell to commit the kidnapping and murder personally as he was in prison himself at the time, rather that Mr Powell was urged to procure other people or other persons to commit the offence. Now, as a question of law, procuring others to commit the offence would make Darren Powell guilty of committing the actual offence to procure himself. It’s just a mechanism by which we would say the accused urged Darren Powell to commit the (indistinct) offence.
The Crown case statement also referred to s 45 of the Criminal Code in addressing the elements of the incitement counts. Mr Holliday did not object to or raise any complaint concerning this aspect of the Crown case statement or the Crown prosecutor’s opening address.
Section 45(1) of the Criminal Code provides that a person is taken to have committed an offence if the person aids, abets, counsels, procures, or is knowingly concerned in or a party to, the commission of the offence by someone else. However, the person only commits the offence if the person’s conduct in fact aids, abets, counsels, or procures the commission of the offence by the other person and only if the other person actually commits that offence: ss 45(2)(b) and (3).
The learned trial judge also put the incitement counts to the jury on the basis that the offence that Mr Holliday was alleged to have urged or incited Mr Powell to commit was the offence of procuring another person to kidnap the prospective witnesses.
His Honour’s summing up included the following:
Count 4 alleges that between 20 May 2010 and 14 July 2010, the accused committed the offence of incitement in that he urged Darren Powell to kidnap Jacob Tarrant.
Again, the evidence, I would suggest to you, was to the effect that the accused urged Darren Powell not to personally kidnap Jacob Tarrant but to arrange for a third party to do so. That is of course if you accept the evidence which has been led by the Crown, but as I have said, it does not appear to me to be any part of the Crown’s case that the accused intentionally urged Darren Powell personally to undertake either of the kidnappings that are referred to in counts 4 and 5. As I said to you, the law in this Territory is that a person who procures the commission of offence is taken to have committed the offence themselves.
The Crown case is that the accused urged Darren Powell to procure a third party to kidnap Jacob Tarrant and before you can convict the accused of this offence you must be satisfied beyond reasonable doubt that the accused intentionally urged Darren Powell to procure a third party to kidnap Jacob Tarrant and that he did so intending that Jacob Tarrant should be kidnapped. A person kidnaps another if he leaves, takes away, entices away or detains another without their consent for the purpose of obtaining an advantage to any person.
Mr Holliday did not take issue with this aspect of the summing up or seek any redirection.
It no doubt would have been preferable for the Crown to have framed the incitement counts in the indictment in the same way the counts were ultimately put to the jury. They should have referred to s 45 of the Criminal Code and made it clear that the allegation was that Mr Holliday urged Mr Powell to procure someone else to kidnap the witnesses. Nevertheless, as already indicated, Mr Holliday did not object to or raise any complaint about the way the indictment was framed. He was plainly aware of the way the Crown put its case against him. The incitement counts were not defective because they did not include any of the words in s 45: cf. R v Lewis (1985) 18 A Crim R 243; Henty v Bainbridge-Hawker (1963) 36 ALJR 354.
The only question, then, is whether the offence of inciting someone to procure a third person to commit an offence is an offence known to the law. Before addressing that question, three additional matters should be noted.
First, Mr Holliday’s notice of appeal included an “unsafe and unsatisfactory” ground in respect of the incitement counts. That was apparently an attempt to engage the appeal ground in s 37O(2)(a) of the Supreme Court Act1933 (ACT), which provides that an appeal must be allowed if the Court of Appeal considers that a jury verdict “is unreasonable, or cannot be supported, having regard to the evidence”. In any event, that ground of appeal was withdrawn. The only ground that was ultimately pursued in relation to the incitement counts was that the trial judge should have “dismissed” the incitement counts as a matter of law because they were not offences known to the law.
