Laura Hicks (a pseudonym) v Director of Public Prosecutions (No 2)

[2023] ACTCA 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Laura Hicks (a pseudonym) v DPP (No 2)
Citation:	[2023] ACTCA 34
Hearing Date:	16 August 2023
Decision Date:	28 August 2023
Before:	Baker, Taylor and Bromwich JJ
Decision:	(1)    Leave to appeal is granted; (2)    The appeal is dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – Application for leave to appeal interlocutory decision – demurrer to indictment – whether offence of incitement to procure where the offence incited is not carried out is an offence known to law STATUTES – STATUTORY INTERPRETATION – effect of ss 45 and 47 of the Criminal Code 2002 (ACT) – extrinsic material – where clear intention of Parliament to overcome the decision in Holliday v The Queen [2016] ACTCA 42 – whether legislative amendments achieved intended purpose – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT) Crimes Legislation Amendment Act 2018 (ACT)Criminal Code 2002 (ACT), ss 45, 47(1), 47(2) Legislation Act 2001 (ACT), ss 138, 139, 140, 141 Supreme Court Act 1933 (ACT)
Cases Cited:	Attorney-General (SA) v Woods-Pierce [2021] SASCA 112; 140 SASR 45 Director of Public Prosecutions v Hicks (a pseudonym) (No 3) [2023] ACTSC 56 Hicks (a pseudonym) v Director of Public Prosecutions [2023] ACTCA 17 Holliday v the Queen [2016] ACTCA 42 Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 2; 271 CLR 495 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Holliday [2017] HCA 35; 260 CLR 650 R v Holliday [2015] ACTSC 22 R v JS [2007] NSWCCA 272; 230 FLR 276 Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation [1980] FCA 45; 29 ALR 33 Ross v the Queen [1979] HCA 29; 141 CLR 432 Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 4; 106 NSWLR 1 SZTAL v Minister [2017] HCA 34; 252 CLR 543 Walsh v Sainsbury [1925] HCA 2; 36 CLR 464 Xiao v R [2018] NSWCCA 4; 96 NSWLR 1
Texts Cited:	Explanatory Statement, Criminal Code 2002 (ACT) Explanatory Statement, Criminal Code Bill 1994 (Cth) Presentation Speech, Crimes Legislation Amendment Bill 2017 (No 2) (ACT)
Parties:	Laura Hicks (a pseudonym) ( Applicant) Director of Public Prosecutions ( Respondent)
Representation:	Counsel J White SC ( Applicant) K Lee ( Respondent)
Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions
File Number:	ACTCA 12 of 2023
Decision under appeal:	Court/Tribunal:	ACT Supreme Court
	Before:	McCallum CJ
	Date of Decision:	23 March 2023
	Case Title:	Director of Public Prosecutions v Hicks (a pseudonym) (No 3)
	Citation:	[2023] ACTSC 56

THE COURT:

Introduction

1․The applicant seeks leave to appeal against a decision of McCallum CJ, which refused her application for two counts of inciting another to procure the offence of murder to be struck from her indictment.

2․The prosecution case is that the applicant requested an unknown person on a ‘murder for hire’ website on the dark web to arrange to have her parents killed. It is alleged that the applicant posted on a forum on the site that she was willing to pay $20,000 for the hire of a person to murder her parents, preferably making the murder look like it was an accident. The prosecution further alleges that the applicant came to an agreement with another user of the website, who appeared to be the website administrator, to pay the equivalent of $10,000 AUD upfront in bitcoin for the murders. It is alleged that the applicant then paid the equivalent of approximately $7,500 AUD in bitcoin and told the unknown person that she was “trying to gain access to the remaining funds”.

3․The murders were not carried out. The applicant’s parents are still alive, and there is no evidence that the unknown person that the applicant contacted on the dark web ever took any action to have the applicant’s parents killed.

4․The applicant has been charged with five offences arising out of these events. Counts 1 and 2 each allege that the applicant incited another to procure the offence of murder, contrary to s 47 of the Criminal Code 2002 (ACT). The remaining offences charged on the indictment (theft and money laundering) are not relevant to the proceedings before this Court.

5․By an application dated 21 March 2023, the applicant demurred to the indictment with respect to Counts 1 and 2 and sought orders striking these counts from the indictment. The applicant contended that the offence of incitement to procure, where the substantive offence sought to be procured is not carried out, is not known to law.

