R v Holliday

Case [2017] HCA 35

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, NETTLE AND GORDON JJ

THE QUEEN  APPELLANT

AND

AARON JAMES HOLLIDAY  RESPONDENT

The Queen v Holliday

[2017] HCA 35

6 September 2017

C3/2017

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Australian Capital Territory

Representation

J White SC with M A Jones for the appellant (instructed by Director of Public Prosecutions (ACT))

S J Odgers SC with J T Lawton for the respondent (instructed by Gabbedy Milson Lee)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Holliday

Criminal law – Incitement – Aiding, abetting, counselling or procuring – Criminal Code 2002 (ACT), ss 45, 47 – Where respondent charged with offence of incitement – Where prosecution alleged that respondent intentionally urged another person to procure third person to commit offence of kidnapping – Where offence of kidnapping not committed – Whether respondent urged commission of offence – Whether offence of incitement to procure offence exists under Criminal Code – Whether aiding, abetting, counselling or procuring commission of principal offence a discrete offence.

Words and phrases – "discrete offence", "incitement", "incitement to incite", "incitement to procure", "principal offence", "substantive offence".

Criminal Code 2002 (ACT), Pt 2.4.
Criminal Code (Cth), s 11.4.
Crimes Act 1914 (Cth), ss 5, 7A.

  1. KIEFEL CJ, BELL AND GORDON JJ.   The appellant, the prosecution, alleged that, while in custody pending sentence for sex offences, the respondent, Mr Holliday, offered another inmate, Mr Powell, a reward for organising people outside prison to kidnap two witnesses, force them to adopt a statement prepared by Mr Holliday that was designed to exculpate him of the sex offences, and then kill them.  Mr Powell did not go through with the plan and reported Mr Holliday.

  2. Mr Holliday was tried on indictment before a judge and jury in the Supreme Court of the Australian Capital Territory on five counts. Count 1 charged that Mr Holliday "attempted by his conduct to intentionally pervert the course of justice" contrary to ss 44 and 713(1) of the Criminal Code 2002 (ACT). Mr Holliday was convicted on that count. Counts 2 and 3 charged that Mr Holliday "committed the offence of incitement in that he urged [Mr Powell] to murder" each witness contrary to s 47 of the Criminal Code and s 12 of the Crimes Act 1900 (ACT). Mr Holliday was found not guilty on these counts.

  3. Counts 4 and 5 charged that Mr Holliday "committed the offence of incitement in that he urged [Mr Powell] to kidnap" each witness contrary to s 47 of the Criminal Code and s 38 of the Crimes Act. The prosecution conducted its case alleging that Mr Holliday urged Mr Powell to procure a third person to kidnap each witness. Mr Holliday was convicted on these counts.

  4. Mr Holliday appealed against his convictions to the Court of Appeal of the Supreme Court of the Australian Capital Territory.  His appeal on…

Continue reading R v Holliday

Sign in free to access the full text

Details
AGLC
R v Holliday [2017] HCA 35
Case
[2017] HCA 35
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Court of Appeal of the Supreme Court of the Australian Capital Territory concerning charges of incitement. The respondent, Mr Holliday, was charged with inciting another person, Mr Powell, to procure a third person to commit the offence of kidnapping. The alleged kidnapping did not occur. The central dispute revolved around whether the respondent's alleged conduct constituted the offence of incitement under the *Criminal Code 2002* (ACT), particularly when the procured offence was not committed.

The legal issues before the High Court were whether the *Criminal Code* recognises an offence of incitement to procure a principal offence, and whether such an offence exists even if the principal offence is not committed. The Court of Appeal had been divided on these questions, with one judge holding that incitement to procure an offence was not a recognised offence when the procured offence did not occur, while another judge held the contrary view.

The High Court, in dismissing the appeal, reasoned that the offence of incitement under s 45 of the *Criminal Code* requires that the person incited actually aids, abets, counsels, or procures the commission of the principal offence, and that the principal offence is committed. The Court found that ss 45(2)(a) and 45(3) of the *Criminal Code* operate as limitations on the offence of incitement, meaning that the commission of the substantive offence is a prerequisite for a conviction for incitement in this context. As the kidnapping did not occur, the respondent could not be convicted of inciting Mr Powell to procure its commission.

Orders

Orders of the court

Appeal 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

KIEFEL CJ, BELL AND GORDON JJ GAGELER J NETTLE J
It is apparent that the trial judge's reference to the "law in this Territory" was intended to invoke s 45(1) of the Criminal Code. However, at no point during the directions was s 45(1) referred to or were further directions given about how s 45(1) might relate to counts 2 to 5. Court of Appeal's decision The Court of Appeal plainly understood s 45 to be central to the prosecution case at trial. Referring to the no case application, Murrell CJ said that[2]:"[Mr Holliday] 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."[2]Holliday v The Queen (2016) 12 ACTLR 16 at 19 [6]-[8]. Murrell CJ's understanding of the prosecution case was shared by Wigney J, who stated that the prosecution case was that "Mr Holliday urged Mr Powell to commit the crime of kidnapping by operation of s 45 of the Criminal Code"[3]. Wigney J also noted that the prosecution case statement "referred to s 45 of the Criminal Code in addressing the elements of the incitement counts"[4].[3]Holliday (2016) 12 ACTLR 16 at 32 [73].[4]Holliday (2016) 12 ACTLR 16 at 32-33 [74]. It was against that background that Wigney J identified the central issue as being "whether the offence of inciting someone to procure a third person to commit an offence is an offence known to the law"[5]. Murrell CJ also considered this as the central issue but in a more qualified manner – whether it is an offence known to law when the person incited does not procure the offence.[5]Holliday (2016) 12 ACTLR 16 at 33-34 [80]. The members of the Court of Appeal agreed in the result but not in the reasons for allowing the appeal in relation to counts 4 and 5. Murrell CJ 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"[6]. Although her Honour did not consider it necessary to finally decide whether the same is true if a substantive offence is committed (given that none was in this case), her Honour's reasoning suggests that the same would be true in those circumstances. [6]Holliday (2016) 12 ACTLR 16 at 23 [20]. Wigney J disagreed with her Honour's conclusion, holding that if a person "urges someone to procure a third person to commit an offence ... the person can be charged with inciting the commission of that offence"[7]. Refshauge J did not decide the issue. Wigney J, with whom Refshauge J agreed in this respect, allowed the appeal in relation to counts 4 and 5 on the basis that ss 45(2)(a) and 45(3) of the Criminal Code – which together provide that a person is taken to have committed the substantive offence only if the person's conduct in fact aids, abets, counsels or procures the commission of the offence by the other person and the other person commits the offence – are "limitation[s] or qualifying provision[s]" within the meaning of s 47(5). The requirement that the substantive offence be committed therefore applied to the offence of incitement. That led Wigney J to conclude that "[b]ecause 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"[8].[7]Holliday (2016) 12 ACTLR 16 at 34-35 [85].[8]Holliday (2016) 12 ACTLR 16 at 41 [112].

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL AND GORDON JJ, GAGELER J, NETTLE J

Full text does not contain this section.