Second, a good deal of the argument on appeal was ultimately taken up by the question whether Mr Holliday could or should have been charged with an offence of attempting to incite Mr Powell and whether that was an offence known to the law. That issue was first raised in Mr Holliday’s submissions before the trial judge. It was ventilated again in his written and oral submissions on appeal. Regrettably, the Crown took up the challenge and engaged in the debate. The question whether Mr Holliday could or should have been charged with attempting to incite Mr Powell was and is on any view a “red-herring” that served only to confuse and obscure the real argument below and on appeal. The fact is, Mr Holliday was not charged with the offence of attempting to incite Mr Powell. The Crown never put its case that way. That was not the way the trial judge put the matter to the jury. Whether that alternative may have been open to the Crown is entirely academic. The only issue is whether the charge that was put to the jury was an offence known to the law.
Third, with the greatest respect to counsel who appeared for the Crown and for the appellant, both before the trial judge and on appeal, their submissions in relation to the whether an offence of urging (inciting) the commission of an offence of, relevantly, procuring a third person to commit an offence is, or is not, an offence known to law lacked clarity, depth and research. None of the cases and commentary that ultimately shed some light on this issue were brought to the Court’s attention by the parties. Regrettably, the Court received little real assistance in resolving what was and is a difficult question of construction of the relevant provisions of the Criminal Code.
Mr Holliday’s contention was that there was no offence known to the law of urging or inciting someone to procure a third party to commit an offence. Whilst Mr Holliday’s argument focussed to a large extent on the situation where the third person did not ultimately commit a substantive offence, it necessarily followed from the way his argument was put that a person cannot be guilty of procuring a third party to commit an offence even if the substantive offence was ultimately committed.
The conclusion I have reached is that a person can be charged with an offence of incitement contrary to s 47 of the Criminal Code in circumstances where the person is alleged to have urged someone to do something which, if done, would result in that person being “taken to have committed an offence” by operation of s 45 of the Criminal Code. Thus, if a person urges someone to procure a third person to commit an offence (or otherwise aids, abets or counsels the third person to commit the offence), the person can be charged with inciting the commission of that offence. Mr Holliday’s contention that the offence of inciting someone to procure a third person to commit an offence is not an offence known to law is in my view wrong and should be rejected. I respectfully disagree with the Chief Justice’s conclusion to the contrary.
Importantly, however, in my opinion a person cannot be convicted of an offence of inciting contrary to s 47 in circumstances where the offence incited is alleged to be an offence of procuring (or aiding, abetting or counselling) a third person to commit an offence if, as events transpire, the third person does not ultimately commit the substantive offence. I will explain why that is so after I have addressed the broader question of whether the offence incited, for the purposes of s 47, can be an offence that is taken to be an offence by operation of s 45. Suffice it to say at this stage that the conclusion follows from the operation of s 47(5) of the Criminal Code, not on any limitation concerning what can and cannot be an offence incited for the purposes of s 47.
Mr Holliday’s argument that there is no offence known to the law of urging (inciting) a person to procure a third person to commit an offence hinged on the fact that, by reason of s 45(2)(a) and (3), a person can only be “taken to” have committed an offence if the person they procured to commit the offence goes ahead and commits the offence. It follows, in Mr Holliday’s submission, that s 45 only operates retrospectively: a substantive offence must be committed before the person who procured the offence can retrospectively be “taken to” have committed the offence. The result, so it was contended, is that if, at the time of the alleged urging or incitement, the principal or substantive offence had not been committed, the person who was procured cannot be taken to have committed an offence at that time and therefore there was or is no offence capable of being urged or incited.
Mr Holliday provided no authority in support of the proposition that s 45 only operates retrospectively. In any event, his argument based on that proposition misconceives both the offence of incitement pursuant to s 47 and the operation of the complicity provisions in s 45 of the Criminal Code.