6․The prosecution resisted the demurrer. The prosecution acknowledged that in The Queen v Holliday [2017] HCA 35; 260 CLR 650 (“Holliday (HCA)”), the High Court held that the offence of incitement to procure was not known to law. However, the prosecution submitted that this position changed in 2018, following the amendment of s 47 of the Criminal Code in response to the Holliday (HCA) decision. The prosecution submitted that following those amendments, an offence against s 47(1) of the Criminal Code may be committed via s 47(2) where a person incites another person to commit an offence, even where that offence is not carried out.

7․The demurrer application came before McCallum CJ on 22 March 2023, which was shortly before the proceedings were listed for trial. On the following day, McCallum CJ dismissed the applicant’s demurrer and ordered the applicant to answer over to the charges: Director of Public Prosecutions v Hicks (a pseudonym) (No 3) [2023] ACTSC 56 (“the primary judgment”). The applicant seeks leave to appeal from this decision.

8․On 5 April 2023, Baker J stood over the question of leave to be determined with the substantive appeal at a hearing of the Court of Appeal comprised of three judges: Hicks (a pseudonym) v Director of Public Prosecutions [2023] ACTCA 17 at [3] and [20].

9․The issue that arises for determination in this application is whether a person can be found guilty under s 47 of the Criminal Code of inciting a person to procure an offence where the procured offence is not carried out. For the reasons set out below, we conclude that McCallum CJ correctly answered this question in the affirmative.

Relevant legislation

Section 47 of the Criminal Code

10․Section 47 of the Criminal Code provides as follows:

47 Incitement

(1)If a person urges the commission of an offence (the offence incited), the person commits the offence of incitement.

Maximum penalty: …

(2)A person also commits the offence of incitement if the person urges another person to aid, abet, counsel, procure, be knowingly concerned in or a party to, the commission of an offence (the offence incited) by someone else.

(3)However, the person commits the offence of incitement only if the person intends that the offence incited be committed.

(4)Despite subsection (3), any special liability provisions that apply to an offence apply also to the offence of incitement to commit the offence.

(5)A person may be found guilty of the offence of incitement—

(a)even if it was impossible to commit the offence incited; and

(b)whether or not the offence incited was committed.

(6)Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence.

(7)….

11․Section 45 of the Criminal Code further provides:

45 Complicity 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

(b)when carrying out the conduct, the person either—

(i) intends the conduct to aid, abet, counsel, procure, or result in the person being knowingly concerned in or a party to, the commission of any offence (including its fault elements) of the type committed by the other person; or

(ii) intends the conduct to aid, abet, counsel, procure, or result in the person being knowingly concerned in or a party to, the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person.

(3)To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.

(4)Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling, procuring, or being knowingly concerned in or a party to, the commission of the offence.

(5)A person must not be found guilty of aiding, abetting, counselling, procuring, or being knowingly concerned in or a party to, the commission of an offence if, before the offence was committed, the person—

(a)ended the person’s involvement; and

(b)took all reasonable steps to prevent the commission of 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.

(7)To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.

(8)If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.

Legislative history

12․Before turning to the parties’ competing constructions of s 47, it is convenient to briefly set out the relevant legislative history of this provision, including the respective decisions of this Court and the High Court in Holliday.

The decision of the Court of Appeal and the High Court in Holliday

13․The Crown case in Holliday was similar to the case alleged in the present proceedings. The Crown alleged that whilst Mr Holliday was in custody pending sentence for child sex offences,[1] he offered another inmate, Mr Powell, a reward for organising people outside of prison to kidnap two of the witnesses, force them to make video-recorded statements designed to exculpate him of the offences, and then kill them. Mr Powell did not arrange the kidnapping or murder of the two witnesses; instead, he reported Mr Holliday to police.

[1] The High Court decision in Holliday records that Mr Holliday was in custody pending sentence for the offences: Holliday (HCA) at [1]. However, the reasons of Murrell CJ and Wigney J in the Court of Appeal decision record that Mr Holliday was in custody pending trial for those offences: Holliday (CA) at [1] (Murrell CJ) and [66] (Wigney J). The High Court’s decision is consistent with the reasons for sentence of the trial judge in Holliday at first instance, which also records that Mr Holliday was in custody pending sentence: R v Holliday [2015] ACTSC 222 at [3]; and with Refshauge J in the Court of Appeal decision: Holliday (CA) at [56].

14․Mr Holliday was tried on indictment before a jury in the ACT Supreme Court on five counts, two of which alleged that he incited Mr Powell to procure a kidnapping contrary to s 47(1) of the Criminal Code. Mr Holliday was convicted of all counts.

