The Queen v Holliday - [2017] HCATrans 123

[2017] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C3 of 2017

B e t w e e n -
THE QUEEN
Appellant
and
AARON JAMES HOLLIDAY
Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 15 JUNE 2017, AT 10.15 AM

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

MR S.J. ODGERS, SC: May it please the Court, I appear for the respondent with my learned friend, MR J.T. LAWTON. (instructed by Gabbedy Milson Lee)

KIEFEL CJ: Yes, Mr White.

MR WHITE: Thank you, your Honour. Your Honours, section 47 of the Criminal Code (ACT), which is a Model Criminal Code, makes it an offence to urge the commission of an offence. In this case, the respondent, who was incarcerated, offered money to a fellow inmate, Powell, to organise people outside the prison to kidnap Crown witnesses and to force them to adopt a statement which the respondent had drafted. The respondent provided the statements and instructions to Powell, but Powell did not take any significant steps in the matter and reported the matter to authorities. The question to be determined is in doing what he did, was the respondent urging the commission of an offence?

Now, your Honours, the way that the Crown put the case at trial is conveniently set out in the judgment of Justice Wigney in the Court of Appeal. It is at page 84 of the appeal book at paragraph 73 of his Honour’s judgment. The Crown Prosecutor said:

I should outline that it’s not alleged that the accused intended Darren Powell to commit the kidnapping and murder personally as he was in prison himself at the time, rather that Mr Powell was urged to procure other people or other persons to commit the offence. Now, as a question of law, procuring others to commit the offence would make Darren Powell guilty of committing the actual offence to procure himself. It’s just a mechanism by which we would say the accused urged Darren Powell to commit the (indistinct) offence.

Your Honours, the case was put by the learned judge to the jury in similar terms. Now, your Honours, it is said against us that there are two ways of committing the offence of kidnapping which is the substantial offence with which – which was incited on the Crown case, but we say there is only one offence of kidnapping. The reference by the Crown to “procuring” was simply a reference to – or a description of the way in which Mr Powell was to participate in the respondent’s plan. So, in urging the commission of the offence of kidnapping, the respondent urged a particular course of action which would involve Powell, if he in fact participated, through to…

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 123
Decision Date

CaseChat Overview and Summary

The Queen brought proceedings against Holliday in the High Court of Australia. The dispute concerned the interpretation and application of provisions within the *Criminal Code Act 1995* (Cth) relating to the offence of child sexual abuse material.

The High Court was required to determine whether the definition of "child abuse material" under the *Criminal Code Act 1995* (Cth) extended to material depicting acts that, while sexual in nature, did not involve penetration or direct sexual contact between individuals. Specifically, the Court considered whether the statutory definition encompassed material depicting simulated sexual acts or acts of sexual indecency that did not involve physical contact.

The Court reasoned that the ordinary meaning of the words used in the definition of "child abuse material" did not require physical contact or penetration to constitute an offence. It held that the legislative intent was to capture a broad range of conduct that exploited children, including the creation and possession of material depicting sexual acts that were harmful and exploitative, regardless of whether penetration occurred. The Court applied principles of statutory interpretation, favouring a construction that gave effect to the evident purpose of the legislation in protecting children from exploitation.

The appeal was dismissed.

Orders