Like the offence of attempt (s 44 of the Criminal Code) and conspiracy (s 48 of the Criminal Code) incitement is an inchoate crime; it does not need to be fully consummated before the criminal law takes cognisance of it: see Glanville Williams, Criminal Law: The General Part (Stevens & Sons, 2nd ed, 1961) 609–13, quoted in Gareth Griffith, ‘Sedition, Incitement and Vilification: Issues in the Current Debate’ (Research Paper No 1, Parliamentary Library, Parliament of New South Wales, 2006) 28. The offence is committed even if the urging or incitement had no effect on the person sought to be incited. It is committed whether the incitement or urging was adopted or rejected: Walsh v Sainsbury (1925) 36 CLR 464 at 476; R v Zhong (2003) 139 A Crim R 345 at [18]. Indeed, the offence is committed even if it was impossible to commit the offence incited: s 47(4) of the Criminal Code. Incitement is constituted by urging someone to do something which, if done, would be an offence, together with an intention that the offence be committed: as to the element of intention see s 47(2) of the Criminal Code. It is not necessary that the offence actually be committed, or even be capable of being committed. The person urged may reject or ignore the urging, or be incapable of doing the thing which would constitute the offence. It is unnecessary for the offence incited to be committed, or even be capable of being committed, at the time of the incitement.
Viewed in this way, there is no reason in principle why the offence incited cannot be an offence which is taken to be committed by reason of s 45 of the Criminal Code. If a person urges someone to procure a third party to commit an offence, the person has urged the commission of an offence: albeit one that is the product of a statutory deeming provision. If the person who was urged to do so (the person incited) in fact goes ahead and procures a third party to commit the offence, and the third party commits the offence, the person incited is taken to have committed that offence by reason of s 45. That offence is capable of being an offence incited for the purposes of s 47: it was an offence the commission of which was urged.
It is in my opinion immaterial that, at the time of the urging, no offence had actually been committed by the person incited or by the third person who was procured to commit the offence. Mr Holliday’s arguments to the contrary are inconsistent with the inchoate nature of the offence of incitement and with the terms of s 47(4). Putting aside, for the moment, the operation of s 47(5), if the offence of incitement can be committed even if it is impossible to commit the offence incited, why would it matter that, in the case of inciting someone to procure a third person to commit an offence, at the time of the urging the third person might not go ahead and commit the offence, with the result that the person urged or incited could not then be taken to have committed the offence? The effect of Mr Holliday’s contention is that that possibility would preclude the laying of an incitement charge, even in a case where the third person did ultimately go ahead and commit the substantive offence.
The question whether an offence committed by operation of s 45 can be an offence incited for the purposes of s 47 is ultimately a question of construction. Section 47 requires a person to urge the commission of “an offence”. Does the expression “an offence” in that context encompass or include “an offence” which is or may be taken to have been committed by operation of s 45? In my opinion it does.
There is nothing in s 47 or the other provisions in Pt 2.4 of the Criminal Code to support the proposition that an offence committed by reason of s 45 cannot be an offence incited for the purposes of s 47. Indeed, there are positive indications to the contrary. Subsection 47(6) of the Criminal Code provides that s 47 does not apply to an offence against s 44 (attempt), s 48 (conspiracy) and s 47 itself. Thus, there is no offence of inciting someone to commit another inchoate offence such as attempt, conspiracy or incitement itself. Unlike attempt, conspiracy and incitement, however, an offence that may be committed by reason of s 45 is not an inchoate offence. Subsection 47(6) does not provide that s 47 does not apply to an offence committed by reason of s 45, or that a person cannot commit an offence of inciting someone to aid, abet, counsel, or procure another person to commit an offence. The Act expressly deals with the types of offences that cannot be an offence for the purposes of the offence of incitement in s 47. It does not provide that an offence by operation of s 45 cannot be such an offence.
If a person is, by reason of s 45 of the Criminal Code, “taken to commit” an offence (the principal offence), the person is relevantly taken to have committed that offence for all purposes. Whether s 45 is characterised as a deeming provision, or a provision that extends criminal liability, or something else, the point remains that if someone aids, abets, counsels or procures the commission of an offence by someone else, they too have committed an offence. Criminal liability for the offence extends to the aider, abetter, counsellor or procurer. Section 45(6) refers to the person being found guilty of aiding, abetting, counselling or procuring the offence. I can see no reason in principle why such an offence cannot be an offence incited for the purposes of s 47 of the Criminal Code.