15․At the time that Mr Holliday was convicted, s 47 was in different terms to its present form. In particular, s 47 of the Criminal Code did not then contain equivalent provisions to the current ss 47(2) and 47(5)(b). Section 47(2) extends the s 47(1) offence to persons who urge another person to, inter alia, procure the commission of an offence. Section 47(5)(b) clarifies that a person may be found guilty of incitement “whether or not the offence incited was committed”.

16․In the absence of an equivalent to the present s 47(2), the prosecution relied on s 45 of the Criminal Code to establish liability. Specifically, the prosecution contended that the “offence incited” under s 47 was the offence of kidnapping, which s 45 of the Criminal Code deems to have been committed where a person “procures” such an offence.

17․Mr Holliday made a ‘no case’ submission at the conclusion of the prosecution case, contending that the offence with which he was charged was not known to law. The trial judge rejected this application, and Mr Holliday was subsequently convicted by the jury of all charges.

18․Mr Holliday appealed his convictions to this Court. The Court of Appeal (Murrell CJ, Refshauge and Wigney JJ) unanimously allowed Mr Holliday’s appeal with respect to his conviction for inciting Mr Powell to procure a kidnapping; but their Honours’ reasoning to this result differed: Holliday v The Queen [2016] ACTCA 42 (“Holliday (CA)”).

19․Chief Justice Murrell held that there was no offence of incitement to procure known to law, at least where the substantive offence is not committed: Holliday (CA) at [20]. In so finding, her Honour rejected the contention that an “offence committed” under s 47(1) could encompass derivative liability under s 45: Holliday (CA) at [27] – [35].

20․In contrast, Wigney J considered that there was “no reason in principle” why the offence incited under s 47 cannot be an offence which is deemed to have been committed by reason of s 45 of the Criminal Code: Holliday (CA) at [90], [94] and [108]. However, as Wigney J observed, this was “not the end of the matter”: Holliday(CA) at [109]. His Honour noted that s 47(5) of the Criminal Code applies “[a]ny defence, procedure, limitation or qualifying provision” that applies to the substantive offence to the offence of incitement. His Honour considered that s 45(3) of the Criminal Code, which requires the substantive offence being procured to be committed before liability can be extended to the procurer, was such a limiting or qualifying provision. His Honour concluded that this limitation or qualification on liability applied to the offence of incitement “so as to bar the possibility of conviction for incitement if the principal offence was not committed”: Holliday (CA) at [110]

21․In a concurring judgment, Refshauge J agreed with Wigney J’s reasons for upholding the appeal. His Honour noted that Wigney J had held 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”, whereas Murrell CJ had held that no such offence is known to law: Holliday (CA) at [64]. Justice Refshauge did not consider that it was necessary for the disposition of the appeal to resolve that issue and declined to do so: Holliday (CA) at [65].

22․The Director of Public Prosecutions appealed the Court of Appeal’s decision to the High Court. The High Court (Kiefel CJ, Bell and Gordon JJ, Gageler and Nettle JJ agreeing) unanimously dismissed the Director’s appeal, holding that there was no offence in the Criminal Code, as it then stood, of ‘incitement to procure’: Holliday (HCA) at [8].

23․In so holding, the joint judgment of Kiefel CJ, Bell and Gordon JJ (“the joint judgment”) held that s 45 of the Criminal Code does not create a discrete offence to which s 47 could attach: Holliday (HCA) at [42]. In these circumstances, it was unnecessary for their Honours to consider whether ss 45(2)(a) and (3) were limitations or qualifying provisions within the meaning of s 47(5) of the Criminal Code: Holliday (HCA) at [64].

24․Justice Nettle similarly concluded that s 45 did not create an offence of procuring the commission of an offence by a third person: Holliday (HCA) at [72] and [81]. Like the joint judgment, having so found, Nettle J did not consider it necessary to consider the effect of s 47(5): Holliday (HCA) at [88].

25․Justice Gageler agreed with Kiefel CJ, Bell and Gordon JJ that the appeal must be dismissed because s 47(1) was not engaged: Holliday (HCA) at [66]. However, unlike the joint judgment and Nettle J, his Honour placed emphasis on the limitation in s 45(3), noting that “unless that other person actually went on to kidnap a witness, Mr Powell could not have been taken by s 45(1) to have committed that offence by procuring it”: Holliday (HCA) at [67].

26․In dismissing the appeal, the High Court acknowledged that Mr Holliday’s conduct was serious, and that there were policy reasons why it might be thought that there should be an offence of incitement to procure. However, the joint judgment emphasised that this was a matter for the legislature, observing (at [8]):

If the legislature wishes incitement to procure to be a discrete offence under the Criminal Code… then that is a matter for the legislature to consider; and it is for the legislature, if appropriate, to expressly provide for that offence.

