Holliday v The Queen

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.