The Chief Justice has referred to a number of considerations that support a conclusion to the contrary. In my opinion the matters referred to by the Chief Justice do not support the contrary conclusion.
First, her Honour states that the Criminal Code provides that the discrete extension offences of attempt and incitement cannot attach to “another discrete extension offence”. This is presumably a reference to those provisions of the Criminal Code that provide that the inchoate offences of attempt and incitement cannot be committed in respect of other inchoate offences: s 44(10) in the case of attempt, and s 47(6) in the case of incitement. But an offence committed by reason of s 45 is not an inchoate offence. Her Honour considers that it would be a strange result if there is no offence of inciting to attempt, inciting to conspire or inciting to incite, but there is an offence of inciting another to be an accessory. That may explain why the express exclusions do not apply to an offence taken to be an offence by reason of s 45. I do not consider that it is a strange result that there is no offence of inciting someone to conspire with someone else to commit an offence (where both incitement and conspiracy are inchoate offences), but it is an offence to incite someone to procure a third person to commit an offence (where procuring the commission of an offence is not an inchoate offence).
Second, the Chief Justice points to the fact that if there is an offence of inciting someone to procure a third person to commit an offence, in circumstances where the substantive offence is not ultimately committed, it would follow that the person closer to the substantive offence (the person incited) could escape liability whereas the person further from the substantive offence (the inciter) would not. For the reasons I will come to, that circumstance cannot arise by reason of s 47(5) of the Criminal Code. In any event, I would not necessarily consider that to be a strange result. It would be no stranger than a case where the offence incited is impossible. In such a case the inciter can still be guilty of inciting, whereas the person incited would almost certainly escape liability. I would, however, consider it to be a very strange result indeed if a person who incited someone to procure a third person to commit an offence would escape liability even in circumstances where the person urged or incited successfully procured the third person to commit the substantive offence. That would be the result of the construction advanced by Mr Holliday.
Third, the Chief Justice refers to some commentary and recommendations referred to in the Gibbs Report (“Review of Commonwealth Criminal Law – Principles of Criminal Responsibility and Other Matters”, Interim Report July 1990). I do not think that commentary significantly assists in the construction of ss 45 and 47 of the Criminal Code. The Gibbs Report referred to the view of the United Kingdom Law Commission. As will be seen, the relevant statutory provisions in the United Kingdom are different in important respects to ss 45 and 47. The Gibbs Report recommended that “it should be made clear that it is an offence to incite a person to assist, encourage or procure another person to commit an offence”. If anything that suggests that the authors were of the view that it was an offence to incite someone to procure the commission of the offence, but in light of the contrary view taken in the United Kingdom, that position should be made clear. Whilst that recommendation was not apparently taken up, that may have been for any number of reasons, including that it was not considered that such a clarification was necessary. The passage extracted by the Chief Justice refers to a recommendation that was taken up, namely that there should be no offence of inciting to incite, inciting to conspire and inciting to attempt. The Committee did not decide that it should not be possible to be guilty of inciting someone to procure another person to commit an offence.
Fourth, the Chief Justice refers to the view of Stephen Odgers, the author of Principles of Federal Criminal Law (Lawbook, 3rd ed, 2015) on the question whether, in the context of similar provisions of the Commonwealth Criminal Code, it is possible to be guilty of conspiring to procure someone to commit an offence. Mr Odgers states that the “preferable view” is that s 11.2 (complicity and common purpose) and s 11.5 (conspiracy to commit an offence” “cannot be combined (that is, they are distinct extensions of criminal responsibility)”. I am, with respect, unable to see why the fact that incitement and conspiracy can both be labelled as “distinct extensions of criminal responsibility” assists in the construction of the provisions. That is particularly so where, as has already been pointed out, it is expressly provided that two inchoate offences cannot be “combined”, but the offence of aiding, abetting counselling and procuring an offence is not an inchoate offence. Complicity is a different type of extension of criminal liability.