The 2018 amendments

27․The High Court’s invitation was acted on by the legislature the following year when the ACT Parliament enacted the Crimes Legislation Amendment Act 2018 (ACT) (“the 2018 Amending Act”), which inserted ss 47(1A) and 47(4) into the Criminal Code as follows:

Incitement

New section 47(1A)

Insert

(1A) A person also commits the offence of incitement if the person urges another person to aid, abet, counsel, procure, be knowingly concerned in or a party to, the commission of an offence (the offence incited) by someone else.

18 Section 47(4)

substitute

(4)A person may be found guilty of the offence of incitement—

(a)even if it was impossible to commit the offence incited; an

(b)whether or not the offence incited was committed.

28․Sections 47(1A) and (4) have since been renumbered as ss 47(2) and (5) of the Criminal Code. The terms of each section have not otherwise changed since they were inserted.

29․The 2018 Amending Act did not make any amendments to s 45 of the Criminal Code. On its face, s 47(2) is a self-contained provision which extends liability under s 47(1). Section 47(1) continues to create the substantive offence of incitement, and s 47(2) provides alternative ways by which that substantive offence may be committed. A live question is whether text, context, or legislative history should result in the provision being read differently and in particular, whether any resort to s 45 is even necessary, let alone compelled.

Extrinsic material

30․The Presentation Speech and Explanatory Statement for the 2018 Amending Act attached to the Crimes Legislation Amendment Bill 2017 (No 2) (ACT). The Presentation Speech for the Crimes Legislation Amendment Bill 2017 (No 2) was read in the Legislative Assembly for the ACT on Thursday 30 November 2017 (page 5390):

The last set of amendments in this bill are direct responses to court outcomes. An important part of this bill, and an important role of the Attorney-General, is to respond to judicial decisions. The High Court recently ruled that an attempted kidnapping organised out of the Alexander Maconochie Centre was technically not illegal because the offender attempted to hire another person to undertake the kidnapping. That person did not ultimately go through with the crime, but this is clearly behaviour that the community expects to be criminalised. That case, Holliday v the Queen, highlighted a clear gap in the ACT’s Criminal Code. The bill amends the Criminal Code to correct the issue.

31․The Explanatory Statement for the 2018 Amending Act states the following in relation to these amendments:

Clause 17 – Incitement, New section 47(1A)

This clause amends section 47 of the Criminal Code to insert new s47(1A) to provide that a person can incite another to commit an offence if they urge another person to aid, abet, counsel, procure, be knowingly concerned in or a party to, the commission of an offence by someone else.

This amendment corrects the issue identified in The Queen v Holliday [2017] HCA (unreported, 6 September 2017) (Holliday) where the High Court dismissed a prosecution appeal from a decision of the ACT Court of Appeal. The principal issue was whether Holliday could be convicted of an offence of inciting the commission of an offence by urging another inmate, Powell, to procure a third person to commit the substantive offence of kidnapping. The Court held that, at least in circumstances where no offence of kidnapping was committed, Holliday could not be convicted of urging Powell to commit the offence of kidnapping contrary to section 47 of the Criminal Code. A majority of the High Court reached that conclusion on the basis that in order for a person to be convicted of an offence of incitement under section 47 of the Criminal Code, that person must have urged the commission of a discrete offence. The majority concluded that procuring the commission of an offence is not a discrete offence under the Criminal Code.

This clause makes it clear that the offence incited referred to in section 47(1) includes an offence a person is taken to have committed pursuant to section 45 (complicity and common purpose) of the Criminal Code.

This amendment corrects the issue identified in Holliday. The gap exposed compromises the ability to prosecute crimes where the instigator takes care to distance him or herself from the criminal activity, as well as crimes proposed at the top levels of criminal organisations utilising more sophisticated means.  

Clause 18 – Section 47(4)

This clause amends section 47(4) to include a provision to the effect that that a person may be found guilty of incitement whether or not the offence incited was committed.

This clause is inserted to remove any doubt that a person may be found guilty of the offence of incitement even though the offence incited was an offence a person is taken to have committed pursuant to section 45, and the offence incited was not committed.

The parties’ submissions

32․The parties provided detailed and helpful written and oral submissions to the Court. For present purposes, their positions can be briefly summarised.

