Holliday v The Queen

Case [2016] ACTCA 42


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
Criminal Attempts Act 1981 (UK), c 47,  s 5
Criminal Code 1983 (NT)
Criminal Code1995 (Cth) s 11.1
Criminal Code 2002 (ACT) pt 2.4, ss 44, 45, 45A, 46, 47, 48
Criminal Law Act 1977 (UK)

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
Inegbedion v The Queen [2013] NSWCCA 291
Osland v The Queen (1998) 197 CLR 316
R v Barlow (1997) 188 CLR 1
R v Hollinshead [1985] AC 975
R v Kenning [2009] QB 221
R v Lewis (1985) 18 A Crim R 243
R v LK (2010) 241 CLR 177
R v Onuorah (2009) 76 NSWLR 1
R v Rogerson (1992) 174 CLR 268
R v Zhong (2003) 139 A Crim R 345
Stuart v The Queen (1974) 134 CLR 426
Susakv The Queen (1999) 105 A Crim R 592
Walsh v Sainsbury (1925) 36 CLR 464

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)
Criminal Law Officers Committee of the Standing Committee of Attorneys-General, ‘Model Criminal Code – Chapter 2: General Principles of Criminal Responsibility’ (Final Report, Criminal Law Officers Committee, December 1992)
Explanatory Memorandum, Criminal Code 2002 (ACT)
Explanatory Memorandum, Criminal Code Bill 1994 (Cth)
Gareth Griffith, ‘Sedition, Incitement and Vilification: Issues in the Current Debate’ (Research Paper No 1, Parliamentary Library, Parliament of New South Wales, 2006)
Glanville Williams, Criminal Law: The General Part (Stevens & Sons, 2nd ed, 1961)
New South Wales Law Reform Commission, Complicity, Report No 129 (2010)
Peter Gillies, The Law of Criminal Complicity (Lawbook, 1980)

Stephen Odgers, Principles of Federal Criminal Law

Continue reading Holliday v The Queen

Sign in free to access the full text

Details
AGLC
Holliday v The Queen [2016] ACTCA 42
Case
[2016] ACTCA 42
Decision Date

CaseChat Overview and Summary

Holliday appealed to the Supreme Court of the Australian Capital Territory (Court of Appeal) against his conviction for inciting the commission of the offence of kidnapping and for attempting to pervert the course of justice. The central dispute concerned whether the appellant's conduct constituted the offences for which he was convicted, particularly in light of the statutory definitions of attempt and incitement under the *Criminal Code 2002* (ACT).

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.