Both Mr Odgers and the Chief Justice also rely on two cases in the United Kingdom that deal with the question of whether the statutory offence of conspiracy under the Criminal Law Act 1977 (UK) could committed in respect of conduct that amounted to aiding, abetting counselling and procuring the commission of an offence under s 8 of the Accessories and Abettors Act 1861. In R v Hollingshead [1985] AC 975, the Court of Appeal held (at 985) that “the plain meaning of the two sections when placed side by side is that a conspiracy to aid, abet, counsel or procure an offence is not itself an offence”. That was because the statutory offence of conspiracy required that the course of conduct agreed to would amount to an offence.
The decision of the Court of Appeal, however, turned to a large extent on the wording of s 8 of the Accessories and Abettors Act. That section provided that a person who aided, abetted, counselled or procured the commission of an offence was “liable to be tried, indicted and punished as a principal offender”. The Court of Appeal reasoned, in effect, that being liable to be tried, indicted and punished as a principal offender was different to being guilty of an offence.
In the House of Lords, Lord Roskill (with whom Lord Fraser of Tullybelton and Lord Diplock agreed) said only that it was not necessary to consider whether the Court of Appeal’s view was or was not correct (at 998).
The important point to note here is that the wording of s 8 of the Accessories and Abettors Act is substantially different to the wording of s 45 of the Criminal Code. To say that a person is “liable to be tried, indicted and punished as a principal offender” is in my view quite different to saying that a person is “taken to commit” the substantive offence. Unlike s 8 of the Accessories and Abbettors Act, the wording of s 45, in particular s 45(6), indicates that a person who is taken to commit an offence is, for all intents and purposes, guilty of an offence.
The Court of Appeal returned to the question in R v Kenning [2009] QB 221. By this time, the relevant statutory offence of conspiracy was in s 5 of the Criminal Attempts Act 1981, which relevantly provided as follows:
if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions ….(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement … he is guilty of conspiracy to commit the offence or offences in question. (Emphasis added)
The Court of Appeal concluded that a person could not be convicted of the offence in s 5 of the Criminal Attempts Act in respect of conduct that might amount to aiding and abetting an offence for the following reasons:
The course of conduct to which the would-be aiders and abettors agree will, ex hypothesi, involve their performing acts that are no more than accessory to the offence intended to be committed by the primary offender. If they do all those acts, they will not amount to an offence unless the primary offender commits the primary offence. There can be no certainty that he will do so. Thus, even if the aiders and abettors do all that they agree to do, their course of conduct will not necessarily amount to the commission of the offence. That result is not surprising. It would be odd if it was an offence to conspire to aid and abet, although not an offence to attempt to do so.
This reasoning does not apply to the statutory offences under s 45 and 47 of the Criminal Code. As has already been pointed, the wording of s 45 is different to the wording of the accessorial liability provision in the United Kingdom. More significantly, the wording of the statutory offence of conspiracy in the United Kingdom is materially different not only to the statutory offence of conspiracy in s 48 of the Criminal Code, but also the offence of incitement in s 47. The statutory offence of conspiracy in the United Kingdom requires proof that the acts that the accused agree to carry out would, if carried out, “necessarily” amount to the commission of an offence. In contrast, the offence of conspiracy under s 48 of Criminal Code can be committed even though it was impossible to commit the offence conspired. More importantly for present purposes, the offence of incitement under s 47 can be committed even though it was impossible to commit the offence incited.
In my view the United Kingdom authorities are of little, if any, assistance in resolving the question of construction of ss 45 and 47 of the Criminal Code.
It follows that, with respect, none of the reasons referred to by the Chief Justice in my opinion support the conclusion that the offence of incitement under s 47 of the Criminal Code cannot be committed where the alleged offence incited is taken to be an offence by reason of s 45 of the Criminal Code. As already indicated, the conclusion that I have reached is that, contrary to Mr Holiday’s submissions, the offence of inciting someone to procure a third person to commit an offence is an offence known to the law.
