In the Queen v Aaron James Holliday  HCA 35, decided on 6 September 2017, the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of the ACT (see Holliday v The Queen  ACTCA 42 (26 August 2016)).
In dismissing the appeal the High Court held that it was not possible to convict Holliday (the respondent), of “inciting another person to procure a third person to commit a criminal offence” under the Criminal Code 2002 (ACT) (the Code).
It was alleged that the respondent, while in custody pending sentence for sexual offences, offered another inmate, Powell, a reward for organising people outside prison to kidnap two witnesses. The people would then force those witnesses to adopt a statement prepared by the respondent, designed to exculpate the respondent of the offences, and then the people were to kill the witnesses. The inmate, Powell, did not go through with the plan and subsequently reported the respondent to the authorities.
As a result the respondent was tried on indictment before a judge and jury in the Supreme Court of the ACT on five counts; two of which, counts four and five, charged that the respondent had ". . . committed the offence of incitement in that he urged [Powell] to kidnap" each witness contrary to the Code section 47 of and the Crimes Act 1900 (ACT) section 38.
At trial, the prosecution did not allege that the respondent urged Powell to commit the kidnappings personally; instead the prosecution’s case was that the respondent urged Powell to procure a third person to carry out the kidnappings. The respondent was convicted on counts four and five. The respondent then appealed to the Court of Appeal, which set aside the verdicts and entered verdicts of not guilty on counts four and five.
By grant of special leave, the prosecution appealed to the High Court on the following ground of appeal:
The respondent filed a Notice of Contention as follows:
Before the High Court the principal issue was whether the respondent could be convicted of an offence and more specifically, the offence of inciting the commission of an offence, by urging Powell to procure a third person to commit the substantive offence of kidnapping.
The High Court held that, at least in circumstances where no offence of kidnapping was committed, the respondent could not be convicted of urging Powell to commit the offence of kidnapping contrary to the Code section 47.
In the view of the majority of the High Court in order for a person to be convicted of an offence of incitement under the Criminal Code section 47, that person must have urged the commission of a discrete offence. The majority of the High Court concluded that procuring the commission of an offence is not a discrete offence under the Criminal Code.
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Queen v Aaron James Holliday  HCA 35 and supporting summaries and transcripts.
Holliday v The Queen  ACTCA 42 (26 August 2016)
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