R v Holliday [2017] HCATrans 21 (10 February 2017)

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R v Holliday [2017] HCATrans 21 (10 February 2017)

Last Updated: 10 February 2017

[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

Copyright in the High Court of Australia

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 to procure but them only being liable to be convicted if the substantive offence has been completed. We have been so bold as to describe this as a requirement of a condition subsequent, in other words, the completion of the substantive offence and we say that is completely inconsistent with the principles relating to incitement, your Honours.

GAGELER J: Well, he seems to attribute that to section 47(5).

MR WHITE: He does. We say, your Honours, that section 47(5) in its reference to an offence is referring, in this instance, to the offence of kidnapping, not the offence of procuring kidnapping. Indeed, there is no offence of procuring kidnapping. To speak of procuring kidnapping is to rely upon the provisions of section 45 to attribute liability to a person who has procured the kidnapping.

That is true in a situation where accessorial liability is sought to attach. Clearly the offence must be completed and it is only then that liability attaches but our submission is that section – is really a simple submission, section 47(5) in referring to an offence is referring, in this instance, to the offence of kidnapping, not any combination of procuring kidnapping.

BELL J: The concept of any defence procedure, limitation or qualifying provision that we find in section 47(5) appears elsewhere in Chapter 2 of the Code.

MR WHITE: It does.

BELL J: As I understand your submission, there is some uncertainty in relation to the scope of that provision which, of itself, would justify the grant of special leave.

MR WHITE: Indeed, the provision has four concepts. There is an issue, first of all, whether they are indeed four concepts or three concepts. Such authorities as have dealt with them have tended to combine together the words “limitation or qualifying provision” as though that were one expression but we say the legislative and report background of the Code indicates that there are intended to be four provisions and, indeed, the reference to a qualifying provision seems to be a drafting device to catch everything that might not be caught within the first three words.

So there has been some debate, inconclusive in intermediate courts, about what those expressions mean. The difficulty with the debate is that what is often specified to be qualifying provisions, on closer examination often turn out to be simply elements of an offence.

Now, there is a New South Wales case that we refer to in our submissions where Justice Hodgson deals with this in a slightly different context and puts forward the example of self-administration of a drug and the inference seems to be that possibly the fact that the person who self-administered the drug was pregnant was a qualifying provision. But we would say in fact that is simply an element of the offence. Now, the Crown would need to make out the fact that the person who administered the drug was pregnant.

BELL J: Justice Hodgson was of the view that whatever scope you give to the provisions in terms of section 47(5), a qualifying provision does not embrace an element of liability.

MR WHITE: Yes.

BELL J: That carries with it the notion – perhaps consistent with your submission as to section 58 of the Code – that one is looking, in terms of qualifying provisions, at those that place an evidential burden on the accused.

MR WHITE: Yes.

BELL J: Is that your submission?

MR WHITE: That is our submission and we say section 45, the provisions referred to by Justice Wigney, are not of that character. They simply provide a pathway for liability to attach to a person who procures an offence. Of course, in that situation, as I have said, the substantive offence has to be committed but that does not qualify the offence in this instance of kidnapping. In other words, it does not qualify the principal offence. So, those are our submissions, really in a nutshell, your Honours.

BELL J: Yes, I think we have the point.

MR WHITE: Yes.

BELL J: We might be assisted by hearing from Mr Odgers, unless there is some further matter.

MR WHITE: No, there is nothing further. Thank you, your Honours.

BELL J: Yes, thank you. Mr Odgers.

MR ODGERS: Thank you, your Honour. The first contention in respect of 47(5) that the Crown advances is that it only applies to an offence as constituted, if I could use the language, substantively. So their argument is that 47(5) only operated in respect of a limitation or qualifying provision applying to an offence of kidnap as created by section 38 of the ACT Code.

BELL J: Yes.

MR ODGERS: The fatal difficulty with that argument is that, as my friend himself said, there is no offence of procuring a kidnap. The effect of section 45 is that if you procure an offence, in this case procure a kidnap, then you, in fact – a law, I should say – commit the offence of kidnap. That is made even clearer by 45(2) which says however the person commits the offence, in this case the kidnap, because of this section, only if – and then it refers to - - -

BELL J: I suppose it depends upon how you view it, Mr Odgers. On one analysis, the offence that is urged is the offence of kidnapping, albeit the person incited is a person who, on the basis of the incitement, will commit the offence by way of procuring another but the offence that is the subject of the section 47 count is itself kidnapping.