That, however, is not the end of the matter. Section 47(5) provides that “[a]ny defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence.” The question that arises is whether s 45(2)(a) and s 45(3), which together make it clear that a person is taken to have committed the (substantive) offence only if the other person (the person aided, abetted, counselled or procured) commits the offence, comprise a defence, limitation or qualifying provision. If so, that defence, limitation or qualifying provision will apply to the offence of incitement in relation to the offence. The result would be that, if the substantive offence was not ultimately committed, the person who did something to aid, abet, counsel or procure the commission of the substantive offence could not be taken to have committed the offence and the person who urged that conduct could not be convicted of incitement. The defence, limitation or qualifying provision in s 45(2)(a) and s 45(3) would apply to the incitement offence.
Section 47(5) of the Criminal Code, like the cognate provisions in the Commonwealth Criminal Code, is a somewhat unusual provision. There is not much authority in relation to it. In R v Onuorah (2009) 76 NSWLR 1 at 11, Hodgson JA (with whom McClellan CJ at CL, Howie, Hoeben and Fullerton JJ agreed) referred to a passage from a publication of the Commonwealth 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) at 243. That publication contained the following example, again in the context of s 11.1(6) of the Commonwealth Criminal Code.
The Commonwealth Customs Act provisions on narcotic drugs contain a similar, though more contentious example. There is no doubt that a person who packs a parcel of oregano in a hollow walking stick and brings it into Australia, in the mistaken belief that it is cannabis, is guilty of an attempt to import cannabis, a prohibited import; impossibility of success is no answer to a charge of attempted importation. Suppose, however, that this incompetent is charged with one of the offences of attempted possession of a prohibited drug contrary to s 233B(1). In each of these possession offences, conviction of the principal offence requires proof that the drug was ‘imported into Australia in contravention of this Act’. That limitation or qualification on liability for the principal offence should equally apply to the attempt so as to bar the possibility of conviction. The legislative rationale for the exception is the same, whether the attempt, or completed offence is in issue.
That example is very similar to the situation where a person is charged with inciting another person to procure a third person to commit an offence. The offence incited (procuring the commission of the principal offence) is subject to a limitation or qualification: the principal offence must be committed by the third person for the procurer to be liable for that offence. That limitation or qualification on liability for the offence incited should apply equally to the offence of incitement so as to bar the possibility of conviction for incitement if the principal offence is not committed.
In my opinion, that analysis applies to the facts and circumstances of Mr Holliday’s case in relation to the incitement counts. Mr Holliday was alleged to have urged or incited Mr Powell to procure a third person to commit the offence of kidnapping (the offence incited). A limitation or qualification on liability for the offence incited was not only that Mr Powell procured a third party to kidnap, but that the third party in fact committed that offence. That limitation or qualification applied in relation to Mr Holliday’s incitement offence. Because Mr Powell did not successfully procure anyone to kidnap, and nobody was kidnapped, not only did Mr Powell not commit an offence, but Mr Holliday also could not be convicted of inciting Mr Powell.
It should be noted that Hodgson JA appeared to express some doubt about the correctness of the example referred to in the publication. The doubt was whether the absence of an element of an offence could give rise to a “defence, limitation or qualifying provision” that applies to the offence by reason of s 11.1(6). His Honour expressed the opinion that “generally” the expressions “defence, limitation or qualifying provision” (in s 11.1(6) of the Commonwealth Criminal Code) “are apt to refer to matters extrinsic to the elements of the offence, rather than to the requirement on the prosecution to prove all the elements of the offence”. Even accepting the correctness of Hodgson JA’s opinion in that regard, it does not mean that s 45(2)(a) and s 45(3) cannot be seen as operating as a limitation or qualifying provision for the purposes of s 47(5) of the Criminal Code. Those provisions do not provide an element of the offence which is taken to be committed by reason of the operation of s 45(1) of the Criminal Code. Rather, they provide a limitation or qualification to the operation of s 45(1).