33․Shortly stated, the applicant contends that the amendments to s 47 only partially rectified the issues identified in Holliday (HCA). The applicant acknowledges that, following the 2018 amendments to s 47, the offence of inciting to procure is now an offence known to law, made possible by s 47(2). However, the applicant submits that establishing liability for the offence extended by s 47(2) requires recourse to s 45 of the Criminal Code. As neither s 47(6) nor s 45(3) were affected by the 2018 amendments, where the offence alleged is an incitement to procure, s 47(6) continues to apply the limitation or qualification contained in s 45(3). That is, s 47(6), applying s 45(3), requires that the procured offence be committed before the procurer can be deemed liable under s 45 for the offence of incitement under s 47(1). Accordingly, the applicant contends that the offence of inciting to procure under s 47 cannot be established where the substantive offence procured is not in fact committed.

34․In response, the prosecution contends that s 47 fully rectified the gap identified by the High Court in Holliday (HCA). The prosecution submits that in enacting s 47(2), the legislature “intended to do (and did) that which the plurality in R v Holliday alluded to: they created a discrete offence of incitement to procure.” The prosecution submits that this discrete, inchoate offence is conceptually and procedurally distinct from derivative offences under s 45, and that the route to liability under s 47(2) does not pass through s 45. As the s 47(2) offence is a ‘stand-alone’ provision, which does not depend on s 45 to establish liability, the qualifications and limitations in s 45 have no application. Implicit in this submission is that s 47(6) (“Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence”) will not pick up s 45(3), given that s 45 is not an offence to which s 47 applies; but s 47(6) will, of course, pick up other relevant defences, limitations and qualifications in respect of the substantive offences to which s 47 does apply. In construing the amendments, the prosecution also emphasises the importance of s 47(5)(b), which clarifies that the offence of incitement is committed “whether or not the offence incited was committed”.

Determination

35․The applicant contends that the amendment of s 47 “does not alter the relationship that s 45 has to s 47” and that “section 45 is still the route by which accessorial liability travels”. As outlined above, the prosecution disagrees with this proposition. The prosecution submits that s 47 is a stand-alone offence, to which s 45 has no application. For the reasons that follow, the prosecution’s submission should be accepted.

36․The proper construction of s 47(2) must be determined by reference to principles of statutory interpretation. As McCallum CJ stated in the primary judgment, this requires consideration of the text, purpose, context and history of the provision: Hicks (No 3) at [15], citing SZTAL v Minister [2017] HCA 34; 262 CLR 453 at 463; see also ss 139, 140 and 141 of the Legislation Act 2001 (ACT).

37․Commencing with the text, s 47(2) provides that a person “also commits the offence of incitement” if the person, inter alia, “procures” the commission of an offence by a third party. As McCallum CJ correctly concluded, on a plain reading of s 47(2), the “incited offence” (that is, the offence allegedly procured) in the present case is the substantive offence of murder: Hicks (No 3) at [19]; see similarly Holliday (HCA) at [64]. The clear words of s 47(2) impose liability without recourse to s 45.

38․As noted at [35] above, the appellant asserts that the amendment of s 47 “does not alter the relationship that s 45 has to s 47”. A fundamental difficulty with this proposition is that, in Holliday (HCA), the High Court held that s 45 had no relationship to s 47: Holliday (HCA) at [42] (“there is no offence under s 45 to which s 47 can attach”). In order to succeed, the applicant must demonstrate that the amendments to s 47 introduced a relationship between the two provisions that did not previously exist.

39․The applicant correctly observed that s 47(2) does not strictly create a new offence. Rather, s 47(2) expands the offence created by s 47(1) to include the procurement of an offence by another person. However, recognition that s 47(2) does not strictly create a new offence does not assist the applicant. The text of s 47(2) expands the s 47(1) offence. It does not contain any indication that the pathway to liability under s 47(2) should be via s 45. Indeed, apart from the common use of the word “procure” in each section, there is no textual link at all between s 47 and s 45. We do not consider that the use of the word “procure” is a textual indication that Parliament intended that liability under s 47(2) be conditioned upon the criteria in s 45 being satisfied.

40․In this respect, it is important to note that the gravamen of the offence under s 47(1), which is extended by s 47(2), is the conduct of a person in ‘urging’ the commission of an offence. As McCallum CJ correctly concluded, s 47(1) as extended by s 47(2) is an inchoate offence, which may be committed regardless of whether or not the offence incited in fact occurs: Holliday (CA) at [15].

41․There is no textual support for the proposition that in enacting s 47(2), Parliament intended to create two types of incitement offences within s 47, one which requires the substantive offence to be committed and one which does not. Indeed, the drafting mechanism adopted – creating an extension of the s 47(1) liability – is a powerful indication that Parliament did not so intend.

