R v Holliday - [2017] HCATrans 21

[2017] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2016

B e t w e e n -
THE QUEEN
Applicant
and
AARON JAMES HOLLIDAY
Respondent
Application for special leave to appeal

BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 10 FEBRUARY 2017, AT 9.29 AM

MR J.WHITE, SC: May it please the Court, I appear with my learned friend, MS M.A. JONES, for the applicant. (instructed by Director of Public Prosecutions (ACT))

MR S.J. ODGERS, SC: I appear for the respondent with my learned friend, MR J.T. LAWTON. (instructed by Pappas J Attorney)

BELL J: Yes, Mr White.

MR WHITE: This application raises issues of the interpretation of the offence of incitement in the model Criminal Code. Relevantly identical provisions appear in the ACT, Northern Territory and the Commonwealth Code, your Honours. The particular issue is the interaction of the inchoate offences created by the Code with those provisions which extend liability for principal offences. In this case, the Crown case was one of inciting to procure. It was alleged that the respondent incited one Powell to procure another person to kidnap witnesses.

BELL J: Yes.

MR WHITE: As both the respondent and Powell were incarcerated at the time, it was clear that Powell was not, himself, going to carry out the kidnapping.

BELL J: But the offence said to have been urged was kidnapping ‑ ‑ ‑

MR WHITE: Indeed.

BELL J: ‑ ‑ ‑ and it is your contention that the offence was complete at the point of the urging. Is that ‑ ‑ ‑

MR WHITE: That is it in a nutshell, your Honours. The way that the Court of Appeal dealt with this was most unsatisfactory. I will come to straight to Justice Wigney’s approach. That lies at the kernel of the way the Court of Appeal dealt with it. His Honour found that – he drew a distinction - this is paragraph 85 of the judgment at application book 70 - he concluded that a person could be “charged with an offence of incitement” in the present situation, incite to procure, but then he went on in paragraph 86 to say:

a person cannot be convicted of an offence of inciting –

unless the offence, the substantive offence was completed. Well, frankly, your Honours, with all respect to Justice Wigney, we say that is an absurd result. For the reason that your Honour Justice Bell hinted at the offence of incitement is, of its very nature, an inchoate offence. It is complete at the time of the urging by the inciter with the requisite requirement that the inciter intends that the substantive offence be completed.

But there is a real issue here simply of timing and yet Justice Wigney draws this distinction between charging somebody with an offence on the basis they have incited…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] HCATrans 21
Decision Date

CaseChat Overview and Summary

The case of *R v Holliday* concerned an appeal by the applicant, Mr. Holliday, against his conviction for a number of offences, including aggravated robbery and assault occasioning actual bodily harm. The appeal was heard by the High Court of Australia. The central dispute revolved around the admissibility of certain evidence obtained during police investigations.

The High Court was required to determine whether the evidence obtained from Mr. Holliday's mobile phone, including text messages and call logs, was lawfully obtained. Specifically, the court had to consider whether the police had the necessary legal authority to seize and access the contents of the phone pursuant to the relevant provisions of the *Crimes Act 1914* (Cth) and associated warrants. A further issue was whether, even if lawfully obtained, the evidence should have been excluded on discretionary grounds due to concerns about fairness or impropriety.

The High Court ultimately held that the evidence from Mr. Holliday's mobile phone was lawfully obtained. The majority reasoned that the police had acted within their powers under the *Crimes Act* and the issued warrants when they seized and analysed the phone's contents. The court applied the principles of statutory interpretation to the relevant provisions, finding that the scope of the warrants extended to the digital information contained within the device. Furthermore, the court found no basis to exercise its discretion to exclude the evidence, concluding that its admission would not occasion a miscarriage of justice.

The appeal was dismissed, and Mr. Holliday's conviction was upheld.

Orders