The Crown also contended that a provision is only a limitation or qualifying provision for the purposes of s 47(5) of the Criminal Code if the provision limits liability for the offence in question to a limited class of persons. That contention was based on another example given by Hodgson JA: the offence of unlawful abortion, which can only be committed by a limited class of persons (pregnant women). In support of its contention, the Crown gave a similar example: the offence of incest, which may only be committed by a limited class of persons (persons in a particular familial relationship). The Crown’s submission in that regard is rejected. There is no basis for restricting the operation to the broad words “limitation or qualifying provision” to one particular limiting circumstance. Nothing said by Hodgson JA in Onuorah suggested that his Honour intended to limit the operation of the words “limitation or qualifying provision” to the circumstance where only a limited class of persons can commit the relevant offence. He was simply providing another example of the operation of those words.
It follows from this analysis that the trial judge erred in not directing the jury to acquit Mr Holliday on the incitement counts, albeit not for the reasons advanced by Mr Holliday. In my opinion the trial judge was correct to reject Mr Holliday’s submission that the offence of inciting someone to procure a third person to kidnap was not an offence known to the law. His Honour should have found, however, albeit that this was not put to him, that it was not open to the jury to convict Mr Holliday because nobody had been kidnapped, therefore Mr Powell had not committed an offence and, by reason of s 47(6) of the Criminal Code, the limitation or qualification that applied to Mr Powell’s offence applied equally to the incitement offence with which Mr Holliday was charged.
The attempt to pervert the course of justice count
Mr Holliday’s notice of appeal originally included a ground that the attempt to pervert the course of justice conviction was unsafe and unsatisfactory. At the hearing, however, Mr Holliday abandoned that ground. The only ground of appeal pursued by Mr Holliday relating to his conviction for attempting to pervert the course of justice was that the trial judge erred in not dismissing that count. That ground is somewhat unusual given that Mr Holliday never applied for the attempt to pervert the course of justice count to be dismissed, or for a verdict of acquittal to be directed in relation to that count.
Mr Holliday’s argument in support of the proposition that the trial judge should have dismissed the attempt to pervert the course of justice count hinged on the way the Crown particularised the acts said to constitute Mr Holliday’s attempt. Mr Holliday contended that the acts that were said by the Crown to constitute Mr Holliday’s attempt were not capable of amounting to something more than “merely preparatory” for the purposes of s 44(2) of the Criminal Code. Mr Holliday submitted that the trial judge should have identified this defect in the particulars and dismissed the count, even though Mr Holliday did not make any “no-case” submission at the close of the Crown case.
Mr Holliday’s contentions and the appeal ground relating to the attempt to pervert the course of justice count have no merit and are rejected.
In the Crown case statement, the Crown particularised Mr Holliday’s conduct that was alleged to be more than merely preparatory as being the creation of an eight page document which appeared to contain instructions to the would-be kidnapper, including the script of the “stories” that each of the kidnapped witnesses were to be forced to give in relation to the retraction of their statements of evidence. The Crown alleged that Mr Holliday typed, printed and gave a draft of this document to Mr Powell. In doing so the Crown alleged that Mr Holliday engaged in conduct that was more than merely preparatory to the commission of the offence of perverting the course of justice.
In both his opening and closing addresses to the jury, the Crown prosecutor referred at length to this document and the evidence that the Crown relied on as proof that Mr Holliday created the document and gave it to Mr Powell with the intention that Mr Powell would provide it to the person or persons who would carry out the kidnappings. There could be little doubt that the Crown case was that Mr Holliday’s conduct in creating the document and providing it to Mr Powell was more than “merely preparatory” to the offence of pervert the course of justice.
Mr Holliday raised no complaint at trial about the way the Crown particularised the conduct he had engaged in. No complaint was made about the way the Crown put its case in either the opening or closing addresses. There was never any suggestion that Mr Holliday did not know the case he had to meet, or that the case as particularised by the Crown was incapable of establishing that the acts were more than merely preparatory. Mr Holliday did not make a no case application based on the way the Crown put its case in relation to the attempt to pervert the course of justice count.