42․The applicant’s contention that s 47(2) of the Criminal Code requires that liability first be established under s 45 is also contrary to the clear words of s 47(5)(b), which state that a person may be found guilty of incitement “whether or not the offence incited was committed”. The applicant’s contention that s 47(5)(b) only has application to offending which does not fall within s 47(2) contradicts a plain reading of the provision. Section 47(5)(b) is expressed as applying to all offences of incitement. There is no textual basis to read s 47(5)(b) as applying only to conduct which is criminalised by s 47(1). The fact that s 47(5)(b) was enacted in the same amending legislation as s 47(2) provides further confirmation that in enacting s 47(2), Parliament did not intend to interfere with the inchoate nature of the offence created by s 47.

43․In these circumstances, the fact that the legislature left s 45 intact does not support the applicant’s construction of s 47(2). It was not necessary for the legislature to amend s 45 for the simple reason that it is not engaged with respect to offending within s 47(2).

44․Nor does the fact that the legislature left s 47(6) intact provide support for the applicant’s construction. As noted at [33] above, s 47(6) continues to have application with respect to the substantive offences to which s 47 applies. For example, the ‘claim of right defence' in s 410 of the Criminal Code may be applied by s 47(6) to an allegation that person induced (or induced the procurement of) a property offence within Part 4.1 of the Criminal Code. The property offence is “the offence incited” within the meaning of s 47(1) and 47(2), which is the “offence” referred to in s 47(6). In contrast, s 47(6) does not pick up the limitation in s 45(2), because s 45 is not engaged by the provision.

45․Nor is there any contextual or purposive reason to construe s 47(2) as conditioned upon the establishment of liability under s 45. Section 45 is a derivative liability provision, which has the effect of deeming a person to be responsible for an offence where it is proved that the person engaged in a specified form of complicity (such as procurement). Where procurement is the form of complicity alleged, the qualifications to such liability in s 45 include:

(i)The person’s conduct must in fact procure the commission of the offence by the other person (s 45(2)(a));

(ii)When carrying out the conduct, the person must either intend to procure the commission of an offence (including its fault element) of the type committed by the other person or intend to procure the commission of an offence by the other person and be reckless about the commission of the offence (including its fault elements) in fact committed by the other person (s 45(2)(b));

(iii)The offence procured must in fact be committed (s 45(3)); and

(iv)The person will not be guilty of procuring if, before the offence was committed, the person ended their involvement, and took all relevant steps to prevent the commission of the offence (s 45(5)).

46․None of the above qualifications are apposite to the operation of s 47(2). Indeed, there would be considerable practical difficulties in applying any of these qualifications to an offence under s 47(2). In particular, the application of the qualifications set out in (i), (iii) and (iv) to an offence of inciting a procurement would be directly inconsistent with s 47(5)(b), which provides that a person may be found guilty of an incitement “whether or not the offence incited was committed”. The application of (iv) to the offending within s 47(2) would also constitute a significant departure from incitement offences generally, in which withdrawal is relevant to punishment, but not to liability: Walsh v Sainsbury [1925] HCA 2; 36 CLR 464 at 476.

47․The application of the qualification in (ii) above to an offence under s 47(2) would also occasion difficulty and potential confusion. Section 45(2)(b) contains the relevant fault element for the offence of procuring. But that element is directed at the person who performs the procuring. It does not address the fault element of the person who incites the procurement, which is the subject of s 47(2).

48․The high point of the applicant’s contention that s 47(2) liability must travel through s 45 is the Explanatory Statement to the 2018Amending Act. As outlined above, the Explanatory Statement made the following comments in respect of the enactment of s 47(1A) (now s 47(2)):

This clause makes it clear that the offence incited referred to in section 47(1) includes an offence a person is taken to have committed pursuant to section 45 (complicity and common purpose) of the Criminal Code.

49․In respect of s 47(5)(b), the Explanatory Statement further stated:

This clause is inserted to remove any doubt that a person may be found guilty of the offence of incitement even though the offence incited was an offence a person is taken to have committed pursuant to section 45, and the offence incited was not committed.

50․These statements provide some support for the applicant’s contention that the “incited offence” in s 47(2) should be read as a reference to a substantive offence which the person is taken to have committed pursuant to s 45.

51․However, the Explanatory Statement must be viewed with caution insofar as it is sought to be used in support of the applicant’s contention that liability under s 47(2) must first travel through s 45.