MR ODGERS: I understand what your Honour is saying but if one – what the Crown is contending is that 47(5) should be given a very narrow reading which limits the word “offence” to a situation where the offence is created substantively and where the Crown is not relying on an extension provision, if I can use that language, to make you liable for the offence. As I have explained, the operation of 45 is that you do commit the offence of kidnap.

There is nothing within the terms of subsection (5) which would support this very narrow reading. We say that the only possible interpretation is that 47(5), when it refers to an offence, it extends to a situation where A is guilty of kidnap where A procures B to kidnap. So that if the conditions, requirements, of 45(2)(a) and 45(3) do fall within those general words “defence, procedure, limitation or qualifying provision” or, more precisely, “limitation or qualifying provision” as Justice Wigney held and, we say, correctly, then the only conclusion is that that applies to the offence of kidnap so that, therefore, the operation is that it also applies to the offence of inciting kidnap in circumstances whereas here the Crown is relying on 45(1) to make A guilty of kidnap.

BELL J: When is the offence complete?

MR ODGERS: It depends on how the Crown puts its case. If the Crown says that, let me say B – so, the situation here is A procures B to kidnap. So, if the Crown was running its case against B it would be a situation – or a kidnap – or it would be – I withdraw all of that. If A incites someone to kidnap then at that time it is when the inciting occurs, clearly, and the limitations of 47(5) do not apply because we are talking about elements in that situation.

But if the Crown is seeking to take advantage of an extension provision as in 45, so that it is not going after the actual situation where a person does incite a kidnapping but is going after a person who is inciting someone else to procure a kidnapping then the requirements of 47(5) kick in. The effect of that is that any limitations that arise under 45 will operate for the incitement so that the limitation under 45 that you do not procure and, therefore, you do not kidnap pursuant to 45 unless the substantive offence has been committed by this other person so that requirement also kicks in, which means that, of course, the answer to your Honour’s question is that if that is the basis of liability or incite then liability only arises when the kidnap occurs.

BELL J: Yes. So, on that analysis, where a person incites another to procure a third person to commit an offence, be it kidnapping, murder, what have you, the offence is complete when the substantive offence, in fact, occurs and, in such a case, one can attach liability to the original inciter and if the substantive offence does not occur, there is no liability. Is that your analysis?

MR ODGERS: That is exactly right, your Honour.

BELL J: Yes.

MR ODGERS: I think we are using the term “substantive offence” as a form convenient here - - -

BELL J: Yes.

MR ODGERS: - - - but, strictly speaking, you have kidnap created by two statutory provisions. You have kidnap by 38, where a person kidnaps, and you have kidnap created by 45 in combination with 38 where a person procures someone to kidnap and that person, if the kidnap proceeds, is guilty of kidnap themselves. So I am not at cross-purposes with your Honour.

BELL J: Yes.

MR ODGERS: I think one needs to be careful about the language of “substantive offence” in this context.

BELL J: Yes.

MR ODGERS: Perhaps if I could just turn briefly to the words of “limitation or qualifying provision”. We adopt Justice Wigney’s analysis. His Honour found no basis within the terms of the statute to limit those broad words. Onuarah limited them so they did not extend to elements and, of course, there is no issue here that the requirements of 45(2)(a) and 45(3) are not elements. They are conditions to make – conditions of guilt – epexegetical, I think, is the language that was used in LK of the 45(1) creation of an offence via procurement.

So the Crown contended before the Court of Appeal that the word “limitation” should be limited to a temporal limitation. But there is no basis for such a limitation of that word and we adopt what Justice Wigney said that these cover a broad range – reliance on what the Gibbs Committee report said does not assist because that only recommended two words – “procedure” and “limitation” – and other words have been added subsequently. The MCCOC report clearly - - -

BELL J: Mr Odgers, can I just ask – for your submission in relation to that put by the Director that one would understand qualifying provision by reference to section 58 of the Code dealing with the evidential proof of exceptions, exemptions, excuses, qualifications and justifications required by – or provided by the law creating the offence, as I understand it, it is suggested that one would read subsection (5) in light of that when it speaks of a qualifying provision.