In his summing up to the jury, the trial judge said the following concerning the conduct element of the attempt to pervert the course of justice count:
The Crown must prove beyond reasonable doubt that the accused, intending to pervert the course of justice, did some act towards committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime. Now, that may sound complicated, but you must understand that the law does not generally punish a criminal intention without any accompanying physical act. It’s not an offence, for example, to form the idea that you would like to rob a bank.
Nor does the law punish acts by a person that are done merely in preparation to committing a crime; for example, it’s not an attempt to commit a robbery merely if a person purchases a balaclava thinking that it might be used to rob a bank sometime in the future. If you are satisfied beyond reasonable doubt that the accused intended to commit the crime of perverting the course of justice, which in this case would involve being satisfied beyond a reasonable doubt that he intended that false evidence would be put before the court dealing with his criminal charges, he is not guilty of the crime of attempt unless he has with that intention committed an act that is more than mere preparation to commit the crime.
He must have actually embarked upon the commission of the crime that he intends to commit. If you find beyond reasonable doubt that the accused had the required intention and committed acts with that intention in mind, you must then determine whether the acts that you find the accused committed were merely preparatory acts towards committing the crime. If you form the view that they are preparatory acts, the accused is not guilty of the crime of attempt. If, however, the acts have gone further and are immediately connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, the accused may be found guilty of the charge of attempt.
In that regard, the acts which the crime relies upon are those of creating the documents in which it is suggested that the complainants Jacob Tarrant and Trent Jordan will be tap-recorded giving a false version of events and suggesting that that will then be placed before the court, so it is that act of preparing that document that the Crown relies upon as the act which is more that preparatory in terms of carrying out that offence of perverting the course of justice. I now turn to count 2.
Mr Holliday did not raise any complaint about his Honour’s directions or any other aspect of his summing up in relation to the attempt to pervert the course of justice count.
The conduct referred to by the Crown and the trial judge was capable of being conduct that was more than “merely preparatory” to the commission of the offence of perverting the course of justice. In his summing up, the trial judge used the expression “immediately connected” as a means of explaining or describing the element that the conduct be more than merely preparatory. That expression appears to have been derived from the judgment of Rothman J (with whom Hoeben CJ at CL agreed) in Inegbedion v R [2013] NSWCCA 291 at [17] in relation to the similar provision in s 11.1 of the Criminal Code 1995 (Cth). Another expression that has been used in the authorities to describe or explain the requirement that conduct be “more than merely preparatory” is “sufficiently proximate” to the intended commission of the crime: see Britten v Alpogut [1987] VR 929 at 935; Onuorah at 10 [30].
It is perhaps doubtful whether it is useful to put a gloss on the words used in s 44(2) of the Criminal Code. The words “merely preparatory” are ordinary English words that a jury could readily comprehend. It is perhaps not desirable, and probably not possible, to formulate a single test for determining when conduct may be more than merely preparatory. Much will depend on the nature and elements of the substantive offence in question and the facts and circumstances of the particular case. It is ultimately a question of fact for the jury. In the circumstances of Mr Holliday’s case, it is sufficient to say that, if the jury found that Mr Holliday drafted, typed and printed the letter containing the instruction and provided that letter to Mr Powell, it was at least open to the jury to find that those acts were more than merely preparatory to the offence of perverting the course of justice.
In those circumstances, there is no merit in Mr Holliday’s contention that there was some defect in the evidence that compelled the trial judge to direct an acquittal or otherwise dismiss this count. Nor is there any merit in Mr Holliday’s argument that the Crown did not properly particularise its case in relation to the acts alleged to be more than merely preparatory, or that the Crown case as put to the jury, or the trial judge’s summing up, did not reveal a case capable of satisfying that element.
Conclusion and Disposition
Mr Holliday’s conviction of inciting to commit kidnap should be set aside and a in lieu thereof a verdict of not guilty should be entered. Mr Holliday has not made out any ground of appeal in respect of his conviction for attempting to pervert the course of justice. His appeal in that regard should be dismissed.
I agree with the orders proposed by the Chief Justice.
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney. Associate: Date: 26 August 2016 |
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