52․As the preamble to the Explanatory Statement directs, the Statement “must be read in conjunction with the Bill…”:

It is not, and is not meant to be, a comprehensive description of the amendments. What is said about a provision is not to be taken as an authoritative guide to the meaning of a provision, this being a task for the courts.

53․It must also be borne in mind that “the quality and extent of the assistance extrinsic materials provide in fixing the meaning of statutory text is not uniform”: Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 2; 271 CLR 495 at [67]. Rather, as the High Court continued in Mondelez:

Lacking both the force of law and the precision of parliamentary drafting, however, an explanatory memorandum cannot be taken to be an infallible and exhaustive guide to the legal operation of a provision. Notoriously, explanatory memoranda sometimes get the law wrong.

54․In assessing the weight to be given to the Explanatory Statement in determining the meaning of s 47(2), we have taken into account the matters set out in s 141(2) of the Legislation Act and particularly s 141(2)(a), which requires the Court to consider:

the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole.

55․In our view, the apparent assumption of the drafter of the Explanatory Statement that the “offence incited” in s 47(2) is a reference to offences that are “taken to have been committed” under s 45 is contrary to the text of s 47 when read in the context of the Act as a whole.

56․Although the assumption in the Explanatory Statement concerning the pathway to liability under s 47(2) should be viewed with caution, greater weight can and should be placed on the statements in the extrinsic materials as to the purpose of the amendments, particularly where, as here, that purpose is clearly and unequivocally stated.

57․The Explanatory Statement and the Presentation Speech each record that the 2018 amendments to s 47 were a response to the High Court’s decision in Holliday. The purpose of the amendments was clearly set out in the Presentation Speech, in which the Attorney-General explained:

The High Court recently ruled that an attempted kidnapping organised out of the Alexander Maconochie Centre was technically not illegal because the offender attempted to hire another person to undertake the kidnapping. That person did not ultimately go through with the crime, but this is clearly behaviour that the community expects to be criminalised. That case, Holliday v the Queen, highlighted a clear gap in the ACT’S Criminal Code. The bill amends the Criminal Code to correct the issue. (Legislative Assembly for the ACT: 2017 Week 14 Hansard, Thursday 30 November 2017, page 5390, emphasis added).

58․It is a fundamental principle of statutory construction that an interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: s 140 of the Legislation Act 2001 (ACT).

59․Mr White SC, who appeared for the applicant, acknowledged this principle. As outlined above, he contended that the ‘issue’ which was addressed by the 2018 amendments was the finding of the High Court that incitement to procure is not an offence that is known to law.

60․With respect to the able submissions of Mr White SC, this construction of the purpose of the 2018 amendments does not pay proper regard to the purpose of Parliament as plainly expressed in the extrinsic materials.

61․There is no question that the Court may consider the extrinsic materials in ascertaining the legislature’s purpose in enacting the amendments: s 138 and 142 of the Legislation Act. It is often difficult to determine Parliament’s intent from such materials: Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 4; 106 NSWLR 1 at [39] (Bell P, Leeming JA and Emerson AJA agreeing). Such a difficulty does not arise in the present case. As set out above, Parliament’s concern was, to put it bluntly, that a person (Mr Holliday) who had procured another person to undertake a kidnapping had escaped criminal liability because the kidnapping had not in fact occurred. It was this “clear gap” in the Criminal Code which the legislature intended to fill.

62․Parliament was not immediately concerned with the liability of persons who incited a successful procurement. That was not the situation in Holliday. Indeed, as the joint judgment of the High Court in Holliday observed, where the substantive offence procured comes to fruition, s 45 may well operate directly to impose liability, circumventing the need for any reliance on s 47 at all: Holliday (HCA) at [45].

63․Mr White SC fairly acknowledged that on the applicant’s construction on s 47(2), the facts in Holliday would not be decided any differently. Such a construction would be contrary to the clearly expressed purpose of Parliament in enacting s 47(2).

64․Nor does the principle of legality assist the applicant. There may be a question as to the weight to be afforded to the principle of legality when construing a criminal code. As Spigelman CJ observed in R v JS [2007] NSWCCA 272; 230 FLR 276 at [145], “fundamental aspects of the law have been altered by the Criminal Code in substantial and indeed critical matters”. In construing code provisions, there can be no general assumption that Parliament did not intend to interfere with common law concepts.