MR ODGERS: Yes. Just before I specifically answer that, of course I think limitation is also part of the - - -

BELL J: Yes.

MR ODGERS: - - - colloquy of words and one that Justice Wigney relied on and we see no basis for arguing that 45(2)(a) or 45(3) could not properly be regarded as limitations on the imposition of liability under 45(1). But, to answer your Honour’s question directly, the first point I make is that 58 does not use the term “qualifying provision”. It uses the term “qualification”. So, firstly, one might ask, was there a clear intention it was to be used – have the same meaning when it is a different formulation. There is nothing, as I am aware, in the MCCOC report to support a conclusion that “qualification” and “qualifying provision” should be understood in the same way.

They appear in completely different statutory contexts. Obviously, they are going to be – the meaning you accord to them is going to be affected by the surrounding words, so we accept that and that was the Crown’s position in respect of 47(5). So at the end of the day it is an argument which does not, we say, have much going for it for the reasons I have articulated.

BELL J: Yes.

MR ODGERS: We say that Justice Wigney’s analysis seems impeccable. The attempt to limit 47(5) in the way that the Crown advances it just cannot succeed because to draw a distinction between different kinds of offences when they concede that there is no offence of procure kidnap, it is not an offence.

The last thing I would say is that if the Crown is right about limiting 47(5) in the way they propose, so an offence means an offence substantively created, to use the language your Honour used, then that would no doubt follow through to the word “offence” in 47(1). If a person urges the commission of an offence, presumably you would use the concept in the same way in the provision which, of course, would have the effect that the respondent in this case would not be guilty because he did not urge – I understand your Honour might say well, he sort of did, but the Crown case is he urged somebody else to procure somebody to commit the offence. That was the basis of liability and on the Crown’s logic with regard to 47(5) it would also follow that he would not be guilty given the limited operation of 47(1). May it please the Court, those are our submissions.

BELL J: Thank you, Mr Odgers. There will be a grant of special leave in this matter. May I just take up with you, Mr White, just turning to your proposed ground, I wonder about proposed ground subsection 1. It reads:

The Court of Appeal erred in finding that a person cannot be convicted of incitement on the basis that they incited another to procure a third person to commit an offence –

It seemed to me that Justice Wigney did not embrace that proposition. Justice Refshauge found it unnecessary to decide and the Chief Justice did embrace that proposition, so I just wonder if that requires - - -

MR WHITE: Yes, the difficulty is that really on that issue it is not one all so much as one and a half all, if I might say so. In other words, Justice Refshauge did not decide that point which was the point that the respondent had taken before the Court of Appeal but went on to agree with Justice Wigney on the second point, which leaves that point in a very unsatisfactory situation. It does seem to us, with all respect, your Honours,

that the Court would, if it is considering this matter, need to consider those issues, in any event.

BELL J: As I understood from the respondent’s submissions, the respondent would wish to - - -

MR WHITE: Put on a notice of contention.

BELL J: It is not that the issue might not be the subject of the grant but it is just how it is framed.

MR WHITE: Yes. Well, indeed, your Honour, if there were to be a notice of contention then that would be a way that the Court could deal with the matter.

GAGELER J: It might just be a problem of undue particularity in the expression in the ground of appeal.

BELL J: It is not that the issue cannot form part of the grant. It is just that it seemed to me to be an inapt way of describing the decision of the Court of Appeal in the circumstances.

MR WHITE: I take your Honour’s point.

BELL J: Mr Odgers, do you wish to say anything in that respect?

MR ODGERS: Your Honours, obviously, we would like to avoid having to go through the rigmarole of putting on notices of contention and we would be very grateful if a grant of special leave was made in respect of both issues. I understand the point, though, that it was not the Court of Appeal who erred in respect of particular (i), it was rather that it was Chief Justice Murrell who is said to have erred in respect of particular (i) and it may be that the grounds can be reformulated to reflect that fact.

BELL J: Very well.

MR ODGERS: If the Court pleases.

BELL J: Yes, thank you. There will be a grant of special leave. If those who instruct you can collect the directions from the Registry in relation to the timetabling for submissions. Thank you.

AT 9.54 AM THE MATTER WAS CONCLUDED