The High Court has dismissed an appeal against a decision of the ACT Court of Appeal on incitement to procure a third person to commit a criminal offence. The respondent was in custody awaiting prosecution when he asked a fellow prisoner to arrange for a third person, outside the prison, to kidnap two potential witnesses, convince them to adopt an exculpatory statement the respondent had written, and then kill them. The other prisoner did not go through with the plan and instead reported the respondent, who was then convicted on charges of attempting to pervert the course of justice (contrary to ss 44 and 713(1) of the Criminal Code 2002 (ACT)) and incitement to kidnap (contrary to s 47 of the Code and s 38 of the Crimes Act). On appeal, the ACTCA unanimously upheld the respondent’s conviction on the perversion of justice count, but set aside the convictions on the incitement to kidnap charges; Murrell CJ held that a person cannot be charged with inciting someone to procure a third person to commit a crime, and Wigney J held that such a charge was possible, but requires that the crime is actually committed. At issue before the High Court was whether incitement to procure a substantive offence was an offence under the Code; and whether ss 45(2)(a) and 45(3), relating to complicity and common purpose, were ‘limitation[s] or qualifying provision[s]’ within the meaning of the provision on incitement; s 47(5).

The High Court unanimously dismissed the appeal.

Kiefel CJ, Bell and Gordon JJ held that there was no offence of incitement to procure an offence within the Code, and that if that constitutes a gap or omission in the Code, it cannot be filled by a court using the text, structure or legislative history of the Code (at [8]), and that consequently the second issue was not reached (at [9] and [64]). For the plurality, the central statutory question under s 47 is ‘whether the conduct urged, if acted upon as the inciter intended, would amount to the commission of an offence’, and if so, what offence: at [40]. Here, the conduct incited was procuring the commission of the offence of kidnapping, which, if completed by the other prisoner, would not of itself amount to an offence under s 45: ‘Procurement of a substantive offence is not a discrete offence which exists separately from the substantive offence’ (at [41]). Moreover, the legislative history of the Commonwealth Criminal Code (on which the ACT Criminal Code was based) demonstrates that despite early discussion on an offence of incitement to procure, no offence was included in the final code (see at [47]–[53]). That history also revealed that the drafters intended to expressly exclude the offence of incitement to incite (at [54]–[60]), which, contrary to the prosecution’s contentions that incitement and procurement might problematically overlap (see [61]–[62]), shows that the legislative intention was to not capture conduct that amounts to either incitement to incite to procure (at [63]).

Gageler J agreed with the plurality that s 47(1) of the Code was not engaged here. For Gageler J the central question for examining s 47(1) was whether s 45 would have operated to mean that the other prisoner would have been taken to have committed the offence of kidnapping had he ‘done what the jury must have found that [the respondent] urged him to do’, that is, arrange for the kidnapping: ‘The answer compelled by s 45(3) is that, unless that other person went on to kidnap a witness, [the other prisoner] could have been taken by s 45(1) to have committed that offence by procuring it’: at [67]. For Gageler J, this result was not incomprehensible given the policy choices in reflected in the structure of this part of the Criminal Code (at [68]) and against earlier cases on incitement (at [69]–[70]).

Nettle J agreed with the conclusions and orders of the plurality. Nettle J held that s 45 does not create an offence of procuring the commission of an offence by a third person: while the terms of the provision speak of ‘the offence of aiding, abetting, counselling or procuring the commission of the [principal] offence …’, the section does not create a separate offence but rather subjects a person who aids, abets, counsels or procures the commission of a principal offence to be taken to have committed that offence (at [78]–[81]). Nettle J also rejected the argument that s 47(1) might be understood as ‘picking up and including’ the liability of a person who, due to s 45(1), was taken to have committed the principal offence (see at [82]); the difficulty here being that s 45’s language is aimed at accessorial criminal liability arising because the principal offence has actually been committed, whereas s 47(1) ‘uses the expression “an offence” to describe a criminal offence which has not yet been committed’ (at [83]). Nettle J also held that s 47(1) did not apply to an act of urging a person to procure the commission of an offence, noting (at [86]) that s 47

does not apply to the incitement of a person to procure the commission of a principal offence because, even when and if the principal offence is committed, it will remain that the person so incited will not have committed an offence of procuring the commission of the principal offence. Instead, when and if the principal offence is committed, the person so incited to procure the commission of the principal offence will be deemed by operation of s 45(1) to have committed the principal offence; and, at that point, but not before, the incitor will have committed an offence of inciting the person so incited to commit the principal offence.

Finally, Nettle J also suggested there was little assistance to be derived from the recommendations of various drafting committees, stating that the ‘safest guide’ remained the text of the legislation and the need for clarity in framing criminal provisions (at [87]).