65․Further, contrary to the applicant’s submission, s 47(2) does not “reverse” “fundamental principles” of accessorial liability. Foundational to the applicant’s argument is the assumption that because s 47(2) relates to conduct such as aiding and abetting, counselling, and procuring, s 47(2) must be concerned with accessorial liability. This assumption should not be accepted. Accessorial liability is not concerned with the form of the conduct alleged. Rather, as McCallum CJ correctly observed, accessorial liability is concerned with a mode of proof: Hicks (No 3) at [23], citing Holliday(HCA) at [32], [34] and [43]. For the reasons outlined at [39] above, s 47 creates a stand-alone inchoate offence. No part of s 47 relates to accessorial liability.

66․In any event, the principle of legality does not require Courts to interpret a criminal statute contrary to the clear purpose of the legislation: Attorney-General (SA) v Woods-Pierce [2021] SASCA 112; 140 SASR 43 at [62]; Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 at [276]. As Gageler and Keane JJ held in Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 at [314]:

… [i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve.

67․For the above reasons, in our view, the text of s 47(2), construed in context and in accordance with its purpose, does not require any recourse to s 45. Section 47 operates according to its terms, which do not pick up s 45 via s 47(6). In these circumstances, s 45(3) is not engaged.

68․If we are wrong in our construction of s 47(2) and, correctly read, the “incited offence” in s 47(2) is a reference to s 45, we would nonetheless arrive at the same conclusion.

69․If the route to liability under s 47(2) passes through s 45, there would be a conflict between s 45(3), which requires the substantive offence to be committed before liability can arise, and s 47(5)(b), which provides that a person may be found guilty of the offence of incitement “whether or not the offence incited was committed”.

70․Various principles of statutory interpretation each indicate that, in the event of such conflict, the legislative direction in s 47(5)(b) must prevail. In particular, s 47(5)(b) is both the more specific of the two provisions (it applies only to offences of incitement) and the later of the two provisions: Ross v The Queen [1979] HCA 29; 141 CLR 432 at 440 and Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation [1980] FCA 45; 29 ALR 333 at 347.

71․Most importantly, however, in accordance with s 138 of the Legislation Act, a resolution of the conflict which achieves Parliament’s purpose must be preferred to one which does not. As the High Court held in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions whilst maintaining the unity of all the statutory provisions.

72․As outlined above, the Explanatory Statement to the 2018 amendments expressly clarified that s 47(5)(b) was inserted “to remove any doubt that a person may be found guilty of the offence of incitement even though the offence incited was an offence a person is taken to have committed pursuant to section 45, and the offence incited was not committed.” (emphasis added). This clear statement of the legislative purpose compels the conclusion that any conflict between s 47(5)(b) and s 45(3) should be resolved by reading down s 45(3) as not applying to offences of incitement.

73․For completeness, we observe that neither our preferred interpretation or the alternative interpretation of s 47(2) requires us to consider the correctness of the decision of Wigney J in Holliday (CA) concerning the proper construction of s 45, or whether Refshauge J’s agreement with that decision was such that Wigney J’s reasoning should be viewed as part of the ratio decidendi of the decision. As outlined above, on our preferred interpretation, s 45 is not engaged in respect of liability alleged under s 47(2). On the alternative interpretation, Wigney J’s reasoning has been overtaken by the subsequent enactment of s 47(5)(b).

Conclusion

74․The purpose of Parliament in enacting s 47(2) of the Criminal Code could not have been clearer. Parliament intended to ensure that in a situation where person A incites person B to procure the commission of a substantive offence, person A could be guilty of the extended offence of incitement even if the substantive offence is not in fact committed. An interpretation which promotes this purpose must be preferred to one that does not.

75․For the reasons outlined above, we are of the view that the application of s 47(2) does not require recourse to s 45. Sections 47(1) and 47(2) read together create a stand-alone inchoate offence of incitement to procure. In the alternative, we consider that if liability under s 47(2) first requires demonstration of liability under s 45, the conflict that subsequently arises between s 47(5)(b) and s 45(3) must be resolved by giving effect to the declaration in s 47(5)(b) that a person may be found guilty of the offence of incitement whether or not the offence incited was committed. Either of these interpretations give full effect to the purpose expressed by Parliament in enacting s 47(2) and s 47(5)(b). It follows that McCallum CJ was correct to dismiss the application for a demurrer.

76․The hearing of this application has not fragmented the trial, which had been adjourned for reasons unrelated to this appeal. The issue of statutory construction raised by this application is important, and had it been determined in favour of the applicant, it would have finally determined the applicant’s liability in respect of two significant counts on the indictment. Leave to appeal should be granted, but the appeal should be dismissed for the reasons outlined above.

Orders

77․The orders of the Court are as follows:

(1)Leave to appeal is granted;

(2)The appeal is dismissed.

I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of the Court

Associate: A Bucci

Date: 28 August 2023