Criminal Law

By Aulich


Can you be guilty of planning a crime that isn’t carried out?

Convicted sex offender, James Holliday, attempted to implement a plan from jail to have two crucial witnesses kidnapped and forced to retract their evidence. When Mr Holliday’s plan was foiled, he was charged with inciting another to commit an offence and trying to pervert the course of justice.

It has since become unclear whether the charge of incitement can be laid in cases where no offence was carried out. If it cannot, Mr Holliday cannot be charged as the kidnapping never occurred.

Mr Holliday is a convicted sex offender who is serving a sentence of eight years for abusing three boys. However, at the time he attempted to implement the kidnapping plan, he had not yet been sentenced.

ABC News reports Mr Holliday asked another prisoner to organise the kidnapping. He had typed an eight-page document which included instructions, the witness’s locations and alternative statements he intended the witnesses to read. The kidnapping failed when the other prisoner went straight to the authorities.

Initially, Mr Holliday was found guilty by the ACT Supreme Court of inciting another to organise the kidnapping of the two witnesses and was sentenced to a further 30 months in jail.

However, on appeal the incitement charge was overturned. It was held as the kidnapping had not actually occurred, no crime could have been committed. Justice Michael Wigney stated an offence of incitement cannot occur until the offence the subject of the incitement had occurred.

The ACT Director of Public Prosecutions Jon White has requested the High Court reconsider this point of law. He argues the urging of another to commit an office is sufficient for an offender to be prosecuted. The High Court has heard submissions on this issue and chosen to reserve its decision.